Everson v. State

• Decision Date: 22 October 1902
• Docket Number: 12,673
• Citation: 92 N.W. 137,66 Neb. 154
• Parties: JOHN EVERSON v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

92 N.W. 137

66 Neb. 154

JOHN EVERSON v. STATE OF NEBRASKA

No. 12,673

Supreme Court of Nebraska

October 22, 1902

ERROR from the district court for Harlan county. Tried below before ADAMS, J. Affirmed.

AFFIRMED.

John Everson, for himself; William Gaslin and Webster S. Morlan with him.

Frank N. Prout, Attorney General, Norris Brown, A. M. Beresford and Gomar Thomas, for the state.

DUFFIE C. AMES and ALBERT, CC., concur.

OPINION

DUFFIE, C.

The plaintiff prosecutes error from the judgment of the district court for Harlan county, wherein he was convicted of the offense of cutting down and destroying certain forest trees growing on land owned by Harlan county, Nebraska. The facts as disclosed by the record before us, are as follows: One Ezra S. Whitney, at one time treasurer of Harlan county conveyed the land in dispute to a trustee for the benefit of his bondsmen, and this land was finally conveyed to Harlan county in settlement of their liability upon the bond. At the close of Whitney's term of office he was short in his accounts, and was informed against for embezzlement, tried, convicted and sentenced to two years and six months in the penitentiary, and also to pay a fine in the sum of $ 22,380, together with the costs of prosecution. While Whitney was confined in the penitentiary under the sentence, execution was issued on the judgment for the fine and costs, and a levy made thereunder, and the land in question sold to Harlan county for the sum of $ 1,340. November 28, 1898, the sale was confirmed by the court and the sheriff directed to make a deed to Harlan county, which was accordingly done; the deed being dated February 13, 1899. The county claimed title through the two conveyances,--the trustee's and the sheriff's deeds. After the levy and sale and the order of confirmation, and on the 29th of November, 1898, Whitney conveyed the premises in question to the plaintiff in error by quit-claim deed, and his defense to the criminal prosecution rested principally upon his claim of ownership in the land by virtue of this latter deed. For the purpose of showing title to the land in Harlan county the state introduced in evidence the sheriff's deed, without first producing the judgment against Whitney or the execution issued thereon, and the plaintiff in error now insists that the deed was improperly admitted as evidence of title in Harlan county.

In the absence of a statute making the sheriff's deed prima-facie evidence of title in the grantee, the rule is inflexible that the judgment and execution under which the sale was made are to be shown, as well as the deed from the sheriff to the purchaser. This rule rests upon the fact that the sheriff, having no title in himself and acquiring none by the execution, is the instrument of the law for the transfer of the title. The transfer is made by the deed, but the authority of the sheriff to effect it comes from the judgment and execution. Hence it follows that this should be produced. Jackson v. Hasbrouck, 12 Johns. 213; Den v. Despreaux, 12 N.J.L. 182. In this state we have a statute making the sheriff's deed prima-facie evidence of the regularity of all prior proceedings. It recites: "The deed shall be sufficient evidence of the legality of such sale and the proceedings therein until the contrary be proved, and shall vest in the purchaser as good and as perfect an estate in the premises therein mentioned as was vested in the party, at or after the time when such lands and tenements became liable to the satisfaction of the judgment." Code of Civil Procedure, sec. 500.

The effect of a similar statute was before the supreme court of Kansas in Shields v. Miller, 9 Kan. 390, 397, where it is said: "The sheriff's deed proves prima facie under said statute that the sale under which it was made was legal. This it could not do, unless it also proved prima facie that the judgment and execution under which the sale was made were also valid. A judgment can not be void, and the sale made under it legal and valid. If the judgment is illegal and void the sale must also necessarily be illegal and void. A sheriff's deed is therefore of itself prima-facie evidence that the grantee holds all the title and interest in the land that was held by the judgment-debtor at the time of the rendition of the judgment, or at any time thereafter up to the time of the sale of the premises; and it is prima-facie evidence of the validity of the judgment itself."

We think there was no error in admitting the deed in evidence without first producing the judgment and execution.

It is next insisted that the judgment against Whitney for $ 22,380 was not the property of Harlan county, that the county could claim no benefit therefrom or interest therein, and that under the provisions of section 5 of article 8 of the constitution the fine belonged to the school fund. Conceding that the judgment was a fine, in the most accurate definition of...