¶1dissenting.
¶2I concur in affirming the judgment; but I dissent from the^opinion of the court on the question of the sheriff’s deed and the recitals therein being evidence of the execution and judgment, so as to dispense with the production of the record of the judgment and execution. In my opinion, the defendant’s instruction on this point should have been given. The sheriff’s deed was admitted in evidence. I have no doubt the deed was admissible in evidence ; but the instruction raised the question of the effect of the deed on the title, when admitted in evidence, whether it amounted alone to full proof that the title and estate of the judgment debtor in this land had thereby been conveyed and passed to the purchaser at the sheriff’s sale. My conclusion is, that it did not amount to such full proof.
¶3It is conceded by all that, at common law, the production of the record of the judgment and execution would have been indispensable ; but it is maintained that the fifty-sixth section of the statute concerning executions has changed the common law rule, has made tlie deed and the recitals in it prima facie evidence of the existence of the judgment and execution, and thrown upon the other side the burden of proving the contrary. I cannot think that srieh is the proper effect of the words of the statute, nor that such was the intention of the Legislature. The facts required to be recited are simply the names of the parties to the execution, the date o.f it, the date of the judgment, and other particulars of it as recited in the execution, the description of the property, and *36the time, place and manner of the sale; and the deed is to. be evidence of the facts so recited and stated therein.
¶4Neither the existence of a valid judgment creating a lien upon the land, nor the existence of a valid execution, nor of a levy made under the execution whereby a valid lien may have been created on the land, is stated, or required to be stated and recited therein, but only the names of the parties, the dates, and the other particulars of the judgment as recited in the execution. The object of the recitals, as it seems to me, was merely to identify the deed as' a deed executed in pursuance of a sale made under an execution and judgment of those dates, parties, and other particulars; so that when the record of the judgment and execution should be produced in evidence also, it might then be seen that the deed had been executed in virtue of a sale made by authority of that judgment and execution, and not of some other. A reason for this provision may be found in the difficulty, without some recitals of this kind, of identifying the sheriff’s deed, the execution, and the judgment, when produced in evidence together, as connected parts of the same series of facts and the same chain of proof. Questions of variance are thereby avoided. But if the deed and the recitals are to have the effect of being evidence and proof, in the first instance, of the existence of a valid judgment and execution of those dates and parties, then the deed becomes the standard by which a variance is to be ascertained; and if the judgment and execution, when the proper evidence of them should be produced by the other party, should happen to vary materially from the recitals in the deed, this evidence —that is to say, the judgment and execution — would have to be excluded, and not the deed. The plaintiff might effectual! y answer and say, “ that is not the judgment and execution to which my deed refers”; and it would be impossible for the defendant to prove a negative. Would not this subvert the legal and fundamental principles of the action of ejectment, and overturn well established rules of property ? *37Under the operation of such a rule a man’s real estate might be taken away from him by the supposed act of the law, and by a sheriff’s deed purporting to be made by authority of law, when no such act or authority ever existed in fact.
¶5If it be so enacted, there may be no help for it but in a repeal of the statute. But has it been so enacted ? The act does not declare what shall be the effect of the deed on the title. It does not declare in terms that either the deed or the recitals shall have the effect to prove, in the first instance, the existence of a valid judgment, or a valid execution, without the production of the only evidence known to the law by which such facts cari be proved and established. It does not say that the production of the record of the judgment and execution may be dispensed with. It is argued that the recitals of the names of the parties and the dates implies the existence of a judgment and execution having these dates and parties. I do not deny that the existence of some judgment and some execution of those dates and parties is in a manner supposed and argumentatively implied ; but the burden of proof rests on the plaintiff in this action to show affirmatively a complete chain of title, and to prove as one essential link in that chain the existence, not only of some judgment, but of a valid and not a void judgment — not only of some execution, but of a valid execution, having those dates and parties. The plaintiff undertakes to prove by competent evidence that the title and estate of the judgment debtor in the land has been passed and transferred to the purchaser at the sheriff’s sale by the act and authority of the law. It is only by virtue of the lien of a valid judgment, or by virtue of a lien created by a valid levy of an execution-on the land, that the title can be acted upon and transferred in this manner.' Without such lien, the sheriff’s deed can have no operation on the title. The deed may be evidence of a sale made as recited, but a sale merely does not pass the title ; it may be evidence of the existence of some execution, of the date and parties named, but that alone would not pass the title ; and it may be evidence of *38some judgment, or even of the identical judgment, but that with all the rest and without more would not show a title passed. It would still remain to be proven that the judgment which existed was a valid and not a void judgment. The only way known to me by which this vital and essential fact can be proved, on an issue of this kind, is by the production of the record, or an exemplification of the record and proceedings in the cause on which the judgment is rendered, in order that it may be seen that the parties were served with process, or otherwise brought before the court; that the court had jurisdiction of the parties and of the cause of action, and -had competent authority to render such a judgment; without all which the judgment would bo null and void. Had the plaintiff, in addition to the recitals in the deed, produced an exemplification of the judgment only, that would certainly have been better evidence, and proved more, than the recitals in the deed; but even that would not have been enough. It would still have come short of full proof. In a case like this, the whole record which concerns the matter in question must be produced — 4 Com. Dig., tit. Evidence, A. 4; 1 Greenl. Ev. § 511. A record is of so high a nature that it cannot be proved but by the record itself, or an exemplification or a copy thereof — lb. tit. Evidence, A. 4. The judgment here is a muniment of title, operates in rem and creates a title, and the record of it is admissible, between these parties, on the same principles that a conveyance which transfers title from one to another is admissible — 1 Greenl. Ev. § 539; Fowler v. Savage, 3 Conn. 96; Bau v. Gratz, 4 Wheat. 213. And when the fact is directly in issue, nothing loss than the whole record can prove the existence of a valid judgment.
¶6It is said that when the existence of a judgment is shown by the recitals, the law will presume that it was a valid judgment. The law presumes nothing in favor of the plaintiff on an issue like this. The burden rests on him to prove his title; and if he fail to make full proof, he must go out of court. I conceive that no presumption of law can be made *39concerning it, neither of its validity nor of its nullity. The case would simply be, that the existence of a valid judgment was not proved. When the plaintiff claims as a purchaser at a sheriff’s sale, made by virtue of an execution against the defendant in ejectment, it is sufficient to show the execution and the proceedings under it, without producing the record of the judgment; for the execution may be presumed to be valid as against him, for the reason, that, being a party to it, he might have moved to set it aside if not issued upon a valid judgment: but when the action is against a stranger, as in this case, no such presumption can be made, and the plaintiff must prove the judgment as, well as the execution. —2 Greenl. Ev. § 316-.
¶7Moreover this statute, if interpreted as claimed for the plaintiff,'would be in derogation not only of the ordinary rules of evidence, but of well established principles of the common law, governing titles to real estate, and therefore to be construed strictly ; but, in my view, there is no need of invoking this rule of construction here, for the language of the act, as it seems to me, does not at all require nor fairly admit of the construction contended for.
¶8The case of Hardy v. Heard, 15 Ark. 184, is cited in support of the contrary opinion; it is a decision directly on the point, but it does not go at large into the reasons, and no authorities are cited. I can only say that neither the decision, nor the reasons given in support of it, are at all satisfactory to my mind, and I cannot believe it is a sound and correct declaration of the law on the subject.