#### Jesse Smith *v.*John W. Smith.

Trespass to try title. It was admitted on both sides that the title was per-feet in *Jesse Smith,*deceased, in his life time — who was the father of both, plaintiff and defendant, and under whom both claimed. The plaintiff to make out his‘title, relied on the proceedings at law for the partition of the real estate of Jesse Smith among his heirs, an order for the sale of the lands, and an actual sale by the sheriff of *the*tract in dispute, at which he became the purchaser, and produced the sheriff’s deed reciting the return . of the commissioners, the order and the sale, dated 4th September, 1835. The original summons and writ in partition, and proceedings, were not produced, and on proof of. their existence and loss, the plaintiff offered as *secondary evidence*the following entries in the sheriff’s books and abstracts from the daily mifiutes of the court, corroborated by the testimony of the officers of the' court and other witnesses : 1. Entry in the sheriff’s' books, 30th January, 1828, “ J. Patterson and wife v. the heirs at law of Jesse Smith, summons in partition.” The plaintiff and defendant were both parties, and were both served. Summons returned to the clerk. (The clerk deposed that he had made diligent search for these proceedings in partition, without having found them.) 2. In the minutes of the court for April term, 1828, an entry relative to the same matter, *“*on the return of the summons in partition, ordered that a writ of partition do issue, directed to certain commissioner's and that they make their return to the next court,” (at the ensuing November term, there was no court.) 3. At April term, 1829, the following entry, “J. Patterson and wife, and others, v. Jesse Smith, adm’r., ordered that a writ of partition do issue,”" appointing Benjamin Gause and others commissioners, who were not entirely the same persons named before. (Mr. Holt, the attorney, deposed that there were *233two motions and orders for writs of partition relating to the same land, hut that there was only one summons.) 4. At Spring term, 1831, an order for extending the writ to make return. The following final order was ■made at Fall term, 1831, “ John Patterson and wife y. Mercy Smith et al. The commissioners having made their return recommending a sale of the premises, ordered that the same he confirmed, and that the sheriff do sell the premises,” &e. (specifying the time and terms.) It was further proved by a witness present, that the land was sold and hid off hy the plaintiff; and by *Todd,*one of the commissioners, that they went upon the land, were at the defendant’s house, that he claimed the part he lived on as a gift from his father. That the commissioners valued the land and recommended a sale, including that portion claimed by the defendant, and that he, the witness, *returned*the proceedings to the clerk’s office. Held competent and sufficient evidence of title in the plaintiff.

It may he questioned whether it was necessary for the plaintiff to produce in this case more than the final order of the court, on the coming in of the commissioners return, for the sale of the premises.

Although the proceedings for partition are to he regarded to all intents and purposes as *a suit,*yet under the act giving jurisdiction at law and the practice upon it, the plaintiffs or claimants are not required to *declare*unless the defendant appear and resists the partition. In that case an issue becomes necessary, and the plaintiff must declare.

In this case the defendant having been served with the *summons,*had an opportunity of setting up his title and making defence; he was called upon to shew cause why the partition should not he made of the premises as the estate of *Jesse Smith,*deceased. It was a suit involving his title to the land, and he cannot *now*be allowed to make the defence which he omitted to make then. The order for the sale is conclusive as the judgment of a court upon the same subject matter and between the same parties. His defence should have been made before the writ of partition was ordered to issue.

Where in proceedings in partition, an apparent chasm of two years appeared to exist between the order directing the writ to issue and an order allowing further time to the commissioners to make their return, the court would not consider it as affecting the validity of the *judgment;*whether the order for the writ of partition to issue, or the final order for the sale of the premises, on the commissioners return, were to be regarded as the judgment. In either case, the final order confirming the return and ordering the sale, would be considered as curing any apparent irregularity in the previous proceedings.

*Before EARLE, J., at Horry, Fall Term,*1838.

