Den ex dem. Testerman v. Poe, 19 N.C. 103, 2 Dev. & Bat. 103 (1836)

Dec. 1836 · Supreme Court of North Carolina

19 N.C. 103, 2 Dev. & Bat. 103

Den ex Dem. JESSE TESTERMAN, et Uxor, v. WILLIAM POE.

One who bids off land at a sheriff’s sale, may relinquish his bid to another either in writing or by parol, and the sheriff’s deed to the latter will be valid.

A sheriff’s deed relates to the time of the sale, and operates from that time against any subsequent transfer, whether made by the party or by the sheriff, under an execution against the party.

It seems that a purchaser under execution, who advances in part his own money, and in part that of the defendant in the execution, may acquire a sufficient title to stand as a security for his own money advanced, unless he intended to deceive the creditors, by claiming the purchase as an absolute one.

A bona fide purchaser of land at a sheriff’s sale, does not extinguish his title at law, by consenting that the same land may be levied upon and sold under another execution; although it might be a fraud upon the person in whose favour he gave such consent, which would sustain a personal action at law, or be the ground of relief in equity.

This was an action of ejectment for a tract of land, tried at Ashe, on the last Circuit, before his Honor Judge Dick.

The lessors of the plaintiff, and the defendant, both claimed under executions against one Morrice Baker. The lessors of the plaintiff in support of their title, produced a judgment regularly obtained at the August Term of the County Court of Ashe, 1828, and an execution issued thereon, under which the sheriff levied upon and sold the land in question, on the 10th November, 1828, to one Absalam Bowers, for the sum of ninety dollars, and the sheriff afterwards, on the 17th of April, 1831, executed a deed for the same land, by the parol directions of A. Bowers, to Mary Baker, who was one of the lessors of the plaintiff, and who afterwards intermarried with the other lessor. The defendant on his part then show'ed a judgment, in favour of one George Bowers, regularly obtained at August Term, 1830, of the County Court of Ashe, an execution issued thereon, a levy upon the same lands, and a sale made by the sheriff in November of the same year, when one Goss became the purchaser, to whom the sheriff executed a deed, on the 1st of April 1831, and from whom the defendant afterwards purchased. The defendant in support of his title, alleged that the purchase made by Absalom Bowers, at the sheriff’s sale in 1828, was fraudulent, and therefore void, and he introduced several witnesses for the purpose of showing that the said purchase was made wholly or in part with Morrice Baker’s money and for his benefit. The defendant also alleged, and endeavoured to prove, that Absalom Bowers had given permission to George Bowers to have his execution levied upon the lands in dispute, and to have them sold under the same.

It was contended for the defendant that the sheriff's deed of the 17th of April, 1831, did not convey a good title to Mary Baker. 1st. Because the sheriffhad no authority to convey the lands to her without a written authority from Absalom Bowers, the purchaser. 2dly. Because the legal title to the land remained in Morrice Baker, at the time of the sale to Goss, notwithstanding the sale to Bowers, and that Goss’s deed being the oldest, it conveyed the legal title in the land to him. 3rdly. That A. Bowers had purchased the land with the money of Morrice Baker, and for his benefit, and that, therefore, any title derived from or through the said A. Bowers, was fraudulent and void as to the creditors of the said Baker. 4thly. That A. Bowers, had given George Bowers (the plaintiff in the execution under which Goss purchased), permission to levy upon and sell the said tract of land.

His Honor charged the jury upon the first point, that a purchaser of land at an execution sale, might transfer his bid, and direct the sheriff to execute a deed to another, by parol without writing. On the second point he charged, that the deed executed to Mary Baker, by the sheriff, on the 17th April, 1831, had relation back to the time of the sale, and that her legal title accrued from that time. On the third point, the jury were instructed that if they believed from all the testimony taken together, that A. Bowers bought the land bona fide, with his own money, and for his own use, he acquired a good title. But if they believed he bought it with the money of Morrice Baker, either in whole or in part, and for the benefit of the said Baker or his family, it was a fraud on the creditors of Baker, and A. Bowers would acquire no title by such purchase. On the last point the jury were told, that if the testimony satisfied them, that A. Bowers had given express permission to G. Bowers, to levy his execution on the said land and sell it, it would be a waiver of A. Bowers’s title, and in that case, Goss acquired a good title. But if the permission spoken of was only conditional, and the condition had not been complied with by G. Bowers, and Goss had no notice of such conditional agreement, before he purchased, the title of A. Bowers would not be affected thereby. The jury found a verdict for the lessors of the plaintiff, and the defendant, after an ineffectual motion for a new trial, appealed.

No counsel appeared for either party in this court.

Ruffin, Chief Justice.

We think that there is no error in the instructions to the jury, of which the defendant has the least cause to complain.

That lands bid off at a sale upon execution by one person, may be conveyed by the sheriff to another, by the direction of the purchaser, was held in Smith v. Kelly, 3 Murph. 507; and in Shamburger v. Kennedy, 1 Dev. 1. Whether the direction be by writing or parol does not concern the defendant in the execution, or those claiming under him. It is a question between the sheriff and his bargainee on the one hand, and the first purchaser on the other. The deed authenticates officially the fact of sale, and that fact is equally true as against the former owner, whether it be to A. or to B., and followed by the deed, divests the tifie of the former owner.

The relation of the sheriff’s deed, so as to make it operate from the sale is also settled in a number of cases. Davidson v. Frew, 3 Dev. 1. Pickett v. Pickett, ibid, 6. Dobson v. Murphy, ante, vol. 1, page 586.

Upon the point of fraud the court gave the instructions prayed by the defendant; and indeed went beyond them, by saying, that if A. Bowers purchased with Baker’s money, in whole or in part, and for the benefit of Baker or his family, he would get no title as against Baker’s creditors. This was certainly going to every length the defendant could desire; and further than we suppose is correct, unless there was an intention to deceive creditors by claiming the purchase as an absolute one, when it really was only a security for that portion of the purchase money which Bowers advanced of his own. However, that point is out of the case at present; because, under the instructions, the jury must have found that Bowers purchased for himself bona fide and with his own money.

The evidence upon which the fourth point was raised, might have been quite material as a circumstance denoting the intent of the first purchase. But supposing A. Bowers to have purchased bona fide we cannot agree with his Honor, that even his unconditional consent to a second sale, by another creditor of Baker, extinguished his title. It does not appear, indeed, that this occurred prior to the directions of the sheriff to convey to the lessor of the plaintiff. But if it was, it could not operate to extinguish or transfer his title — being that to real estate ; although it might be a fraud on G. Bowers which might sustain a personal action at law, or found relief in another tribunal. But even this point has been found as to the fact, against the defendant. There is, therefore, no reason whatever, to disturb the verdict, and the judgment must be affirmed.

Per Curiam. Judgment affirmed.