Lessee of Ludlow's Heirs v. Park.

ence to the power. The sheriff's authority depends on the writ, the issuing of which is a ministerial act; there is no direct judicial sanction upon it; and among the multiplicity of executions, there is great opportunity for errors. Not so with the administrator; his authority is the direct order of court, referring to the administrator by name, and pointing out distinctly the act to be performed. The order always remains to show the authority; the record itself, and not a writ ministerially issued, is the substance of the power. This single power is the only one to which [11 the act can be referred; and a mistake in the reference can be attended with no evil consequences. If there should be successive orders, they are all before the same court, perfectly united in their object, to be accounted for all as one act, and resulting in the same charge and liability of the order. If, therefore, in the case of an execution, the recital is immaterial, surely it can not be material in the present case.

It is worthy of remark that some of our statutes expressly require the recital of an execution, thereby implying that without such statutory provision the recital would be unnecessary; but none of them require the recital of the order in an administrator's deed.

In the present case, the order is recited as of December term, 1810; the only thing proposed is, to show that the date of the term only is misrecited; the same court, the same parties and subject matter, the same object; indeed, in every respect the same, except the date of the term.

Even in the case of sale on execution under our present law, would it not be a construction somewhat literal and rigorous, to say the best, to hold that a mistake in the term, at which judgment was rendered, would vitiate the sheriff's deed?

The recital does not give validity to the deed, unless the authority be otherwise shown. The order must still be produced; the recital, therefore, is of no effect, unless it be requisite on common law principles as a rule of conveyancing. It is not evidence of the order itself, and of course can work no injustice in case of misrecital. It is a rule of all conveyances, that they shall be held to operate in whatever way they can; and judges are ever astute in devising a way to make them effectual, although it be one, which the parties never contemplated, or perhaps even knew. If the intention of the parties can be effected, it matters not what rules of

Lessee of Ludlow's Heirs v. Park.

law may be brought into its aid. It may happen that same legal nicety, unknown to the parties, may prevent the operation of the deed in the manner intended; and so, on the other hand, it may happen that some principle of law, equally unknown, may give it validity. And thus the law is at least as effectual in sustaining, as it is in defeating, the intention of the parties. The deed shall operate quacunque via potest; and no principle is more universal. 12] *Suppose the principle contended for on the other side should be followed up, and applied to all administrators' deeds, and sheriffs' deeds at those periods, when the statutes did not expressly require the recital of the execution. In how many instances will it be found that the deed has misstated the term at which the execution issued or the order was made? Judging from general principles, and the analogies to be found in the books, no one would have supposed such conveyances to be utterly void; they might rely upon them with ordinary discretion at least; and we may reasonably presume, therefore, that title is much involved in the question. It will not, then, at this late day, be lightly disturbed.

If we look into the books, on the subject of sales, under the direction of judicial tribunals, we shall find that every court has given the most liberal construction, for the purpose of sustaining them. It is not their aim to search for informalities or defects to defeat the end of the law; but rather to search for principles and analogies, on which to sustain such proceedings, in order that the objects of the law may be answered; that those who put their confidence in courts of justice, or in those on whom courts have conferred this power, may not be misled and deluded; and in relation to deeds and the private acts of parties merely, effect is always given according to the intention if possible, ut res magis valeat quam pereat. Grant v. McLachlin, 4 Johns. Ch. 37; 4 Robt. Adm. 3, 4; Cran. 3, 16, 27; 6 Wheat. 519; 20 Johns. 705; 4 Dall. 220; 1 Dall. 352; 6 Bin. 496.

GARRARD, for the plaintiff:

This case now comes up on a motion for a new trial, predicated on the supposed error of the court in rejecting the defendant's evidence. The whole case is before the court, and the plaintiff's counsel rely on each and all of the objections taken to the defend. ant's title.

Lessee of Ludlow's Heirs v. Park.

The first objection arises on the order of 1810. The deed and order taken together show that the sale was made prior to the granting of the order. No attempt was made to show that the recital of the time of sale was erroneous. It is true *the [13 court was asked to presume that there was a mistake either in the recital of the day of sale or the date of the order. But this they declined. The records of the court supported the date of the order, and the plaintiffs offered to prove the sale to have taken place on the 13th, as recited in the deed, but the court stated it was unnecessary, because the recitals of their own title papers must be taken and held to be true until the contrary was shown. The sale thus made before the order was granted was null and void, and the order of the 17th of December could not aid the title thus acquired. The administrators had no beneficial interest in the estate. They acted merely as the agents of the law to effectuate its provisions. The law did not authorize a sale previous to the granting of the order. Their acts were, therefore, nugatory to all intents and purposes. 3 Cowen, 299. The first question that arose on the order of 1804 was, whether the defendant, under the circumstances of the case, could rely on that order. The plaintiff's counsel insist that he is precluded by the recitals of his own title papers. The deed from the administrators recites the fact that they acted under the order of December, 1810. They looked to and relied on that order as the power to sell the land to the defendant. The argument of the counsel for the defendant proceeds on the ground that there was a misrecital, which would not conclude the defendant, and all the authorities cited are cases of misrecital where there was a full and valid power to do that which had been done. But the facts of this case do not admit the application of a rule, the correctness and justice of which are not controverted. There is no misrecital in the case. In what does the misrecital consist? The deed of the administrators recites that the sale was made on December 13, 1810. The truth of this recital is not controverted; but is confirmed by the very fact that the defendant is driven to rely on the order of 1804 to sustain the sale. The deed recites that John C. Symmes executed to the administrators a deed of trust, to be executed under the order and direction of the court of common pleas of Hamilton county. The deed of trust is before the court and verifies the recital. The deed further recites that the court of com

