Doe on dem. of Barden v. M'Kinne, 11 N.C. 279, 4 Hawks 279 (1826)

June 1826 · Supreme Court of North Carolina

11 N.C. 279, 4 Hawks 279

Doe on dem. of Barden v. M’Kinne.

From Wayne.

A levy on chattels vests in the Sheriff a special property, arid he may therefore sell after the return day of the writ, without a mn. ex. but a levy on land gives to him neither property, nor a right-of possession ; he has a naked authority to sell only; his sale transfers a right of property to the purchaser, and without the consent of the tenant the Sheriff cannot give actual possession.

Therefore, a sale by a Sheriff of real estate, after the return of aJl.fa. and without a new writ, is made without authority, and passes no title.

It seems, that a levy on real estate shewn only by an endorsement on the writ, made after the return day, is not valid.

Ejectment, tried before Ruffin Judge. — Plaintiff claimed title to the lands described in his declaration, as follows: — George Bradbury recovered a judgment in Wayne County Court, at May Term, 1820, against the Defendant William, M'ICinne, for S1096 33, with interest thereon and costs, on which judgment a fi.ja. issued, tested of May Term, 1820, returnable to the succeeding August Term ; this was delivered to the Sheriff on the 27th of May, 1820 ; upon which writ (it never having been returned, nor any other execution having been issued on said judgment) the land in dispute was sold to the lessor of the Plaintiff for one dollar, on the 31st of January, 1822, and the Sheriff executed a deed.

George Bradbury died in October, 1820, leaving a will of which Barden, the lessor of tiie Plaintiff, is executor; the will was proved at November Term, 1820, of Wayne County Court, and Barden then qualified as executor.

The Sheriff who sold under Bradbury’s execution, was called as a'witness for Plaintiff, and stated, that between May and August Terms, 1820, he levied the execution on the land in dispute, and also on M’Kinn&s negroes, that he did not then give any notice of said levy, nor endorse it on the execution, until after February, 1821 $ that in February, 1821, he sold the negroes levied, on, which did not fully satisfy the execution j .that the lessor of the Plaintiff, as the executor of said George Bradbury, soon afterwards (but when, the witness could notremem-¡jer) directed him to sell the land, and that in pursuance of such instructions, he advertised the land, and sold it on the 31st of January, 1822. He further said, that between February, 1821, and January, 1822, he had advertised and offered the land for sale, but did not sell for want of bidders.

Upon these facts, the Court instructed the Jury, that the sale of the land to the lessor of the Plaintiff on the 31st of January, 1822, upon the fi-fa. issued in May, 1820, and after the death of George Bradbury in October, 1820, was without lawful authority in the Sheriff, and therefore void, notwithstanding any levy thereon, made between May and August, 1820.

There was a verdict for the Defendants, new trial re-, fused, judgment and appeal.

jBadger, for the appellant.

Gaston, contra.

Tayxoe C. J. —

It is not necessary to the decision of this case, to express any opinion as to the levy upon the land; if it were, I should think that the sufficiency of the levy might well be doubted. How7, or in what manner it was performed by the Sheriff, whether by going to the land, and making a declaration of it, or by a silent and mental volition, does not appear$ but it does appear, that no notice was given of it, and that the endorsement Upon the execution was made after the writ was dead in law7. It would lead to endless abuses, if a Sheriff could make a levy, simply by an endorsement on the execution after its force was spent, and the lien arising from the teste had ceased to exist, or had yielded its priority to other executions of later teste, issued perhaps in consequence of its being returned without any endorsement, and there being no alias ordered. It would be hazard-ons to purchasers, and inconvenient in general, if a riff were allowed to continue the lien of the tesie by an expost facto indorsement of a levy, where the law permits it to be continued only by alias executions, or the revival of the judgment. For if the Sheriff retaining the writ in his own possession, may do so, after its force is spent, I can see no reason, why he might not be permitted by the Court to do it, upon an.execution returned without a levy, and at a period when the writ had no longer any force.

But admitting that the levy was unexceptionable, the sale to the Plaintiff was void for want of lawful authority in the Sheriff to sell. It was not merely a purchase under an irregular execution, for that would not impeach the Plaintiff’s title, but a purchase without.any execution. The general rule is, that all process must be served before the return day; and, as to chattels, if the levy be made in due time, the Sheriff may complete the same by sale after the return day. But the reason of this is that tiie seizure of chattels vests a special property in the Sheriff, who may take them into his own possession for the purposes of the execution. From the essential difference in the nature of the property, the operation of a fi.fa. issued against land must be different. It gives the Sheriff no authority to take possession of the land and turn the Defendant out. He cannot break open an outer door to execute a fi.fa. against chattels; how then, upon the same writ, can he give possession of a house ? A term for years may bo sold on a fi.fa. or a moiety of land delivered on an elegit, yet in neither case, can the Sheriff give possession. The purchaser and tire creditor must obtain possession by ejectment.. I apprehend that the Sheriff has no right to change the possession of land, nor does he acquire any tiling by the levy, but a right to enter for the purposes of the sale. The seisin, the possession and the right of possession, remain in the Defendant until the sale, whose dominion continues unimpaired, except as to the jus disponendi. This was one effect np t],e ]PVy, the other was to set apart this land to be converted into money according to the terms of the Jl. fa. But there must be some lawful authority in existence» ^ ^¡s convPrs¡on an{] sa{e | the Sheriff clearly had none, for his had expired more than twelve months before the sale; and any private individuals might, as le' gaily have sold the land, as the Sheriff did in this instance. Though the statute of George II. and our act of ■I777, have made lands liable, to be sold on a ./?. fa. equally with cbattels, yet there, are specific distinctions between the two sorts of property, to which even laws must be moulded, in order to he useful. Land cannot be removed, therefore the Sheriff incurs no risk after the levy, and possesses consequently no right, except that to enter for the purpose of a sale. After a sale he can give only the legal, not an actual possession, and every purchaser knows that he must resort to an ejectment, unless the Defendant is willing to surrender the possession. But with respect to chattels, he cannot oven sell them unless they .are present, and so completely within his control, as to enable him to deliver possession to the purchaser.

Though I am aware that the statute of 5 George II. c. 7, was professedly intended to enable British subjects in England to sell real estates on execution in the colonies, in order to recover debts due to them, yet this then, colony was no sooner emancipated, than she passed a law for the purpose of rendering land liable to debts upon the deficiency of personal asset's, Yet I cannot conceive that the' Parliament, much less our own Legislature, intended to give to Sheriff's the right to take possession of the land upon the levy, at his discretion, to turn the family out of possession, and to retain it himself until the sale. Nor has this been the construction of the statute in any of the colonies, for the Defendant is never disturbed, until the sale is consummated, and then only by his own consent, without suit Judging from the practice therefore pursued ip ibis state, for no light can be obtained from tlje British cases, I should think that the proper mode would be to issue a venditioni exponas upon the return of a ji. ja. levied upon land, and that in no other way, after a levy, can it be sold by the Sheriff. 1 think the judgment should bo affirmed.