#### Sexton, trustee, &c. vs. Rhames.

A judgment roll may be signed by a deputy cleric, and it need not appear on the roll that the clerk was absent when it was signed.

The neglect of the clerk to comply with the statutory provisions which required him to endorse upon a judgment roll the time of filing the same, and make a reference to the book and page where the judgment was recorded, did not invalidate the judgment nor render the roll inadmissible in evidence.

The printer’s affidavit attached to a copy of a notice of a sheriff’s sale of land, stated that the notice was published in a certain newspaper “ for six weeks successively, commencing,” &c. The sheriff's certificate of sale showed that notice of the sale had been published in the proper newspaper once in each week for six successive weeks, and posted as required by law: *Held,*that the return of the sheriff must be presumed to be correct, and that the proof of the notice was sufficient.

The conditions imposed by sec. 99, chap. 102, R. S., 1849, upon a junior judgment creditor, in order to give him a strict right to acquire the title of a senior judgment creditor, were intended for the protection of the senior creditor, and may be waived by him.

“Where both parties claim under the same third person, it *isp'imafaoie*sufficient for the plaintiff to prove the derivation of title from him without proving his title.

A complaint alleged that the plaintiff had been, since the 11th of June, 1858, the owner in fee of certain land of which the defendant unlawfully withheld possession. Answer: 1. A general denial. 2. That the defendant was tenant of J. R., who held title under a decree of a certain court, rendered on the 15th of October, 1855, (set out in *Jtcse verba),*by which it was adjudged that on the 6th of March, 1855, the legal title to the land in controversy was in Robert R., who, on that day, for a valuable consideration, executed a deed to said J. R., which was intended to convey the same, but by mistake described the wrong tract of land, and that said deed be reformed and decreed to be a deed conveying to J. R. the land in controversy. The plaintiff having proved a sale of said land upon an execution on a judgment against Robert R. in favor of L. *&*Co., perfected on the 16th of April, 1855, and that he, as a junior judgment creditor, had redeemed from L. & Co. pursuant to the statute, and received a deed from the sheriff, it was *held,*that the special answer admitted the legal title to have been in Robert R. on the 16th of April, 1855, notwithstanding the general denial, so that no proof of that fact was necessary.

*Held,*further, that as the plaintiff was not a party to the suit between J. R. and Robert R., he was not concluded by the decree therein, but had a right to inquire into the *bonafides*of the sale from Robert R. to J. R., and to dispute the fact that a mistake had been made in describing the land sold.

APPEAL from the Circuit Court for *Dodge*County.

The case is stated in the opinion of the court. The sheriffs certificate of sale, referred to in the opinion, showed that notice had been published in the proper newspaper, once in each week for six successive weeks, and posted as required by law. The defendant’s answer was verified..

*100November 19.

*/Smith & Ordway,*

in support of tlie plaintiff’s right to the sheriff’s deed, either as a redeeming creditor, or as a purchaser of the prior judgment-and the certificate of sale thereon, cited *Van Rensselaer vs. Sheriff, &c.,*1 Cow., 443 ; *Rx parte Penn. Iron Go.,*7 id., 540, 554; *Vaughn vs. My,*4 Barb., (S. C.) 159; 19 Johns., 342; 1 Cowen’s Treat., 76; and contended that when both parties claim under the same third person, it is sufficient to prove the derivation of title from him without proving his title (2 Greenl. Ev., 308); and that the title of the person under whom both parties here claim, was admitted by the answer.

*Shan & McFetredge*and *M M. Jackson,*for respondent,

contended that the general denial in the answer covered every point at issue, and nothing in the special plea could be taken as an admission against the defendant, citing *Stracy vs. Blake,*1 Mees. & W., 168; *Knight vs. McDowall,*12 A. & E., 438 ; 1 Phil. Ev., 744 ; 8 Johns., 109 ; 6 Cow., 113.

*By the Court,*

Cole, J.

