Page:Borden v. State ex rel. Robinson.pdf/53

Rh Presumptions are deductions from known facts, and are strong or slight according to the number and conclusiveness of the facts from which they are drawn. According to the English practice there was strong ground in favor of the doctrine. There the writ is no part of the record, and the declaration is not filed until after the writ has been returned, as there is nothing on the writ to repel the presumption, and as it is no part of the record, there is nothing to weaken the presumption upon the record itself. But in this as in nearly all of the southern and western States, the declaration is filed before the writ issues, and the writ is held to be part of the record. There is consequently less ground for presumptions than under the English practice, because the fact that the declaration is filed here furnishes no evidence whatever upon which a presumption could rest; and so far as the writ is concerned it is before the court and affords record evidence as to what was done in obedience to it.

It is true that the restricting this rule may impose an increased vigilance upon purchasers at judicial sales, to enable them to avoid the consequences incident to purchasers under illegal proceedings; but then vigilance and investigation into facts furnish the only repose worth possessing. It is also true that one class of the community may repose under the soothing influence of this judicial opiate, but it is at the sacrifice of the repose of all others who hold property. If it is a serious desecration of the right of property under judicial sales to overturn titles thus acquired, is it not a still more serious desecration of the right of property to take it from the legal owner without notice? Can the title to property be secure under a rule by which it may be seized and sold without the consent or knowledge of the owner? Can the purchaser find repose when he reflects that the same process of seizure without notice may be applied to him? I think not. On the other hand it seems to me that a full hearing and fair opportunity to defend would be better calculated to inspire confidence in the laws and give repose to the community. But be this as it may, it only remains for me to express what I understand the law to be and leave its