ON REHEARING.
RICE, J.When the original opinion was written in this ease, the decision in Idaho Placer Min. Co. v. Green, 14 Ida. 249, 93 Pac. 954, escaped the court’s attention. In that case it was held that under a general denial the defendant in an action in claim and delivery might introduce any evidence which tended to dispute or rebut the plaintiff’s claim of right to possession; also that a specific denial of all the allegations of the complaint had the same effect, so far as the issues were concerned, as a general denial. We have no intention of overruling that case, and therefore modify our opinion and hold that the plaintiff in this action may justify his possession of the property under a valid writ. (See Cornwall v. Mix, 3 Idaho, 687, 34 Pac. 893, 34 Cyc. 1496.)
*592We are of the-opinion that the evidence sustains the finding of the trial court that the conveyance to appellant’s intestate in this action was for the purpose of security, and that therefore the same is a mortgage under the provisions of C. S., sec. 6358-, The instrument of conveyance, not containing the affidavit required by C. S., sec. 6375, and not being recorded, the mortgage was void as to creditors and bona fide purchasers, in the absence of possession by the mortgagee.
The question remaining, therefore, is whether the evidence is sufficient to sustain the finding of justification on the part of the sheriff.
The sheriff testified that he held the property under an execution issued out o'f the probate court in an action against the Boise Natural Hot Water Heating Company. Appellant’s intestate was not a party to that action. As against appellant, in order for the sheriff to justify his possession by virtue of the execution levied upon the property of the company, it is necessary that he show the existence of a valid unpaid judgment to support the writ. (Old Settlers’ Inv. Co. v. White, 158 Cal. 236, 110 Pac. 922; Bickerstaff v. Doub, 19 Cal. 109, 79 Am. Dec. 204; Gidday v. Witherspoon, 35 Mich. 368; Wyatt v. Freeman, 4 Colo. 14.) In this case respondent did not introduce the record of the judgment upon which he claims execution issued. The attorney for, the judgment creditor testified that judgment was obtained by default. The proper proof of the existence of adjudgment is the record, or a certified copy thereof. We express no opinion as to whether the testimony of the attorney was competent as proof of the existence of the judgment, but if it might be so considered it would be insufficient in this case, since probate courts,in cases of the kind under "consideration are of limited and inferior jurisdiction (Dewey v. Schreiber Implement Co., 12 Ida. 280, 85 Pac. 921), and proof of jurisdiction is necessary to establish a judgment in such courts. (15 R. C. L., p. 881, sec. 359.)
Bespondent contends, however, that appellant is estopped to deny the validity of the judgment by reason of an affidavit *593filed with the complaint in the action, and by reason of a stipulation as to certain facts entered into during the progress of the trial. The affidavit referred to was not submitted in evidence. Assuming that the court might take judicial notice of its contents (Hollenbach v. Schnabel, 101 Cal. 312, 40 Am. St. 57, 35 Pac. 872), still we do not believe this affidavit estops appellant from questioning the validity of the judgment. The affidavit states that upon affiant’s knowledge, information and belief the property was held by the respondent by reason of a certain attachment issued out of the probate court of Ada county in a certain action, and that in the action a writ of attachment was duly issued and placed in the hands of respondent, who duly levied upon the property. But upon the trial of the ease, the evidence of the sheriff was to the effect that he held the property under a wrif of execution. Since a writ of attachment may be duly issued at any time after issuance of summons,- and before the service of process upon a defendant, appellant’s statement that the writ of attachment was duly issued is not an admission that a valid judgment was thereafter entered in the action.
The stipulation of facts is as follows:
“Mr. Givens: Now, will you stipulate, Mr. Cavaney, into the records, that all the proceedings up to the execution and the execution placed in the hands' of the sheriff, for execution, under which levy was made, were regular.
“Mr. Cavaney: If they were regular — yes, I will admit they are regular if you will state those judgments were regular down in that court, I would not like to stipulate on that, because I have questioned those judgments that were taken down in the probate court. So far as Mr. Roberts is concerned, I am willing to stipulate that anything he did was regular.
“Mr. Givens: In so far as the property that came into his hands is concerned, it was regular on its face.
“Mr. Cavaney: Yes, I will admit all that.”
The above stipulation does not amount to a stipulation that a valid judgment was entered in the case. It stipulates noth*594ing more than that the execution was regular on its face, and that the sheriff proceeded properly thereunder. This is not sufficient.
“While an execution, fair on its face, is sufficient to protect an officer against personal responsibility in serving it, yet when he claims property under it he must show that it was warranted by a judgment.” (Cobbey on Replevin, sec. 806; Old Settlers’ Inv. Co. v. White, supra; Gidday v. Witherspoon, supra.)
The evidence was insufficient to establish justification on the part of the respondent, and the judgment must be reversed with costs to appellant.
Morgan, C. J., concurs. Budge, J., sat at the argument on rehearing, but took no part in the opinion thereon.