This was an action of trespass to try titles. The following is the report of his Honor the presiding Judge: “ It was admitted *234on both sides that the title was perfect in Jesse Smith, deceased, in his life time, who was the father of both the plaintiff and the defendant, and under whom both claimed. The plaintiff relied on the proceedings at law for partition of the real estate of Jesse Smith among his heirs, an order for the sale of the lands, and an actual sale by the sheriff of the tract in dispute, at which he became the purchaser, and produced the sheriff’s deed reciting the return of the commissioners, the order and the sale,, dated 4th Sept’r., 1835. The original summons and writ in partition, and proceedings, were not produced, and the plaintiff relied on secondary evidence, after proof of their existence and loss, and this consisted of the following entries in the sheriff’s books and abstracts from the daily minutes of the court, corroborated by the testimony of the officers of the court and other witnesses. 1. Entry, 30th Jan. 1828, in the sheriff’s book, proved by the then sheriff, “J. Patterson and wife v. the heirs at Jaw of Jesse Smith, summons in partition.” The plaintiff and defendant were both parties and were both served— summons returned to the clerk — the clerk deposed that he had made diligent search for these proceedings in partition without having found them; 2. In the minutes of the court for April term, 1828, an entry relative to the same matter, “ on the return of the summons in partition, ordered that a writ of partition do issue directed to certain commissioners, and that they make their return to the next court. At the ensuing November term there was no court. 3. At April Term, 1829, the following entry,. “ J. Patterson and wife, and others, v. Jesse Smith, adm’r., ordered that a writ of partition do issue, appointing Benjamin Gause, J. G. Cochran, *John*Thomas, William Tpdd and John W. Durant, commissioners, &c., not entirely the same persons named before. Mr. Holt, the attorney, deposed that there were two motions and orders for writs of partition relating to the same lands, but that ther'e was only one summons. 4. At Spring term, 1831, an order for extending the time to make return. The following final order was made at Fall term, 1831, “John Patterson and wife v. Mercy Smith et ah, the commissioners having made their return recommending a sale of the premises, ordered that the same be confirmed, and that the sheriff do sell the premises on,”&c. (specifying the time and terms.) *235It was proved by a witness present that the land was sold and bid off by the plaintiff; and by Todd, one of the commissioners, that they went upon the land, were at the defendant’s house, that he claimed the part he lived on as a gift from his father, that the commissioners valued the land and recommended a sale, including that portion claimed by the defendant, and that he (the witness) returned the proceedings to the clerk’s office.

On a motion for a nonsuit, I held that the proceedings in partition were proved by competent evidence to let in the sheriff’s deed to plaintiff, and overruled the motion. The defendant then set up title in himself by possession to the land in dispute and offered the following evidence: The tract was originally granted for 600 acres, lying on Brick Creek Swamp. Only a portion of it was claimed by the defendant, and the main objection to his recovery was the want of proof as to the extent of his claim on the boundaries of the land alleged to have been given. The proof was ample that the defendant entered by permission of the father on his marriage, or soon after, and has continued in possession twenty-five years; directly after he settled there his father was heard to say he had given him the place. He then lived at another place on the same tract, and died in 1826. So that the defendant must have been in possession twelve years before his father’s death. Two plats were used in evidence, principally one made by Hemingway, in 1815, which divides the tract in three parts; why, was not fully explained. Smith, the father, had on the marriage of several others of his children, settled them on land, without conveyance, which none of them subsequently claimed. There was no evidence to connect the defendant’s possession, or the alleged gift of the father, in reference to boundary and interest with the part called the Malcolm tract, in which he lives, unless it be the testimony of Stanahand, (in writing,) who said that the defendant’s father related to him that his son, (the defendant,) had wished to remove upon the Timothy tract, (see the plat,) but had changed his mind and wished to remain on the Malcolm tract, adding, “ he is now on the Malcolm tract and I intend he shall have it.” It did not sufficiently appear when this occurred. The plat could not have been made until several years after the marriage of the defendant, *236and after he entered on the land. The proof of an actual gift was rebutted to some extent, by proof of a declaration of the father’, that he *intended*the land for his son, but had never given him the scrape of a pen, and a declaration of the defendant himself, when asked if he intended to allow the commissioners to value the land, he replied, “he did not know what else to do, as he had no better title than the rest of them.” The only witness who proved the declaration by the father of an actual gift, was one Chalker, who heard him say immediately after the marriage, “ that he had given him the place,” but he did not know the number of acres nor the boundaries.

I thought the proof was ample that the defendant was regularly a party to the proceedings in the partition, that it was a suit involving his title to the land, that he assented to the -valuation by the commissioners, that he acquiesced in the judgment of the court ordering the sale, and therefore thought he should be concluded from setting up an adverse title against the purchaser at sale. The question of gift or -no gift, was submitted to the jury. On the supposition that the defendant was not made a party to the proceedings, admitting that there was an actual gift of the part occupied, a proof of possession under permission, which would constitute *good*title; yet the evidence was insufficient"as to the boundaries to allow the defendant to recover. The jury was charged accordingly and they found for the plaintiff. As there was proof of an actual possession of eighteen acres of upland and six of swamp, cleared and cultivated, if-the circuit was in error on the first ground, perhaps the defendant might have recovered to the extent of his inclosures.”

The defendant appealed and now renewed his motion for a non-suit on the following grounds: 1. That there were no proceedings under the first writ of partition, adduced by plaintiff, and that it did not appear from the minutes of the court that defendant was ever made a party to the second writ of partition. 2.. That the proceedings in partition was defective, by the lapse of two years, between the second and third order for the extension of time for the return of the writ. 3. That there was no evidence adduced of a judgment having been entered up.

