Taylor v. Snow.

be sold on execution issued on a regular and valid judgment, after the defendant's death, and even where an execution is previously issued during the life of the defendant, it is abated by his death, and property upon which the judgment operates as a lien cannot thereafter be sold by the sheriff by authority of such execution, it must follow, as appellees maintain, that there is manifestly as fatal a defect in appellant's title to the land for which he sues, as if the judgment from which the execution comes should be held to be an absolute nullity, and incapable, as the jury were told, of serving as the foundation for a title. For, say appellees, if it is conceded that judgments of courts of record, upon principles of public policy, and on account of the sanctity and respect in which their proceedings are held, cannot be controverted or impeached in a collateral proceeding, they insist that these principles are inapplicable, and cannot be invoked in support of an execution, or other process, to enforce or carry into effect such judgment, or to uphold and maintain, as valid and binding, acts, otherwise invalid, done under and in obedience to their commands.

There is no question that, in many cases, it has been held, if the defendant dies after judgment, and before execution has issued, that land of the decedent cannot be sold under an execution on such judgment until it is revived against the heirs. And even where the defendant dies after the execution has issued, and though it may have been levied, such execution, as is held by many courts, will nevertheless abate, and the judgment must be revived before it can be enforced by process. And with us, it has been long since decided, that by the provisions of our probate laws, no execution can ordinarily issue against the administrator, or personal representative of a party against whom a judgment for money has been rendered. And though an execution is in the hands of the sheriff, and has been levied, if the defendant dies, the authority of the sheriff to sell under the execution is immediately at an end. Conkrite v. Hart, 10 Tex. 140; Chandler v. Burdett, 20 id. 42; McMiller v. Butler, id. 402.

But we are not prepared to say that either of these cases to which we have referred sanctions so broad an application of the principle insisted upon by appellees, as claimed by them in support of this judgment. Unquestionably, where a defendant dies before the satisfaction of the judgment, our statutes require that its payment must be enforced through the probate court, and in VOL. XXVI. - 40

Taylor v. Snow.

the manner prescribed for the settlement of the estates of deceased persons, and not by execution. And if execution should issue against the defendant after his death, or his property be sold by the sheriff on an execution previously issued, it would be irregular and invalid. And such sale might, with propriety, be said to be void, because it has an inherent vice, for which it may be avoided, and held for naught, at least for the purposes of the adminis tration, and at the instance of those interested in the proper application of the property of the decedent to the discharge of his just liabilities. It may also be said that such sale is void, because it will be so declared when the irregularity or error which renders it so is shown by the proper parties, and in the proper time and manner (Pearsoll v. Chapin, 44 Penn. St. 9), just as a judgment, having the like vice, will be held void when its error is pointed out in the proper manner for invoking the action of the court upon it. But we cannot agree that a sale of property under an execution, apparently valid and regular upon its face, should be held, under all circumstances and as to all persons, absolutely instead of relatively void, and that it shall be treated as in every particular totally null and without effect, because the party against whom it issued died previous to the day of sale. Certainly, neither of the cases to which we have been referred, unless it is that of Conkrite v. Hart, give countenance to such conclusion.

The case of Chandler v. Burdett merely decides that a venditioni exponas will not issue against the legal representative of the defendant to sell land upon which an execution had been levied previous to the defendant's death. In McMiller v. Butler, the vice in the execution and sale was shown, and the sale set aside upon terms. The case of Conkrite v. Hart is too meagerly stated by the reporter to justify any very positive conclusion as to the sense in which "the ambiguous word void" was used, or intended to be understood by the court. Although the opinion is certainly expressed in strong and emphatic language, we can scarcely think that the court intended to lay down a rule broad enough to cover the present case. But if so, we think we shall act more in consonance with right and justice, and more in conformity to the spirit of subsequent decisions, in holding that, while a sale of property under execution after the death of the defendant is relatively void, and that the title acquired by the purchaser at such sale cannot be maintained against the administrator, or parties acquiring their title under

Eborn v. Zimpelman.

and through the administration, and that such sale may be avoided by any party having an interest in the property, if he should seek to do so in the proper time and manner this cannot be done where there has not been, and cannot be, any administration upon the estate in a collateral proceeding in the manner and upon the facts alleged, and, as here sought, upon grounds going to the validity of the judgment itself, rather than the execution. It is not pretended that any thing has occurred subsequent to the judgment to prevent the issuance of the execution, and its satisfaction by the seizure and sale of property as therein ordered. The fact or matter relied upon to show that the purchaser under the execution got no title to the property sold by the sheriff, occurred previous to the rendering of the judgment, which, in a collateral proceeding, as we have seen, cannot be impeached or annulled. But this, in effect, would seem to be done, if it is held that in a like character of proceeding the execution issued in obedience to and in conformity with the very terms of the judgment, will be treated as absolutely null and void, on proof of the occurrence of such fact anterior to the date of the judgment, and which, if it be heard and considered, would annul the judgment. The judgment is reversed and the cause remanded.

