June Term, 1860.

#### Eastman vs. Harteau.

The decision in *JBarteim vs. Eastman,*6 Wis., 410, adhered to without re-examination of its grounds, a motion for a rehearing in that case having been argued and overruled, and the question involved having arisen under an old statute no longer in force.

The provision of the statute in force in 1838, requiring the judge to sign the record at the end of each day’s proceedings, was directory, and such record is admissible in evidence, and a judgment entered therein valid, though not so signed by the judge.

APPEAL from, the Circuit Court for *Brown*County.

This suit was commenced on the 4th of June, 1856, to recover the possession of lot No. 28, in the north ward of the city of Green Bay. The declaration was in the ordinary form in use before the enactment of the code. Plea, the general issue. The cause was once before in this court, and is reported in 6 Wis., 410, and came on again for trial, at the October term, 1858, in the Brown circuit court, when, by stipulation between the parties, the following facts were admitted. First. That on the 80th day of May, 1838, the réal estate described in the plaintiff’s declaration was owned and possessed by Joseph Dickinson. Second. That the said Joseph Dickinson died on the 7th day of June, 1838, never having sold or conveyed the said real estate. Third. That the said Joseph Dickinson, at his decease, left a widow, Mrs. Emily Dickinson, and two children, Jane and Emily; that the said widow and children resided upon the property in question at the time of the said Joseph Dickinson’s death, and continued to réside there for less than a year thereafter; that Jane died in the fall of 1838, and that Emily, one of said children, was married to Lieutenant Benjamin Forsyth, in the year 1852; that she, the said Emily Forsyth, died in July, 1854, without issue, and that the said Benjamin For-syth, who was the husband of said Emily, is living and now resides at Chicago, in the state of Illinois. Fourth. That the defendant, *Louis Earteau,*at the time of the commencement of this action, was in possession of so much of said real estate as is described in the verdict of the jury on the *268former trial of tbis canse, and held tbe same by virtue of a lease dated September 1st, 1847, as tbe lessee of Daniel Wbitney, whose title to tbe said premises is relied upon by tbe defendant, and disputed by tbe plaintiff

Tbe plaintiff, to maintain tbe issue on bis part, beyond tbe matters in tbe foregoing stipulation contained, produced Jonathan Wheelock as a witness, who testified in substance as follows: “I am tbe father of Emily Dickinson, wife of Joseph Dickinson. After tbe death of Dickinson, she married William Boot. Dickinson, at bis death, left two children, Emily, aged between three and four years, and Jane, about one year old. I was administrator on Dickinson’s estate; was appointed June 21st, 1838. At tbe time of my appointment I resided in Creen Bay; I lived at Creen Bay until tbe summer of 1847. Since that time I have lived at Lawrence, about five miles from Creen Bay. I knew Barlow Shackleford; be was an attorney. No other attorney by that name practiced here to my knowledge. From 1838 to 1841, I was in tbe habit of seeing Shackleford frequently; I knew him personally. I have known Daniel Wbitney about forty years; Wbitney was here when I came here, in 1833, and has lived here ever since. I continued to act as administrator until 1851, or 1852, I think.”

Tbe plaintiff thereupon offered to prove by said witness that no *scire facias,*or any other process or proceedings in tbe case of *Comstock & Andrews vs. Joseph*Dickinson, was ever served upon him, which evidence was objected to by tbe defendant as immaterial, and tbe court sustained tbe objection, and plaintiff’s counsel excepted.’

Tbe plaintiff then gave in evidence a deed of conveyance of tbe premises in controversy, from William Boot and wife to tbe plaintiff, for tbe consideration of $1,200, dated May 27th, 1856, and recorded on tbe same day. Here tbe plaintiff rested.