*237Also, for a new trial on the following grounds: 1. That his honor erred in charging the jury, that if the defendant, was informed of the proceedings in partition and did not come in and object to their confirmation, he was concluded from afterwards setting up title against the title of the plaintiff, who was a purchaser at the sale. 2. That there was no sufficient evidence of the defendant’s having had legal notice of the proceedings in partition. 3. That there was sufficient evidence of title by possession in defendant, previous to the death of Jesse Smith, sen’r.

Curia, per Earle, J.

The plaintiff derives title immediately from the sheriff, under-a sale made by order of the Court of Common Pleas for Horry, upon proceedings in partition, to which both the plaintiff and defendant were parties. The original summons, the writ and the return of the commissioners, were not produced; but on proof of a diligent search having been made in the public offices, where they should have been deposited, and the well founded belief of those who Had charge of the offices, that they were lost or destroyed, the entries in the sheriff’s books and the minutes of the court, were allowed to show that such proceedings had been had, that the summons had issued and been served, and that on its return and no cause shown to the contrary, a writ of partition had also been issued, directed to commissioners in the usual form. Supposing it necessary to go back beyond the order for the sale of the land upon the return of the commissioners, it is the opinion of the court that the evidence admitted was competent and sufficient. In Cook et al. v. Wood, 1 M'Cord. 139, slighter evidence, though of the same kind, as the title of the cause and an entry of the judge on an old docket, an old subpoena writ endorsed as of the same cause, were admitted' to prove that the plaintiff’s ancestor had formerly brought an action for the same land, which abated by the death of the plaintiff, so as to prevent the operation of the stat. of limitations in favor of the defendant. But it maybe well questioned,, whether it was necessary to produce more than the final order of the court, on the coming in of the commissioners return, for the sale of the premises. In England, the proceedings in partition, in cases where they are allowed at law, are as regular *238and as formal as in any other suit; the summons, the declaration, the plea, the writ to the sheriff and the final judgment. Here there is less formality, and although it is to be regarded to all intents and purposes as a suit,- yet under the act giving jurisdiction at law, and the practice upon it, the plaintiffs or claimants are not required to declare, unless the defendants appear and resist the partition. In that case an issue becomes necessary, and the plaintiff must declare. The defendant here, when served with the summons, had the opportunity of setting up his title and making his full defence. He was called upon to show cause why the partition should not be made of the premises, as the estate of Jesse Smith, deceased. It was a suit involving his title to the land, and he cannot be allowed to make now the defence which he omitted to make then. The order for the sale is conclusive, as the judgment of a court upon the same subject matter and between the same parties. His defence should have been made before the writ of partition was ordered to issue; after that it was too late to plead, although I would not say, that under extraordinary circumstances, the court might not permit him to controvert the right. On the return of the commissioners, having been made a party in interest by service of process, it is a legal presumption that he had notice of all the subsequent proceedings, and supposing the chasm of two years to exist between the order directing ihe writ to issue, and the order allowing further time for the commissioners to make their return, it cannot have the effect of avoiding the judgment, whether we regard the order for the writ of partition to issue as the judgment, or the final order for the sale of the premises on the commissioners return. In either case, I should consider the final order confirming the return and ordering the sale, as curing any apparent irregularity in the previous proceedings. It is the act of the court itself, not of its ministerial officer, (as the renewing of an execution,) and must therefore be presumed to have been regular and legal. In this case, as in other cases, where the plaintiff claims under a sheriff’s deed it is only necessary to prove that the sheriff had authority to sell: a judgment is necessary to authorise a sale of land. In this case the order for the sale is the authority, and so long as the proceedings remain of force, can no more be avoided in this collateral *239way than a formal judgment, regularly entered up and signed, could be avoided by showing that during the progress of the cause, there was a period of more than a year and a day, during which it was not on the docket at all, or was not preserved by regular continuances. If the order for the writ to issue be considered the judgment, as I think it should be, then the subsequent proceedings were only to carry it into execution, and regular continuances were not necessary. ■ The order of April term, 1831, extending the time for making the return, could not have been made without cause shown and notice to the parties, and must be allowed to have the same effect, which I have already said the final order of sale would have, of curing the previous irregularity, (even if continuances were necessary.) To allow judgments, or other proceedings of courts having the force and effect of judgments, thus to be averred against and avoided, would unsettle every thing, and would be a violation of all principle and a departure from all precedent. The proceedings in partition being proved by competent evidence, and being also found sufficiently regular, form a bar to the claim of title now set up by the defendant. The other objections to the plaintiff’s recovery need not be considered.

*■Munro,*for the motion.

The motion to set aside the verdict, and for a new trial, is dismissed.

Gantt, Richardson, Evans and Butter, Justices, concurred.