Reversed and remanded.

EBORN V. ZIMPELMAN.

(47 Tex. 503.)

Evidence - proof of handwriting by photographic copies.

On a question of the handwriting of A, in Texas, the court admitted depositions of witnesses in another State, that they knew the handwriting of B, but not that of A. Attached to the interrogatories were photographic copies of the writings in question, purporting to have been executed by A, and the witnesses in those depositions testified to their belief that if the copies were exact, the original writings were in the hand of B. Held, that the depositions were erroneously received; (1) because they were secondary evidence; (2) that the mere fact that the original writings were on file in a Texas court, and thus could not be produced to the witnesses in the other State, did not authorize their admissions; (3) because the witnesses did not know the handwriting of A. (See note, p. 319.)

A

Eborn v. Zimpelman.

CTION on promissory notes alleged to have been made by the defendants' intestate, Thomas Eborn, in 1846, to the order of William Eborn. Plea, non est factum. Verdict for the defendant and plaintiff appealed. The opinion states the other facts.

N. G. Shelley and Peeler & Fisher, for appellant.

Terrell & Walker, for appellee, cited Re Stephens, 8 Moak, 482; Leathers v. The Salvor Wrecking Co., 2 Wood, 682; Luco v. U. S 23 How. 515; Case of Udderzook, 76 Penn. St. 340. With them was Charles J. Evans.

GOULD, J. [After stating the case, and disposing of two other points.]

3. In the course of the trial the defendant introduced the depositions of sundry witnesses in the State of North Carolina, who testified that they knew the handwriting of William Eborn, but not that of Thomas Eborn. Attached to the interrogatories were photographic copies of the instruments charged to have been executed by Thomas Eborn, 1846, and these witnesses testified to their belief, that if the copies were exact, those instruments were in the handwriting of William Eborn. This evidence was objected to, but was admitted and the question of its admissibility is fairly before us.

It was given in evidence by the artist who took the copies that, except as to color and size, they were exact reproductions of the originals, basing that statement, he says, upon the representations of scientific men as to the instruments with which they are taken, and his own observations.

is

In support of the admissibility of such evidence, it is contended that the court will take judicial notice that the photographic process secures a mathematically exact reproduction of the original, and that, therefore, evidence as to the handwriting of such a copy as satisfactory as though it referred to the original. But certainly the exactness of the photographic copy of a writing depends on the instrument and materials used. Like a letter-press copy, it is a copy, and may be more or less imperfect. However superior to other copies, it is certainly a question of fact whether any particu lar photographic copy is exact or not, for "photographers do not always produce exact fac similes." "As a general rule, in proportion as the media of evidence are multiplied, the chances of

Eborn v. Zimpelman.

error or mistake are increased." Tome v. Parkersburgh Branch R. R., 39 Md. 93; 17 Am. Rep. 540. Evidence as to the genuineness. of a copy, however made, is, in its nature, less satisfactory than evidence as to the original. So it has been held that letter-press copies were not admissible as competent standards of comparison. Commonwealth v. Eastman, 1 Cush. 217; Commonwealth v. Jeffries, 7 Allen, 561. Where, however, the question is as to the genuineness of a letter which cannot, after due effort, be produced, the letter-press copy may retain enough of its original character to be identified by a witness, and if so, the evidence is admissible. as secondary evidence. Commonwealth v. Jeffries, supra. So, in Leathers v. Salvor Wrecking Co., 2 Woods, 682, where the originals were archives of the government and could not be produced, Judgo BRADLEY, speaking of photographic copies which were admitted, says: "No better evidence of their character and authenticity can be had than such a reproduction of them by the operation of natural agencies, and an authentication of their genuineness, in the usual way, by proof of handwriting."

The evidence was spoken of as other secondary evidence-admissible because no better could be had. Luco et al. v. U. S., 23 How., is another case (referred to by counsel). It would seem that here, also, the originals were public archives, which could not be produced, and this, perhaps, was the reason that photographic copies appear to have been used without objection. However that may be, the question of the admissibility of such evidence does not appear to have been either made, discussed or decided.

Marcy v. Barnes, 16 Gray, 163, is a case where magnified copies of genuine signatures of the defendant, and of the disputed signature, were submitted to the inspection of the jury. This, the court say, "is not dissimilar to the examination with a magnifying glass," and is an additional and useful means of making comparisons between admitted signatures and one which is alleged to be only an imitation. So far from treating photographic copies as necessarily accurate, the court, in that case, expressly say, that their accuracy is a question of fact "to be considered and determined by the jury." Here the enlarged photographic copies were used, it would seem, not as substitutes, but in addition to the originals. Certainly, a photographic likeness of an individual may be used for the purpose of identification, where no better evidence is to be had (see Udderzook v. Commonwealth, 76 Penn. St. 352), but it would