Splahn v. Gillespie.

The case of Weidman v. Weitzel, supra, does not support the doctrine contended for. The return was defective in form, and was made two years after the fact, and more than a year after the action was brought. The court said it was unworthy the name of a regular legal return. The court admitted parol evidence because there was no legal return. This is shown by the ruling in Diller v. Roberts, 13 S. & R. 60, and the subsequent case of Sample v. Coulson, 9 Watts & S. 62, where it was held that the return was conclusive.

We think the following propositions of law are deducible from the authorities which we have examined in the investigation of the subject in hand, and which are hereafter cited:

1. That a return is conclusive against the officer who makes it, and is prima facie evidence in his favor.

2. That a return upon a summons is conclusive between the parties to the action.

3. It is a well settled principle of the English law, that the sheriff's return on an execution or order of sale is not traversable, and the court will not try on affidavits whether the return by the sheriff is false, even though a strong case is made out showing fraud and collusion, but the party must resort to his remedy by an action against the sheriff for a false return. In Connecticut, the return of a sheriff on mesne process is held to be only prima facie evidence, but even in that State he cannot falsify it by his own evidence. In most, and, probably, in all of the other states of the United States, the rule is established, that as between privies to the suit in which the return is made, and privies and the officer, except when the latter is charged in a direct proceeding against him for a false return, the sheriff's return is conclusive and cannot be impeached. A party or privy may not aver the falsity of a return made by a proper officer, without a direct proceeding against the officer, even in chancery.

4. That between third parties the return of an officer is prima facie evidence only of the matters stated in the return.

5. The return of an officer on mesne or final process can be evidence of the facts stated therein, only when the facts recited are official acts done in the ordinary and usual course

Splahn v. Gillespie.

of proceedings. Matters of opinion or excuse for failure to perform a duty can not be made evidence by stating them in the return, but must be proved on the trial. Lindley v. Kelley, 42 Ind. 294, and the authorities there cited; Gwynne Sheriffs, 473 to 477; Crocker Sheriffs, secs. 45, 46, 47; Watson Sheriffs (Phila. ed. Law Lib.) 52, 53; Allen Sheriffs, 57; Small v. Hodgen, 1 Litt. 16; Trigg v. Lewis's Ex'r, 3 Litt. 129; Bibb v. Monroe, 5 Litt. 199; Taylor v. Lewis, 2 J. J. Mar. 400; Hill v. Kling, 4 Ohio, 135; Stewart v. Houston, 25 Ark. 311; Frasier v. Williams, 15 Minn. 288; Hutchins v. County Comm'rs, etc., 16 Minn. 13; Huntress v. Tiney, 39 Me. 237; Hotchkiss v. Hunt, 56 Me. 252; Slayton v. Chester, 4 Mass. 478; Bott v. Burnell, 9 Mass. 93; The Inhabitants, etc., v. The Inhabitants, etc., 11 Mass. 379; Angell v. Bowler, 3 R. I. 77; Stoors v. Kel ́sey, 2 Paige, 418; Gardner v. Buckbee, 3 Cow. 120; Allen v. Martin, 10 Wend. 300; Jackson v. Wood, 3 Wend. 27 ; Townsend v. Olin, 5 Wend. 207; Gardner v. Hosmer, 6 Mass. 325; The Col. Ins. Co. v. Force, 8 How. Pr. 353; Ehleringer v. Moriarty, 10 Iowa, 78; Lawrence v.Pond, 17 Mass. 433; Whitaker v. Sumner, 7 Pick. 551; Miles v. Knott, 12 Gill & J. 442; Bryan v. Brown, 2 Murph. 343; Hamilton v. Adams, 2 Murph. 161; Dunn v. Meriwether, 1 A. K. Mar. 158; Martin v. Ma Cargo, 5 Litt. 293; Haynes v. Small, 22 Me. 14; Wilson v. Loring, 7 Mass. 392; Barrett v. Copeland, 18 Vt. 67; Paxton v. Steckel, 2 Barr Pa. 93; Doty v. Turner, 8 Johns. 20 ; Sheldon v. Payne, 3 Seld. 453; In re Smith, 4 Nevada, 254; Kingsbury v. Buchanan, 11 Iowa, 387; Harper v. Moffit, 11 Iowa, 527; McClure v. Engelhardt, 17 Ill. 47; Wheaton v. Sexton, 4 Wheat. 503.

In Small v. Hodgen, 1 Litt. 16, it was held, that the return of the sheriff is conclusive as to the fact who was the purchaser; and evidence tending to show that another was, or the person there stated to be the purchaser was not, is inadmissible even on a motion to set aside the sale.

In Hill v. Kling, 4 Ohio, 135, the court say: "The authorities show that as between parties and privies and the officer, except where the latter is charged upon its falsity, the return

Splahn v. Gillespie.

is matter of record, and therefore conclusive. The return is at the peril of the officer. If true, it is his protection; if false, he alone is responsible. If a return upon execution can be impeached, or falsified by the parties to the judgment, purchasers at sheriff's sales, whether of personal or real estate, would be without protection. It would be hard indeed, if it was at the peril of the purchaser whether the return of the officer was true or false, especially where he must be absolutely ignorant of the fact."

