—The Sheriff’s sale, under the circumstances of this case, did bind the land; but they also deem it regular, that the plaintiff in ejectment, who claims under a Sheriff’s sale, shall establish a title in him against whom the execution issued. A new trial was therefore awarded.
Worke v. Hunter, 1 N.C. 527, 1 Cam. & Nor. 527 (1804)
Dec. 1804
·
North Carolina Court of Conference
1 N.C. 527, 1 Cam. & Nor. 527
Alexander Worke vs. Thomas Hunter.
Ejectment. On the trial the case appeared to be this. A bill of indictment had been found against one George Harkness for perjury; he appeared, plead not guilty, and was acquitted, at term of Salisbury Superior Court. No express judgment was given by the Court, as to the costs of the prosecution. The clerk, however, under the general understanding and construction of the act passed in the year 1779, ch. 4, sec. 19, then entertained, issued an execution against the goods and chattels, lands and tenements of the defendant Harkness, for the amount of the allowances to the witnesses on the part of the State for their attendance. The Sheriff levied the execution on the land in question, Harkness being then in possession of it, and claiming it as his property, and sold the same to Worke, the plaintiff. Harkness afterwards sold the land to Hunter, the defendant, who had full notice of the sale by the Sheriff, and purchase by *528Worke. The execution was not returned, the Sheriff having died before the return-day; nor was there any entry or memorandum of the issuing of the execution of record. The only evidence of that fact was the testimony of the clerk. The only evidence of the levying of the execution was, acknowledgments of Harkness, and of Hunter the defendant. The only evidence offered by the plaintiff, of title in Harkness at the time the execution issued, was his acknowledgment, possession and claim. On this ground, the defendant’s counsel moved for a nonsuit.
Two questions were submitted to this Court:
1. Whether a sale, under these circumstances, can bind the land in dispute?
2. Whether the Court did right, in submitting the case to the jury, or ought to have nonsuited the plaintiff.