Den ex dem. Ingram v. Kirby, 19 N.C. 21, 2 Dev. & Bat. 21 (1836)

Dec. 1836 · Supreme Court of North Carolina

19 N.C. 21, 2 Dev. & Bat. 21

DEN ex dem. JEREMIAH INGRAM v. LEMUEL D. KIRBY, et al.

In ejectment for land purchased at a sheriff's sale, under an order of sale made by the County Court upon the return of a constable that he had levied on the lands of the defendant, the purchaser must show the justice’s judgment returned to court according to the directions of the act of 1794, (Rea. ch. 414, s. 19); and an entry on the trial docket of the court at the foot of the case of an “ order of sale,” is not such a judgment as the law requires to be shown.

Where a justice’s execution has been levied upon lands and returned to the County Court, the production of the trial docket of the court containing a mere note or memorandum of the case, with an “ order of sale,” entered at ■ the foot of it, together with the testimony of the clerk that after a diligent search he had been unable to find the original papers in the suit, is not sufficient evidence of the loss of the justice’s judgment, if evidence of such loss'be admissible.

The cases of Bryan v. Brown, 2 Murph. 343, and Hamilton v. Adams, lb. 161, approved.

Ejectment, tried at Anson on the last Circuit, before his Honor Judge Saunders.

The lessor of the plaintiff claimed the land in dispute as a purchaser at a sheriff’s sale, and offered in evidence, first, ,the trial docket of Anson County Court, on which was found the following entry :

“January Term, 1832.

KirbyHenry Judgment, March 1831, $35 00 Robert Hildreath and A. Interest 50 Jilson B. Douglas, V Cost j 20 security,

“Levied on 150 acres of land lying on the waters of Pedee, adjoining George Ingram and others, as defendant’s property.

Jas. Horn, Const.

Order of sale.”

He then introduced the clerk of Anson County Court, who deposed that he had made diligent search in his office, but had been unable to find any of the original papers relating to the suit of Henry v. Hildreath and Douglas. This evidence was objected to by the defendant’s counsel, but was received by the court. The plaintiff then offered a writ of venditioni exponas, tested of October Term, 1831, and returnable to January Term, 1832, on'which was an endorsement by the sheriff that the land was sold on the 10th of January, 1832. He further offered a deed from the sheriff covering the land in dispute, dated the 4th July, 1832. The defendant relied upon a deed of bargain and sale for the same land, executed by the said Rober Hildreath, and dated the 9th day of April, 1832. The jury, under the charge of his Honor, returned a verdict for the plaintiff, and the defendants appealed.

No counsel appeared for the defendants in this court.

Mendenhall, for the lessor of the plaintiff.

Danibu, Judge.

The act of assembly of 1794, (Rev. ch. 414, s. 19,) requires, that when a constable has levied on land, the justice shall return such execution with all other papers on which the judgment was given to the next court to be held for said county; which land, shall by order of said court be sold by the sheriff of the said county, or so much thereof as may be sufficient to satisfy such judgment, in the same manner as real property is sold by writs of fieri facias or venditioni exponas issuing from such courts; and the clerk of the court where such papers, are returned shall, in a well bound book kept for that purpose, record the whole of the papers and ings had before the justice, and he shall be allowed the same fee as for entering a judgment in any other suit. It is a well settled rule, in this state, that in ejectment, the purchaser at a sheriff’s sale is bound to show the judgment on which the execution issued; Doe ex dem. Bryan v. Brown, 2 Murph. 343. And where he purchases under an order of sale, made by the County Court upon the return of a constable, that he “ had levied upon the land of the defendant, there being no personal property to be found,” he must show the judgment recovered before the justice of the peace. Den ex dem. Hamilton v. Adams, 2 Murph. 161. The plaintiff in this case did not show any judgment of a justice which had been returned to the County Court and recorded; neither did he show if such evidence be admissible, that such judgment had subsequently been lost. The memoranda or notes on the docket, and what the clerk swore, did not prove that fact. We think, that the plaintiff was bound to show, that a justice’s judgment had been rendered against Hildreath; and that after the levy on the land by the constable, it had been returned into the County Court of Anson, to justify the “ order of sale” made by the said court. The entry on the trial docket of the “ order of sale,” is not the judgment which the law requires to be shown. When a judgment is regularly entered, the award of execution is always entered on the roll at the foot of the judgment, but this award or fiat for execution to go, composes no part of the judgment. We therefore think the judge erred in permitting the venditioni exponas to be given in evidence for the plaintiff without proof of any justice’s judgment ever having been rendered against Hildreath and returned to Court, to authorize the court to make an order of sale, or award such an execution.

There must be a new trial.

Per Curiam. Judgment reversed.