Tbe defendant offered, in evidence, a book which was admitted by tbe counsel for tbe plaintiff to have been found in tbe office of tbe clerk of said circuit court, and purporting to be a record of judgments in tbe district court of tbe Hnited States, for Brown County, in which was tbe following entry:

*269*“*Territory of Wisconsin, county of Brown, ss. Be it remembered, at tbe May term of tbe Dis. court of tbe IT. St’s for tbe County of Brown, sitting as a circuit of tbe IT. St’s, began and beld at Depere, tbe seat of justice of said county, on Monday, tbe 28tb day of May, A. D., 1838, before tbe Hon. W, 0. Fraser, judge of said court. It is presented by B. SbacMeford, attorney for D. A. Comstock and Bobert W. Andrews: — David A. Comstock, and Bobert W. Andrews vs. J. *Dickinson*— In *assumpsit, on note of hand.'*‘ $317,18: New York, August 6th, 1833. Six months after date, I promise to pay to tbe order of Mr. Townsand & Harris, three hundred and seven 18-100 dollars. Jos. DickINSON.’

Indorsement: — 1 Pay order of Comstock & Andrews, Towns AND & Harris. Pay order B. Shackleford, Esq., Comstock & Awdrews.’ _ And afterwards at tbe said term to-wit: Wednesday, tbe 30th May, A. D. 1838, comes tbe said pl’fs by their attorney, B. Shackleford, and also comes tbe s’d deft in bis proper person, J. Dickinson, in said court, and says, that be cannot deny but that tbe said pl’f, D. A. Comstock and B. Andrews, has sustained damages in tbe premises, to tbe am’t of three hundred and ninety-three dollars and eighteen cents ($393,18). Therefore, it is considered by this court, that tbe said pl’f D. A. C. and' B. A. do recover of tbe said def’t, J. D., tbe said damages in tbe premises as above confessed, am’t to three hundred and ninety-three dollars and 18 cents; also, tbe cost and charges of this court, am’t to three dollars and thirty-one cents and 1-4 cts., together with tbe damages, in all am’t to tbe sum of $396,49, 1-2. Three hundred and ninety-six dollars and forty-nine and a half cents :

18% cents for docket the case son, of D. A. C. *&*R. Andrews vs. J. Dickin-12% cents for Pl’ff’s app.

6% cents for filing 1 paper.

12% “ “ Def’ts app. 3,81%

10 “ “ Ent. Judg. 6%fif.

87% *“ “*Cost. tax. 12% satisf.

12% “ *“*Sig. record. 25 entries.

18% “ “ Motion. 18% rules.

37% “ *•' ass.*damages.

12% '• “ ent. on calender.

1,12% *“ “*record. 62, execution issued 15 June, 1839.”

*270Tbe defendant objected to the admission of this evidence, Eiist. Because there was no proof that the same was a judgment record. Second. Because the order of judgment is not signed by any clerk or, any judge. Third. Because there are no names of either party in the order of judgment and no judgment against any one; but the court overruled the objection, and admitted said evidence, and defendant’s counsel excepted. The defendant then called John B. A. Masse as a witness, who testified that he was clerk of said circuit court, and had been since January 1857; that he had the papers in the case of *Comstock & Andrews vs.*Dickinson; that he found them among the files in his office; that he had the execution, note and order to issue execution. The counsel for the defendant offered to read said papers in evidence, to which the plaintiff objected, because — 1st. The execution, by its face, purports to have been issued after the death of Joseph Dickinson, the defendant therein named. 2d. It was issued more than one year after the death of Dickinson. 3d. It does not bear teste of any term or of any day in term of any court. 4th. It is not in the form prescribed by law. 5th. It was issued without any judgment to support it. 6th. The amount of the judgment described in it is different from the amount of the “judgment” read in evidence. 7th. The execution is void upon its face. 8th. It is immaterial, because the return shows no levy or sale. ,9th. It is not returnable at any term of any court. But the court overruled the objections, to which ruling the defendant’s counsel excepted, and said execution, with the in-dorsement and return thereon, were read in evidence as follows:

