The entire facts are set forth in the foregoing statement of the case, and thereon arises substantially but one question to wit: Is the deed made by a sheriff, under a foreclosure proceeding, by notice and *228sale pursuant to' the provisions of chapter 118 of the code of 1851, prima facie evidence of the regularity of such proceedings, or of the truth of the recitals therein ?

We have no hesitation whatever in holding that it is not. We ground our opinion upon the well-settled rule, that, aside from the statute, a sheriff's deed for real estate, sold under execution upon a judgment at law, is not prima facie evidence of the regularity of the prior proceedings, nor even of the existence of the judgment or the execution. Upon principle, the foreclosure of a mortgage by notice and sale, it being purely a highly summary proceeding, cannot stand upon any higher or better foundation than sales and conveyances under execution. And when we remember that the same legislature which enacted the statute for the summary proceeding of foreclosure by notice and sale, also enacted the statute regulating sales under execution by sheriffs, and under orders of sale by guardians, executors, etc., and that as to these latter it expressly enacted that the deeds of such should be prima facie evidence, etc., and failed to enact the same law in relation to deeds under notice and sale proceedings for foreclosure, the argument becomes quite conclusive.

But, further than this, the legislature did enact, in relation to foreclosure by notice and sale, that evidence of the service and publication of the notice, and of the sale made in accordance therewith, together with any postponement or other material matter, may. be perpetuated by proper affidavits thereof. Such affidavits shall be attached to the bill of sale of personal property, or recorded with the deed of real property, and shall then be receivable in evidence to prove the facts they state. §§ 2079, 2080, Code of 1851. If the deed was to be evidence of the facts, why provide for other evi*229dence ? Our conclusion seems inevitable, alike upon principle, analogy, and tbe construction of the statute.

Of course, the statute of limitations could not, under the facts found, constitute any bar. The application for continuance was rightly overruled. It failed to show any diligence, as well as to show that any advantage would come to defendant by further delay.

Affirmed.