1st. The transcript in Hastings et al. v. Wimmer et al. This shows that a judgment by confession was rendered in that case on the sixth day of July, 1850, and upon this judgment the execution upon which the sale was had was issued.
At this time we had no statute on the subject of confession of judgments; no suit was pending before the Court who rendered the judgment, nor was any proceeding pendingor instituted according to any mode known to our statute. Statute of 1850, 428, secs. 1 and 22; Hoover v. Hanna, 3 Blackford, 48; Dewhurst v. Coulthard, 3 Dall. 409.
2d. The second or confirmatory deed. This deed is dated in May, 1857. If its contents were admissible in evidence, it could have no effect as a deed, for the Deputy executing it had no power to do so at the time he did--after the expiration of the term of office of his principal. The power of completing the execution of the writ is given to the successor of the Sheriff. Statutes of 1850, 447, sec. 209. And if the principal had no power to act in such case after the expiration of his term, the deputy had none, of course. But it may be said that this statute does not change the common law, and notwithstanding the successor may complete the service of the fi fa., still this statute does not prevent the old Sheriff or his Deputies from doing whatever is yet undone under it at the time of the change of officers, provided the proceeding had been commenced before the change. Neither the deeds or the return show that the statute had been complied with. Welch v. Joy, 13 Pick. 477.
As to the powers ofthe Deputy after the expiration of the term of his principal. Billingall v. Duncan et al., 3 Gillman, 477; Tuttle v. Jackson, & c., 3 Wendell, 213--224; Elkin et al. v. The People, 3 Scam. 208, 551; Jackson v. Collins, 3 Cowen, 89.
This whole proceeding has been against one principle established by the authorities--that the officer who begins the execution of the writ must do all that is to be done under it.
JUDGES: Baldwin, J., delivered the opinion of the Court. Field, J., concurring.
OPINION
BALDWIN, Judge
Upon the statement in this case several questions arise:
1. It is argued that the judgment confessed by Wimmer et al. in the suit of Henley & Co. against him and others is void. We think not. The judgment having been rendered in open Court upon an allegation of indebtedness, and an appearance by the parties, whatever errors intervened, they cannot, at the instance of any one not a party to the judgment, be invoked to set aside or show the judgment a nullity. The Court had jurisdiction both of the parties and the subject matter, and no manner of exercising that jurisdiction makes void the action of the Court. We are not satisfied that under the statute of 1850 (p. 454, sec. 293) there was any substantial error in the proceedings connected with and including the judgment confessed; but it is wholly immaterial whether there were or not, or how many, or how gross, the jurisdiction having attached, the judgment could not be collaterally attacked by a stranger. Smith v. Randall, 6 Cal. 47; Lowe v. Adams, 6 Cal. 277, in this Court; Saunders v. Caldwell, 1 Cowen, 622.
2. The next objection by the defendant below is, that there was no return by the Sheriff on this execution of his proceedings under it after the levy. But it has been often held that this is not indispensable. While it is undoubtedly the duty of the Sheriff to make this return, and while it is important as evidence of a permanent and authentic character that he should do so, the title of the purchaser does not depend upon his performance of this duty. The purchaser has no control over the conduct of the officer in this respect; nor is it just or reasonable that he should be responsible for the remissness or negligence of the Sheriff in the discharge of such an office. The purchaser rests for title upon the judgment, execution, levy, sale and deed; and he need show no more to entitle him to whatever rights the defendant in execution had in the property sold. The authorities are uniform, we believe, on this subject. See Ten Eyck v. Walker, 4 Wend. 462, and cases.
3. One point taken, however, is fatal to the plaintiff's recovery. The deed purporting to be executed in 1857, long after the expiration of the Sheriff's term of office, is signed and acknowledged by one Todd, as Deputy of the Sheriff Rogers. But it nowhere appears that he had any authority to execute the deed in the name of the Sheriff, or that he was ever the Deputy of the Sheriff, or ever had anything to do with the levy or sale. No authority is adduced to show that a man, merely by his own act, professing to be the Deputy Sheriff of another--that other out of office--can, by signing and acknowledging a deed in the name of the old Sheriff, give effect to such deed as a conveyance of land sold, or pretended to be sold, under execution, during his principal's term. There is no evidence, except this deed, that this land ever was sold under execution; and the proceedings, so far as they go, seem to have been conducted by a different Deputy from Todd. If the old Sheriff could, under these circumstances, have given a deed which would have been prima facie evidence of the facts it recited--a point we do not decide--certainly a person professing merely to be or to have once been his Deputy, has no such power under the facts disclosed in the record. If Todd had any authority, either by virtue of his office, or otherwise, to execute a deed in the name of Rogers, the authority ought to have been produced.
Judgment is affirmed.