When the appellant had closed his case and rested on the trial in the court below, the respondent moved for a nonsuit upon the grounds: 1st. That the plaintiff had not shown that he had a judgment which was a lien or charge upon the land, nor had he shown that he redeemed or attempted to redeem the same. 2d. That the plaintiff had failed to show that the judgment debtor, Robert Rhames, at any time was the owner of the premises in fee, or had any interest therein, or that the fdaintiff was entitled to the possession of the premises. 3d. That the plaintiff had shown no valid conveyance to himself of the land in controversy.

The action was to recover possession of real estate, and the title of the appellant was based upon a sheriff’s sale and deed, had upon a judgment in an action wherein Littell and Baker were plaintiffs and Robert Rhames and Robert Rhames, jr., were defendants, which judgment was perfected on the 16th day of April, 1855. The appellant, with others, recovered a judgment subsequently against the same defendants, and within the twenty-seven months from the sale of the premises on the Littell and Baker judgment, and as trus*101tee for bimself and co-plaintiffs, redeemed from Littell & Baker, and tbe deed of tbe sheriff was made to him in trust. for bimself and bis co-plaintiffs.

On tbe trial several objections were taken to tbe admission in evidence of tbe judgment rolls in tbe cases of *Littell et al. vs. Rhames et*al., and *Sexton et al. vs. Same*defendants, and of tbe sheriff’s deed, but all of tbe objections were overruled by tbe circuit court, and, as we think, very properly. Tbe objection that tbe judgment rolls were signed by tbe deputy clerk instead of tbe clerk bimself ought not to prevail. Tbe clerk bad tbe power to appoint a deputy to perform bis duties in his absence (sec. 58, chap. 10, E. S. 1849), and we do not suppose it was necessary to state upon this judgmént roll that tbe clerk was absent. . Again, it is said tbe clerk omitted to perform some ministerial duty in reference to these judgment rolls, such as stating tbe time they were filed and referring to tbe page of tbe record, &c. But tbe neglect of tbe clerk to make these references, which evidently are for convenience in examining tbe records of judgments, could not invalidate tbe judgment. Tbe records were filed and tbe j udgments docketed, and everything done necessary to make them a lien upon tbe real estate of tbe judgment debtors.

An objection was made to tbe proof of publication of tbe notice of sale, tbe printer stating in bis affidavit, that tbe notice was published in tbe Horicon Argus “ for six weeks successively, commencing,” &c. Tbe printer, in framing bis affidavit, adopted tbe exact words of tbe statute. Sec. 78, chap. 102, B. S. 1849. Besides, tbe sheriff certifies in tbe certificate of sale offered in evidence, that be gave tbe proper notices of sale, and states in what manner tbe notices were given; and this return of tbe sheriff must be presumed to be correct. That is a sufficient answer to tbe objection. Again, it was insisted that tbe appellant did not show that be complied with all tbe provisions of tbe statute to entitle him to redeem from a senior judgment creditor, &c. But tbe conditions imposed by tbe statute (sec. 99, chap. 102, E. S. 1849) to be complied with by tbe appellant in order to give him a strict right to become a purchaser from Littell & *102®ak-er’ S11CE as presenting a certified copy of tbe docket of judgment, with an affidavit of tbe amount due tbereon, &c>¡ were ma^ters for tbe protection of tbe senior creditors, and which tbey might waive if they saw fit. It seems they did not insist upon a compliance with tbe statute in this particular, being willing that *Sexton*and others should acquire tbe title after their judgment was satisfied. Ordway swears that both Littell and Baker directed him, when *Sexton*paid tbe amount of their judgment, to bold tbe sheriff’s certificate of sale for *Sexton’s*benefit, and when tbe deed was due, to have it run to *Sexton.*Ordway was tbe attorney for all tbe creditors, and this arrangement entered into by tbe parties unquestionably authorized tbe sheriff to give tbe deed as be did. There can be no doubt that *Sexton*and bis co-plaintiffs bad a valid judgment against Rhames, and that be redeemed from Baker and Littell. *Ex Parte The Penn. Iron Co.,*7 Cow., 540. Tbe first point made in tbe motion for a non-suit was, therefore, not sound.