[l. s.] Territory of Wisconsin, county of Brown, ss. The United States of America, to the Sheriff of the county aforesaid, greeting: Whereas, judgment against Joseph Dickinson, was recovered by David A. Comstock and Robert W. Andrews,, in the district court of the United States for the county of Brown, at the May term, one thousand eight hundred and thirty-eight, at the suit of the said David A. Corn-stock and Robert W. Andrews, aforesaid, for the sum of three hundred ninety-three dollars and -18 cents damages, *271and three 93-100 dollars costs of suit by the said, in this behalf expended, whereof execution remains. These are, therefore, in the narne of the United States of America, to command you that you levy distress upon the goods and chattels of the said Joseph Dickinson, as aforesaid, excepting such as the law exempts, and the want thereof, of his lands and tenements, and make sale thereof according to law in such cases made and provided, to the amount of said sums, and of the same so made, make due return within sixty days. Hereof fail not. Witness the Hon. Andrew G. Miller, judge of our said court, this fifteenth day of June, A. D. 1839. GARDNER Childs, Clerk.

Nov. 27,1839. — Eeceived of Chas. Tidier, Sheriff, satisfaction in full of this execution. B. Shackleford, Pl’ffs’ Att’y.”

Indorsement on same execution: — “David A. Comstock and Robert W. Andrews vs. Joseph Dickinson. *U. St’s District Court, May Term,*1839. Execution issued 15 June, 1839.

Damages,.§393 18

Cost, ....... 8 93

This Ex., ...... 68

$397 74

Int. from 30 May, 1838; returned Nov. 28, 1839, at 9 o’clock, A. M. B. Shackleford. — This execution satisfied in fulL Chas. Tüller, Sheriff.”

The defendant then offered in evidence a sheriff’s deed for the premises in question, to Daniel Whitney, executed by Charles Tuller as late sheriff of the county of Brown, dated December 6th, 1841, and duly recorded, reciting a sale of said premises under an execution issued out of the district court of the county of Brown,, in a cause in which Comstock & Andrews were plaintiffs and Joseph Dickinson defendant, commanding him to make the damages named in the judgment, of the personal property, or in default of that, of the real estate of J. Dickinson. To the admission of this deed in evidence the plaintiff objected, because — 1st. The execution upon which the land was sold was void. 2d. It does not *272appear that any certificate of sale was ever executed and filed according to *the statute.*3d. It does not appear that the premises were ever sold. 4th. If sold, it does not appear that the time for redemption had elapsed from the time of sale to the execution of the deed; which objections were overruled by the court, the plaintiff’s counsel exceptingi thereto, and the deed vjas read in evidence.

Thereupon the counsel for the plaintiff offered to prove by the administrator of Joseph Dickinson, that the sale to Whitney, by the sheriff, if any, was made without his consent, and without the judgment being revived by *scire facias*or otherwise, against him or against the heirs; that the administrator allowed the time for redemption to expire under an agreement with Whitney that he could redeem it at any time by paying ten per cent, interest thereon, and that the administrator never abandoned the claim of the heirs to said lot 28; that he consulted eminent counsel thereon years before the sale to the plaintiff, and was advised that the title to the premises was in the heirs, notwithstanding the sale to Whitney, if any there was; to the introduction of which evidence the defendant objected; the court sustained.the objection, and the plaintiff excepted.

Yerdict and judgment for the defendant, from which the plaintiff appealed.

*James H. Howe,*for appellant :

1. At common law a judgment upon which no execution had issued, must, after the death of the defendant in the judgment, be revived by *scire facias,*first against the personal representatives, and, if no assets can be found in their hands, then against the heirs and terre-tenants. *Pennoir vs. Brace, 1*Salkeld, 320; 2 Tidd’s Pr., 1119; Poster on Scire Facias, 71 law Lib., pp. 2-99; 2 Wms. on Ex’rs., 1700; 3 Bac. Abr.,404.