This court correctly held, in Butler v. The State, etc., supra, that an officer's return on an execution was conclusive against him, but the statement made as the general rule in other cases is loose and inaccurate, and should no longer be regarded as authority. The conclusiveness of a return upon execution is essential to the protection of bona fide purchasers, and while it may, in some instances, produce hardship, its general observance will result in good.

It appears by the pleadings and the evidence that the parties to the original mortgage undertook to practice a fraud, and, if their attempted fraud has recoiled upon their own heads, they should not attempt to throw the loss upon one who is confessedly a bona fide purchaser. The appellant has made no attempt to relieve himself of what he now claims was an unjust judgment.

We think the court committed no error in excluding the evidence offered.

The fifth reason for a new trial was as follows: "The court erred in refusing to allow the evidence of Michael Splahn to go to the jury, that at the time of the commencement of the suit of Timothy Splahn against Michael Splahn and wife, in the Common Pleas of Marion County, which was introduced in evidence by the plaintiff, and at the time of the alleged service of the summons in that case, and at the time of the rendition of the judgment in that case, he was absent from the county of Marion, and that he had no actual notice. or personal knowledge of the commencement of the suit or the pendency thereof, or the rendition of the judgment, until

more than one year

gaged premises."

Splahn v. Gillespie.

after the time of the sale of said mort

The return of the sheriff to the summons in the original action shows that it was served, by reading, on the wife of Michael Splahn, and as to him it was served by leaving a copy at his last usual place of residence. The return was sufficient, and showed personal service on the appellant. Pigg v. Pigg, 43 Ind. 117.

The return, however false, could not have been controverted or impeached in that action, for the purpose of avoiding an appearance to such action. Smith v. Noe, 30 Ind. 117. Surely no one would seriously contend that the return could be impeached in this collateral proceeding.

The sixth reason for a new trial was: "That the court erred in refusing to allow the defendant to prove by Timothy Splahn, the plaintiff in the case of Timothy Splahn against Michael Splahn and wife, commenced and prosecuted in the Common Pleas Court of Marion county, that he never directed an execution to issue in the case of Timothy Splahn against Michael Splahn, and did not know that the execution had been issued at the time, and until after the sale."

The offer was to prove that Timothy Splahn did not order an execution, and did not know that one had been issued until after the sale. It appears of record, that Timothy Splahn had an attorney of record, who had the power to order an execution. It was not proposed to be proved that the issuing of such order of sale was not procured and directed by such attorney. But if the order of sale was issued without authority, it would not affect the title of one who purchased the property without notice of the improvident issuing of the order, and who paid the purchase-money and received a deed before notice of such irregularity. Lewis v. Phillips, 17 Ind. 108; Nunemacher v. Ingle, 20 Ind. 135; Sowles v. Harvey, 20 Ind. 217; The State v. Wilkins' Adm'r, 21 Ind. 216; Watt v. Alvord, 25 Ind. 533; Rhodes v. Green, 36 Ind. 7; Routh v. Spencer, 38 Ind. 393.

The seventh reason was in these words: "The court erred

Splahn v. Gillespie.

in refusing to allow the defendant to give evidence to the jury that the mortgage upon which the decree was rendered, in the case of Timothy Splahn against Michal Splahn and wife, was given to secure the sum of seventy dollars and no more, and that the whole amount actually due upon the mortgage, principal and interest, was paid by Michael Splahn to Timothy Splahn before the execution upon the decree of foreclosure was issued to the sheriff."

The offer as made upon the trial was somewhat different from the manner in which it is stated in the motion. The matter is thus stated in the bill of exceptions: "Thereupon the defendant, to sustain the issue on his part, offered the following evidence, to wit:

Timothy Splahn sworn and examined. I was plaintiff in the old suit of Splahn v. Splahn, in the common pleas court; I am a cousin to the defendant, Mike Splahn; I don't know when the judgment in the old suit was rendered; I think it was in 1866; the mortgage sued on in that case was a voluntary one-was a sham; it was made to secure only a few dollars; no money was passed between us.

"Question by defendant. 1. How much, if anything, was owing to you by Michael Splahn on the decree and judgment at the time the order of sale was issued?

"To this question the plaintiff objected, and the court sustained the objection, and refused to allow the witness to answer the question, to which ruling and action of the court the defendant at the time excepted.

"Question by defendant. 2. Tell the court and jury whether anything was due you on the said judgment from Michael Splahn at the time the decree was issued, and if so how much.

"To this question the plaintiff objected, and the court sustained the objection and refused to allow the witness to answer the question, to which ruling and action of the court the defendant at the time excepted, because it was a question of law, but permitted the defendant to prove, if he could, that said decree had all been paid, or any part of it.