Tbe next point made was that tbe appellant failed to show that tbe judgment debtor, Robert Rhames, at any time was tbe owner of tbe premises in fee, or bad any interest therein, or that be was entitled to tbe possession of tbe premises.

After a general denial in bis answer of all the allegations in tbe complaint, tbe respondent proceeded to set up another distinct ground of defense. He alleges that one John N. Rhames, bis lessor, was tbe owner of tbe land described in tbe complaint, and that said John N. claimed title in fee under a decree of tbe circuit court of Dodge county, made on tbe 15th day of October, 1855, in a case between said John N. and Robert Rhames and wife, and then tbe decree is set out *lime verba.*From tbe decree it appears that on tbe 6th of March, 1855, tbe title to tbe premises was in Robert Rhames ; that on that day be sold tbe same to tbe lessor of tbe respondent for a consideration therein named, and Robert and wife made and executed a deed for tbe same, but there was a mistake in tbe description of tbe land, tbe wrong tract being described therein; and that John N. commenced a suit in chancery to reform tbe deed and to have tbe title to tbe correct tract (tbe one in dispute) decreed to be in him *103from and after the said 6tb of March; and that such a decree was rendered on the 15th of October, 1855. Now it will be. seen, here was a direct admission in the answer, that the title to the premises was in Robert Rhames long after the Littell and Baker judgment was docketed. What reason is there for saying that the appellant could not avail himself of this admission of record? We know of none. Was the appellant under the necessity of showing that the title to the property was in Robert Rhames so that the lien of the Littell and Baker judgment attached, when this fact was admitted in the answer ? We think not. Both parties claim under Robert Rhames, and it was sufficient to derive title from him without proving his title. 2 Greenl. Ev., § 307. It is true, should it appear that Robert, in good faith and for a valuable consideration, had sold and conveyed the land to John N. before the judgment against him was perfected, then the lien of that judgment would be subordinate to the outstanding equity in John. This is very clear. But as the matter then stood upon the evidence and admissions in the answer, it did appear that title to the property was in Robert Rhames when the judgment was docketed. The appellant was not a party to the chancery suit, and therefore his rights' were not concluded by the decree in that cause. He had a right to inquire into the *bona ftdes*of the sale from Robert to John N. Rhames, and to dispute the fact that a mistake had been made in describing the land sold and conveyed. It is said that the appellant could only recover on the strength of his own title, and not on the weakness of the title of the adversary. We suppose this is a sound position. But had not the appellant established a *prima facie*right to recover upon the evidence and admission in the pleadings ? We think he had. The respondent held the affirmative under the second answer. But it is further insisted that the respondent made a general denial, putting in issue every fact alleged in the complaint, and that the admission of a fact in the second answer was not available against the first. The complaint, however, does not attempt to set out the chain of title. It alleges, in substance, that the appellant, on the 11th of June, 1858, was seized in fee of the premises, and was entitled to *104Possess^orL ^13 same> an<l that respondent nnlaw-fully withheld that possession. These were the matters put jgg^e ^ tbe general denial. The answer then proceeds †0 state the respondent’s defense : that at such a time the title to the premises was in Robert Rhames, and that his lessor, John N. Rhames, -acquired it in a certain manner. And while we can see nothing inconsistent or repugnant in the two answers, we still think that under the system of pleading adopted by the Code, the admission of the fact that at a time after the docketing of the Littell and Baker judgment, title to the property was in Robert Rhames, was an admission of which the appellant could avail himself, and which he need mot substantiate by testimony.

The third ground relied on in the motion for a nonsuit, that the appellant had shown no valid conveyance to him of the land in controversy, is already disposed of in what has been said upon the first point in the motion.

The judgment of nonsuit must be set aside, and a new trial awarded.