Lessee of Ludlow's Heirs v. Park.

14] mon pleas, at December, 1810, granted them an order to sell and carry into effect the objects of the trust reposed in them by the deed from Symmes. The records are in evidence, and the recital of the deed is supported by them. Where, then, is the misrecital? There is nohe. The records amply testify that the administrators acted exactly as they themselves recite that they acted. There is no collision between the recitals of the deed and the records of the court. The deed recites a state of facts which is at war with a fair administration of the law and the records show a proceeding entirely null and void.

To relieve the defendant of the dilemma, thus made clear by his own title, and the records on which it is founded, his counsel attempt to shift their ground and shelter him under the order of 1804. In making out title through administrators or executors under our statute, an order is an essential prerequisite to the validity of the deed. They act merely as trustees to execute the law. They have no beneficial interest in the estate which they may be authorized to sell under the law, and their deeds stand in this respect on the footing of sheriffs' deeds.

A sheriff's deed can not be given in evidence, without a transcript of the judgment and execution. They stand in the eye of the law as the basis of the title, and without them the deed is a mere nullity. In order to test the propriety of applying the doctrine of misrecitals to the case under consideration, a case may be supposed. Land is levied on and sold under a judgment of January term of the court of common pleas of Hamilton county, in favor of A. B. against C. D.; an execution is regularly issued, and the levy made and returned-the property advertised and sold— the deed recites all these facts-the purchaser pays his money and accepts his deed. Prior to the judgment, C. D. sells his land to a bona fide purchaser, and executes a deed to him. Could A. B., in an action of ejectment brought by such purchaser, say that there was a misrecital in his deed, and show a judgment of a term anterior to the alienation between the same parties, under which the land might have been levied on and sold? Certainly not. The judgment and order are emphatically the foundation of such titles, and the deed is the best evidence of what judgment or order the sheriff or administrator acted under in making the sale. And 15] when the records *furnish evidence of judgments or orders to correspond with the recitals of the deed, it precludes the idea

Lessee of Ludlow's Heirs v. Park.

that other judgments or orders can be shown to support the deed, when those recited fail.

It is admitted that it was not necessary to recite the order, if the administrator was clothed with full power to sell, and that a misrecital of a valid power could not vitiate a deed otherwise properly executed within the power. 5 Cowen, 526; 10 Johns. 381; 3 Ch. Cas. 101; 9 Johns. 90. These were cases where the power referred to was a valid, subsisting power, and the misrecital was merely in the amount of the judgment or costs. Such mistakes the courts held to be immaterial, because there was a full, valid, and subsisting power, sufficiently identified by the recitals to sustain the sale and deed.

The defendant's counsel have referred the court to Comyn's Digest, title Poair, C. 4, and to title Fait, E. 1, both of which say it is unnecessary to recite the power in executing it; and that the misrecital of a valid power would not vitiate.

The cases referred to in Massachusetts reports seem to have no application to the case under consideration. The point settled in 3 Mass. 399, has never been controverted by the counsel for the plaintiff. So also in 10 Mass. 105, and 11 Mass. 227. To save time both to the counsel and the court, it is admitted to be the settled and incontrovertible law of the land, that purchasers, after a great lapse of time, will not be required to produce strict proof that administrators had taken the necessary oath, or that they had given regular notice of the time and place or sale, and especially when there is evidence that there was a sale at auction under a proper authority.

Such is also the law relative to tax sales of long standing, because it would be unreasonable, after a great lapse of time, to require of the purchaser strict proof of the regularity of tax bills, valuation warrants, notice of sale, etc.

The case in 11 Massachusetts decides what has been held to be the law of the State, time after time, by this court, and its correctness never questioned. If a court of competent jurisdiction grants an order to sell, the propriety of granting such order can never be questioned collaterally in an action of ejectment. In such [16 action the inquiry can not extend beyond the order. But these authorities have nothing to do with the point under consideration, and would not have been noticed, had they not been cited by the