2. An execution issued without such a revivor, is void at common law, and a sale of real estate under it passes no title. *Heapy vs. Parris,*6 Durn. & East., 368; *Hildreth vs. Thompson,*16 Mass., 191. Writs of *elegit*could not issue in England without writs of *scire facias,*to revive them, against the heirs and terre-tenants. 2 Saunders, 50 and 124.

3. These rules of the common law were not repealed by *273the statutes of Michigan, in force in this state in 1888. [The argument on this point by the counsel on both sides, is omitted, as the court declined to re-examine the law upon that subject as settled in 6 Wis., 410.]

4. There never was any judgment against Joseph Dickinson. The book from which the judgment (so called) was copied, was authenticated only by th. fact that it was found in the office of the clerk of the circuit court. The entry is not signed by any person, and there were never any pleadings in the cause, nor any record made of it The judgment is in favor of “ Pl’f D. A. C. & R A.,” and against “ Def’t J. D.,” and is void for uncertainty.

5. The court erred in admitting the sheriff’s deed without any proof that any certificate of sale was ever executed and filed according to the statute, or that the premises were ever sold, or that before the execution of the deed the period limited for redemption had expired. Where one has a special statute authority to convey lands on doing certain previous acts, the purchaser must show that *all*those acts have been performed, independent of the recitals in the deed of conveyance. 7 Cow., 88 ; 4 Wheat., 77 ; 12 Wend., 74; 16 id., 563; 2 John., 280; 12 id., 213; 7 id., 535; 2 Starkie, 199; 11 Wend., 422; 1 Bing., 209; 1 Cow., 622.

6. The court erred in excluding the evidence offered, that the administrator allowed the time for redemption to expire under an agreement with Whitney for the redemption at a lutuxe time on the payment of ten per cent, interest, and that the claim of the heirs to the premises was never abandoned.

*E. H.*Ellis, for respondent:

1. The judgment was properly admitted. The book in which it was found purported to be a record of judgments in the district court of the United States for Brown county. It plainly shows a judgment in favor of David A. Comstock and Robert W. Andrews against Jos. Dickinson, and although not signed, must be presumed to have been duly rendered by the court, and recorded by the clerk. *Briggs vs.*Clark, 7 How., (Miss.,) 457; *Pender vs.*Felts, 2 Smedes & Marsh., 535; *Coleman vs.*McKnighi, 4 Mo., 83; *Venable vs.*McDonald, 4 *274Dana, 336; *Buclcmaster vs. Carlin,*3 Scam., 104; *Swiggart vs. Harber,*4 id., 364; *Hall vs. Law,*2 "Watts & Serg., 135; *Porter vs. Brisbane,*1 Brevard, 881; *Cash vs. Lyle,*2 id., 183; *Gayle vs. Foster,*Minor, 125; *Matthews vs. Thompson,*3 Ham., 272; *Ordinary vs. McClure,*1 Bailey, 7; *Kellogg, ex parte,*6 Yt. 509; *Fgerton vs. Hart,*8 id., 207; *Doe vs. Greenlee,*3 Hawks’ Rep., 281, cited in 4 PM1. Ev., Oow. & H.’s notes, p. 286, *Vilas vs. Reynolds,*6 Wis., 228, and cases there cited.

2. ■ The execution was properly received in evidence. The omission of the sheriff to set forth a levy and sale in Ms return cannot affect the purchaser. *Wheaton vs. Sexton,*4 Wheat., 506; *Voorhies vs. Banlc of U. S.,*10 Peters, 477; *Gates vs. Gaines,*10 Yt., 346; *Barnes vs. Barnes,*6 id., 388; *Ciarle vs.*Foxcroft, 6 Grreenl., 296; *Sanders’ heirs vs. Norton,*4 Monr., 464.

