Doe on demise of Pope v. Bradley, 10 N.C. 16, 3 Hawks 16 (1824)

June 1824 · Supreme Court of North Carolina

10 N.C. 16, 3 Hawks 16

Doe on demise of Pope, v. Bradley.

"j- From Pitt.

A Sheriff advertised property to be sold oil a certain day, ánd, after-wards, recollecting that, it was the general election day, made known that he would open the sale for form, and postpone it to the succeeding day; he did so, and in a contest between a bidder of the first, and a bidder of the second day, it was held that the Sheriff might well postpone the sale, as by the 'act of 1820, he is permitted to do so, and the reasons for a postponement must, to a certain' extent, be judged of by the Sheriff.

Ejectment for a lot of ground, tried before Paxton, Judge.

The lessor of the Plaintiff and the Defendant both claimed title to the land in dispute, under deeds from the Sheriff of the County of Edgecomb, on the same execution. The Defendant’s deed bore date July 27-th, 1821, and that of Plaintiff’s lessor, on thé 27th of November, 1821.

The lot in question, with one other tract of land, was levied upon by the Sheriff, as the property of Willie Stanton, and duly advertised to be sold on the last, Thursday of July. The Sheriff having, afterwards, called to mind, that the day appointed for the sale, was the general election day for the County, caused it to be generally made known, that the sale would not actually be made on that day, though it would be opened for form and postponed to the succeeding day. Accordingly, on the day, the Sheriff’s deputy announced that he would set up the property, open the bidding', ami adjourn the sale to the next day; the tract of land, not the lot in dispute, was set up, and after some bidding, the lessor of the Plaintiff, bid g 800, and the Deputy Sheriff then adjourned the sale to the succeeding day. This took place before 2 o’clock in the afternoon.

On the next day, the Sheriff offered to put up the tract at the. last bid which had been made on the day before, viz. $ 800, when the lessor of the Plaintiff objected, al-loging that he was the purchaser for tlie price of S 800, which sum he then offered to pay. The Sheriff set up the tract anew, and after that was disposed of at $ 500, offered the lot in question, when it was bid off by an agent of the Defendant, and the Sheriff immediately executed a deed. The Defendant and his agent both knew the circumstances of the bidding, on the preceding day, and tine postponement of the sale.

The Court instructed the Jury, that if there was no fraud in the transaction, the deed transferred the title, notwithstanding the provisions of the act of 1820, entitled, an act directing the manner in which property levied on by Sheriffs and Constables shall be sold.^* Verdict for the Defendant, new trial refused, judgment and appeal.

* This act provides that sales shall be made at the Court-House'on the last Thursday in each month, that forty days notice shall he given of sale of lands, and twenty days of sale of slaves, that the sale shall be made between the hours often and four.

Taylor, Chief-Justice.

The act of 1820, is directory to Sheriffs, as to the mode of conducting sales, and authorises them to continue the sale from day to day, if the whole of the property taken in execution cannot be sold the same day. But as it does not specify the reasons which may prevent a sale of the property, they must necessarily be judged of by the Sheriff, to whom a discretion, to a certain extent, is thus given. The reason for adjourning the sale, is within the spirit of the act, and would, in general, operate for the benefit of the parties. But on no principle can it annul the sale, for the Sheriff is made liable to a penalty for disobeying the act; though, in,.this instance, he cannot be said to have disobeyed it, for the occurrence of the election rendered it highly improper to proceed with the sale, and may, according to the act, be understood as preventing it. I approve of the ground taken by the Superior Court, and think its judgment ought .to be affirmed.

Hall, Judge.

The act of 1820, New Rev. ch. 1066, gave the Sheriff the power of continuing the sale from day to day, provided the sale could not be completed on Thursday; a very good reason is given why, in the present case, the sale was not completed on that day ; on the next day the property in question was offered for sale and purchased by the Defendant, and it is objected that the sale was not good.. The objection cannot be sustained •, the reason for continuing the sale till Friday, might be, and probably was, as good as if it had been .continued over for want of time to make sale of the property on Thursday. There must be judgment for the Defendant.

Henderson, Judge, concurred.