Selby v. Dixon, 11 N.C. 424, 4 Hawks 424 (1826)

June 1826 · Supreme Court of North Carolina

11 N.C. 424, 4 Hawks 424

Selby adm’r. v. Dixon et al.

From Hyde.

A was indebted to B and C, B obtained a judgment against A, and before execution issued, a negro, the'only property of A, was sold by a Constable under an execution, when C. purchased him for $396, whereof he paid the Constable $18, the amount of his execution, and by consent of A, retained the balance of his bid to satisfy the debt which A owed him as far as it was sufficient for that purpose. A Bill filed by B against A, C, and the Constable, was dismissed. B had no lien on the negro either in Law or Equity.

The Complainant, who was the administrator of one Tooley, stated, that as adm’r he had recovered a judgment against Thomas Smith and his wife Jinn, for 25300 at May Term, 1822, of Hyde County Court j that he issued an execution thereon, which was returned “ nothing to be found that before the execution issued, the Defendant Dixon, who was a Constable, levied an execution on a negro man the property of Smith, to satisfy an execution of §8, and sold the negro at public sale, when the Defendant Havens, purchased her for g39G : that Havens paid the amount of the execution S8, a«íl no more, and gave Dixon a bond to indemnify him, in case he should sustain damage for not exacting of Havens the whole amount, of his bid ; that Havens took the negro into his possession, and still owed for him. §388, or thereabouts; that Smith and wife owned no other property, and that Complainant’s debt would be lost unless the negro, or the balance due from Havens could be made liable. The bill further stated, that Dixon was about to collect the balance from Havens. and pay it over to Smith and wife, and charged Dixon, Smith and Havens with a conspiracy to defraud Complainant.

The Answers stated in substance (and the proofs sustained the answers) that Havens purchased fairly at execution sale; that ho paid the amount of the execution which Dixon had, and that by agreement with Smith, who was largely indebted to him, he retained the residue of his bid above Dixon’s execution, in part satisfaction of his claims against Smith.

Upon the hearing below, Judge Norwood dismissed the Bill, whereupon Complainant appealed.

Haul, Judge. —

I concur in opinion with the Judge below that Ibis bill should be dismissed; .the Complainant has no lien on the negro or his value, which is in the possession of theDefendant Havens, either in Law or Equity. Havens became the purchaser when the negro was sold, for valuable consideration ; after paying off the debt for which he was sold, he retained the balance of the money bid for the negro in his own hands, for a debt which Smith owed him, and this was done by the consent of Smith, he might have purchased of Smith, bona fide, without the intervention of a public sale, because, at that time there was no lien on the slave in favor of the Complainant.

I think Dixon should be allowed his costs, and that the other Defendants jointly, should be allowed costs.

And of this opinion were the other Judges.

By the Court,

JpdgmeNt Affirmed.