Opinion
September 1806.
"A copy, A. B., clerk," is a sufficient certificate of the transcript of the record of a judgment.
For a purchaser at execution sale, the record will be good if it recite that an execution issued without setting it out verbatim. [See Park's Lessee v. Larkin, 1 Tenn. 101.]
A misrecital of the judgment in a sheriff's deed will not affect its validity, for, it seems, the deed need not refer to the judgment; and if it can be clearly shown that the sheriff sold under the judgment produced, it will be sufficient.
MILLER objected to the reading this record and deed. First, the certificate of the clerk is not sufficient. He should state that, as clerk, he certifies the record of a certain suit. From the deed it evidently appears that there was no judgment to warrant the execution under which the sheriff sold and the plaintiff bought. There was a judgment between the same parties in February, 1799, but this is not the judgment which is recited in the deed.
WHITESIDE argued e contra.
[ S. C., ante, 182.]
Ejectment. — A sheriff's deed was produced, which recited a judgment obtained the 21st of August, 1798. the record produced shows a judgment recovered February term, 1799, in Sullivan County Court. The record was certified thus: "A copy, A. E., clerk," c.
I am strongly inclined to think that it is not necessary to refer to the judgment in the deed at all. I am of opinion it is surplusage, and that if it can be clearly shown that the sheriff sold under the judgment produced it is sufficient. The caption of the record produced shows that it is a record of Sullivan county. It begins as usual "pleas before," c. The record is sufficiently certified. It was also objected that the execution was not set out verbatim, nor shown to have been returned, but only that. "an alias issued," c. By the Court: Where a ministerial officer is sued by a stranger, for an act which is official, he must show his authority, and that the original was returned, but the same strictness is not necessary when his official acts are called into view in showing title by strangers who are purchasers.
See 1 Dall. 63, 93.
See 1 Johns. Ca. 153, 288; Tay. 12.
Hardin, 293, n.
See 2 Johns. 46; 1 Gould's ed. Esp. N. P. part 2, 300, 312.