(dissenting.) I do not concur in the decision of this case. I do not disagree with what is said as to the effect of an exhibit attached to and made a part of a pleading, if by what is said is only meant that such exhibit cannot take the place of, or dispense with, the allegations in connection with the exhibit necessary to show a cause of action. In presenting a written instrument, either as an exhibit, or in the body of the complaint (its location is immaterial), as the basis of a cause of action, it must still be alleged that the party sought to be charged executed and then violated it. But a complaint which states that A. B. made and delivered to C. D. an instrument, a copy of which is hereto attached and made a part hereof, as “Exhibit A,’’ (such exhibit being a promissory note, and duly attached,) states a cause of action as fully as though all the details of date, amount, time, place of payment, and rate of interest were specifically set out in the body of the complaint and alleged as distinct facts; and yet, tested by the rule of the opinion that “a complaint which does not state a cause of action by its averments, without reference to exhibits, is bad upon demurrer, ’ ’ such a complaint would be worthless, and yet I think the court would hesitate to so hold. I do not think the cases referred to in the opinion, aside from the Missouri cases, support the broad rule therein stated. In Fairbanks v. Bloomfield, 2 Duer. 353, the court said: “The safest course under the code, where the action is founded on an instrument in writing, is to annex a copy, and refer to it as a part of the complaint. ” In the recent case of Taylor v. Mac-Lea (City Ct. N. Y.) 11 N. Y. Supp. 640, which was a demurrer to a complaint, upon the ground that it did not state facts constituting a cause of action, — the augument being that the contents of a lease, which was the basis of the action, should have been set out in the complaint according to their legal ef*450feet, instead of attaching a copy as an exhibit, — the court approved the action of the court below in overruling the demurrer quoting the above remark of Judge Duer in Fairbanks v. Bloomfield, and adding: “This, we hold, is good practice.” I think the rule, as taught and supported by the constant practice in this jurisdiction, is as stated in Caspary v. City of Portland (Or.) 24 Pac. Rep. 1036: “An exhibit may be made a part of a pleading by marking it so that it may be identified, and reciting in the pleading itself that such exhibit is so marked, and made a part of it.” A still more liberal rule as to the effect of an exhibit, attached to and made a part of a pleading, is adopted in Pefley v. Johnson, (Neb.) 46 N. W. Rep. 710, where it is held that, on demurrer, allegations of fact in an exhibit must be taken as true.
Another proposition in the opinion to which I cannot assent is as follows: “There is no allegation of the existence of any mortgage containing a power of sale, or otherwise. No facts are stated from which a court would be authorized to conclude that any mortgage had been given under which a sale could have been made by the defendant;” and the conclusion is ‘that “the absence from the complaint of any facts pertaining to the mortgage under which the sale was made renders the complaint fatally defective. ” It must be borne in mind that this was an action by the holder of a second mortgage against the sheriff himself, as such sheriff, for a surplus in his hands, as such sheriff, after paying off the first mortgage. The court knows that it is among the official duties of a sheriff to make sale of mortgaged premises under proceedings to foreclose by advertisement. Section 5415, Comp. Laws. It is distinctly alleged in the complaint that defendant is and was sheriff of Day county, and that he made the sale as such sheriff, in pursuance of a notice, a copy of which is set out as a part of the complaint. This fact is admitted by the demurrer. Was it necessary, then, as against the sheriff, to expressly and affirmatively allege that he was authorized to make such sale? In other words, is it incumbent upon a third person who seeks to recognize the official acts of this sheriff, and predicate a right thereon *451to first show, as against the sheriff, that such acts were not illegal and without authority? I think not. The conditions which would, under the statute, justify a sale, are (1) a mortgage with power of sale; (2) default in some condition of the mortgage; (3) no other action or proceeding to recover the mortgage debt; and (4) that the mortgage has been duly recorded. All these are conditions precedent to the right to foreclose, and the non-existance of any one of them is fatal to the sheriff’s authority to sell. As I understand the opinion of the court, it requires the complaint in this case to expressly allege that all these conditions have been met. I think that, as against the sheriff, who could only have lawfully made this sale in case these facts did exist, and who admits that he did make the sale, the presumption is, without express averment, that he acted as and when he had a right to act; and that, if he desires to defend against this claim on the ground that he acted illegally and without authority in making the sale, he must set up such facts in his answer. State v. Carter, 6 Ind. 37, was an action on the bond of a justice of the peace, to recover money alleged to have been collected by such justice on a claim apparently without the jurisdiction of such justice, but the court said: “As Dugan receipted for the note as justice of the peace it will be presumed against him and his surety that the had the power to-give Ms receipt as such, and that his act was legal until the contrary was shown.” I think the same rule should apply to the sheriff in this case. He admits that, as sheriff, he advertised and sold the premises in foreclosure of the first mortgage. In an action to compel him to account for the proceeds of the sale, while it would be better pleading to do so, I do not think it indispensable to specifically allege the existencé of all the conditions which must have preceded the sale, in order to make it legal. As against him, it would be presumed that he had the authority to sell, ‘ ‘and that his act was legal until the contrary is shown.”
The opinion of the court further says: “We are of the opinion, also, that there is no sufficient allegation in the complaint that defendant received $700 on the sale, or any other sum. ” *452The allegation of the complaint is definite that, in pursuance of the published notice, he, as such sheriff, offered for sale and sold and mortgaged premises to one Eliza Harris, “for the sum of $700, ” and delivered to her a certificate of sale, a copy of which is attached to and made a part of the complaint. He could legally have delivered such certificate to the purchaser only on payment of the purchase price, and the certificate which he was required to and did give to the purchaser distinctly stated, as the law prescribed that it should state, that ‘‘the whole price paid” was $700. He could neither have made the sale, nor delivered his certificate to the purchaser, without payment of the purchase price; and, having done both, as is alleged in the complaint, and admitted by the demuirer, the law presumes he received the money. It seems to me that, upon this point, the opinion reverses the usual presumption of the regularity of official proceedings, and teaches a doctrine opposed to all precedents. Such pleading is not to be commended, but I am unwilling to say that the facts stated in the complaint, with the legal presumptions which legitimately spring from them, do not constitute a cause of action against the sheriff. I think the judgment of the court below, overruling the demurrer to the complaint, should be affirmed.