McEachin v. McFarland, 12 N.C. 444, 1 Dev. 444 (1828)

June 1828 · Supreme Court of North Carolina

12 N.C. 444, 1 Dev. 444

Archibald McEachin et al. v. William C. McFarland et al.

From Richmond,

A levy upon land under a Justice’s judgment, mad? more than three months after the date of the execution, being void, &sd. fa. against heirs founded on it was dismissed.

The Plaintiffs obtained a judgment against the executors of Duncan McFarland, before a Magistrate, who found the plea of fully administered, in favor of the Defendants. An execution on this judgment issued on the 6th of February, 1826, which was renewed on the 8th of July following. On the 15th of January, 1827, the renewed execution was levied upon the land which had descended to the heirs of Duncan McFarland, (the present Defendants,) who were brought into Court by writ of scire facias, under the act of 1791, fRev. ch. 352. J On the last circuit, his honor Judge Norwood dismissed the sci.fa. on account of the irregularity in the levy, and the Plaintiffs appealed.

No Counsel appeared for either party in this Court.

Hard, Judge.

The act of 1803, (Rev. ch. 627,J directs that all executions issued by a Justice of the Peace, shall be made returnable within three months, and that in case it is not discharged, another execution shall be issued for what appears to be due. The execution in this case was renewed on the 8th of July, 1826,* but it was not only not returned in three months, but it was executed after their expiration, viz. on the 15th day of January, 1827, more than six months after it had issued. I therefore think the judgment of the Superior Court should be affirmed.

Per Curiam, — Judgment affirmed'.