3. The sheriff’s deed was properly admitted. If no certificate of sale was ever executed and filed according to the statute, the purchaser is not prejudiced. *Jaclcson vs. Young, 5*Oow., 269; *Jaclcson vs. Page,*4 Wend., 590 ; *Carson vs. Doe,*6 Smedes & Marsh., 111. The time for redemption had expired before the date of the execution of the deed. In support of the deed counsel also cited *Sumner vs. Moore,*2 McLean, 59; *Jaclcson vs. Rosevelt,*13 John., 97; *Jaclcson vs. Bartlett,*8 id., 361; *Owen vs. Simpson,*3 Watts, 87; *Bishop vs. Gregory,*5 B. Monroe, 359; *Mitchell vs. Fvans,*5 How., (Miss.,) 548.

4. The plaintiff’s offer to prove that the administrator allowed the time for redemption to expire under an agreement with WMtney, was properly rejected, because it does not appear that the administrator ever tendered to WMtney the amount alleged to have been agreed upon for the redemption, and tMs after a lapse of seventeen years from the time of sale; and because the administrator had no authority to make such an agreement; and because the agreement was not in writing, as required by the statute of frauds. Stat. Wis. Ter., 1839, p. 102, § 8.

5. In the cases cited from 1 Salkeld, and 6 Burn. & East, the executions were held to be erroneous and irregular but not void. Where executions have been irregularly or erro*275neously issued, tbe courts nave uniformly beld that although •they might be set aside *before*a sale of real estate under them, yet *after*sale the purchaser acquires a good title, .the , executions in such cases being not void, but voidable merely. *Speer vs.*-Sample, 4 Watts, 367; *Jaclcson vs. Be Bancy,*13 Johns.. 549; *Bennett vs. Hamill, %*.Schoale & Lefroy, 566.

July 10.

*By the Court,*

DixoN, C. J.

We have been strongly urged to overrule the former decision of this court in this case, as to the effect of the statute of Michigan in dispensing with the necessity of a *scire facias*in order to give any validity to the execution sale under which the respondent claims title. But whatever might be the opinion of the court as now constituted, upon that question, were it for the first time presented, we are not inclined to re-examine the decision already made, upon which there was a motion for re-hearing argued and overruled. The question arose under an old statute no longer in force, and is not likely to arise again. And such being .the case, we do not’ think the occasion justifies us in re-examining for the purposes of this case only, a question which has been once solemnly decided by the court, and that decision adhered to upon a motion for re-argument.

This leaves the single question, whether the record of this judgment was properly admitted in evidence on the last trial. The book was found in the proper custody for the records of the court. It purported to be such record, and the only ground of objection seems to be that it was not authenticated by the signature of the judge or clerk. It is true there was a provision of the statute in force at the time, requiring the judge to sign the record at the end of each day’s ¡proceedings. But there is fair reason for saying that this provision was directory, and that it was not intended that its non-observance should invalidate the judgments. We have been at some pains to inform ourselves as to the practice from those familiar with it at that early day, and among others from one of the judges of that district, and we learn that this provision of the statute was then regarded as directory, and that owing .to the inability of the clerk to complete the record of each, day’s proceedings in time, its observance was often ne-*276glectecL Under tírese circumstances we must bold tire record sufficient. In addition to tbe authorities cited by tbe respondent’s counsel, tbe following may be referred to in support of its admissibility, *Boston vs.*Weymouth, 4 Cush., 542; *Read vs.*Sutton, 2 Cush., 115. In tbe latter case tbe docket entries, wbicb were not authenticated in any other manner than in this case, were held admissible as evidence and entitled to tbe same effect as a full record, tbe full record not •having been perfected at tbe time. The court said: “Tbe docket is tbe record until tbe record is fully extended, and tbe same rules of presumed verity apply to it as to tbe record. Every entry is a statement of tbe act of tbe court, and must be presumed to be made by its direction, either by a particular order for that entry, or by a general order, or by a general and recognized usage and practice, wbicb presupposes sucb order.”

Tbe judgment must be affirmed, witb costs.