Den ex dem. Jennings v. Stafford, 23 N.C. 404, 1 Ired. 404 (1841)

June 1841 · Supreme Court of North Carolina

23 N.C. 404, 1 Ired. 404

DEN ex dem. JENNINGS vs. STEPHEN STAFFORD.

Though a judgment be erroneous, or obtained irregularly, and against the course of the Court, yet, while it remains unreversed, it warrants , an execution conforming thereto, and upholds the title of a purchaser at execution sale.

.But if a judgment be rendered by a Court having no jurisdiction of the subject matter, or against a person who has not had notice to defend his right, or if it order what the Court has not the power to order, it is null and void, and an execution issuing thereon will not protect a purchaser.

Where a judgment is rendered upon a former judgment, and execution issues thereon, it is not necessary for a purchaser at a sale, under this execution, to produce the first judgmentin support of his title.

The case of Leary fux. v. Fletcher, 1 Iredell’s Rep. 259, cited and approved.

This was an action of ejectment, tried at the Spring Term, 1841, oí Pasquotank Superior Court, before his Honor Judge Nash, upon the following case, agreed : The land in dispute, was the property of the ancestor of the lessor of the plaintiff, and descended to him on the death of his ancestor. In September, 1829, a warrant was issued against the administrator of the ancestor, and returned before a magistrate, and judgment entered up as follows, viz: “ Judgment for twenty dollars and costs. L. C. Moore, J. P. The administrator pleads fully administered and no assets.” Upon this judgment, an execution issued, directed to the constable, against the goods and chattels of the lessor’s ancestor, in the hands of the administrator; and upon the execution, the constable made the following return, viz: “ The administrator denies that he has assets, and this execution is levied on the lands of James Jennings: bounded, &c.” The judgment and execution were then returned to the County Court, and entered upon the docket, and a scire facias, reciting said judgment as a judgment rendered by the County Court issued against the heirs, a guardian at litem was appointed by the Court, who accepted service of the scire facias, and judgment entered up in Court pursuant to sci. fa. by default. The only question iti the case was, whether the judgment on the sci. fa., without the finding of no assets beforethe proper tribunal, was sufficient to authorize an execution and sale of the land. His Honor was of opinion, that it was sufficient, and that the defendant, who was the purchaser under the execution issued upon the judgment, obtained the title; and the plaintiff, in submission to this opinion, suffered a nonsuit, and appealed to the Supreme Court.

Kinney for the plaintiff,

contended, that under the act of Assembly, Rev. iSt. c. 46, s. 25, &. c. 63, the want of assets in the administrator must be ascertained by a trial or admission in Court, before a sci. fa. against the heirs could issue, and as that had not been done in the present case, the Court had no jurisdiction as against the heirs, and the judgment and execution issued thereon, were null and void ; that consequently, no title passed to the purchaser under the execution. He cited heavy v. Fletcher, ante, 259.

A. Moore for the defendant.

A purchaser at execution sale, is only required to shew in support of his title, a judgment of a Court of competent jurisdiction, and an execution issuing thereon; he is not áffected by any irregularity in the judgment; unless the judgment be utterly void, he gets a title. And he contended, that the judgment in this case was merely irregular, but not void. He cited Oxley v. Mizle, 2 Mur. 250. Skinner v. Moore, 2 Dev. 138. White v. Albertson, 3 Dev. 241. Dev. Eq. 506.

Gaston, J.

It is the law of this State, that a purchaser at execution sale must shew, not only the execution' under which the Sheriff sold, but a judgment warranting that execution. The only reason assigned for this doctrine is, that it must appear that the execution was not the unauthorized act of the clerk, but was awarded by the Court. Although the judgment be erroneous ;■ nay, if it be obtained irregularly,and against the course of the Court; nevertheless, so long as it stands unreversed and in force, it is the act[of the Court, warrants the execution conforming thereto, and upholds the title of the purchaser. But, if what is offered as a judgment have merely the semblance thereof; as if it be rendered by a Court having no jurisdiction of the subject matter, or against a person who has not had notice to defend his right, or if it order what the Court has not power to order, so that upon its face the law can pronounce it null, it is not a judgment, and the execution issuing thereon will not protect the purchaser.

The execution, under which the defendant in this case sets up title, was awarded by the Court, against thelands descended to the plaintiff’s lessor, after notice had been issued to him to shew cause against it. But it is insisted on the part of the plaintiff, that the Court was not competent in law to award the execution. The argument is, that the jurisdiction of the Court, in relation to the subject matter of that judgment, is restricted by certain provisions of the acts of 1828 and 1784, embodied into the Revised Statutes, eh. 46, s. 25, and ch. 63. By these, it is enacted, that when an action shall be commenced against an executor or administrator by warrant, and he shall suggest that he has a defence thereto, by reason of a deficiency of assets, the magistrate may proceed to pass upon the demand of the plaintiff, and to give a judgment therefor, but shall return the warrant with the judgment and the suggestion to the County Court, where the defence shall be made, and if on trial, the plea be found for the executor or administrator, then a scire facias shall issue to the heir at law, to shew cause why the judgment should not be satisfied out of the lands descended. In the case under consideration, the magistrate, notwithstanding such suggestion, awarded execution against the goods and chattels of the intestate ; the officer undertook to levy it on the lands descended; the judgment, execution and levy, were returned to the Court; and then a scire fads issued, untruly reciting, that there had been a plea of fully administered tried in Court, and found for the administrator. And it is asked, can the Court, in rendering a judgment upon the scire facias thus issued, be considered as acting within the limits of its authority ? The answer to this argument is, that all these irregularities antecedent to the scire facias, do not affect the jurisdiction of the Court. It possesses jurisdiction over the subject matter, and that jurisdiction is derived from the general legislative grant to try and determine causes of civil nature. If such causes be brought before it irregularly, and objection to the irregularity is shewn in due season; the Court will refuse to act, or may revoke any act into which it has been betrayed. But if, notwithstanding such irregularities, it does subsequently act, parties being before it, the act must be respected, because it is the act of a Court having authority to try and determine the subject in controversy.

The case of Leary and wife v. Fletcher, decided at the last term, [ante, p. 259,) is not an authority for the plaintiff. That was determined upon the ground that the County Court had passed an order, which by law it could not make. Having a special and limited authority to direct the sale of specific parts of an orphan’s estate to meet ascertained debts, the Court had undertaken to authorize the guardian to sell all or any part thereof he might elect, to meet undefined debts. The act done was one wholly without authority, and not an act erroneously or irregularly done within the scope of authority.

It has been further argued, that inasmuch as in ordinary cases, where one judgment only, is rendered, that judgment must be shewn by him, who claims to be an execution purchaser, so in the cases where two judgments ought to be rendered before issuing execution, the purchaser should be required to shew both these judgments. We do not admit the correctness of this conclusion. The sole purpose of requiring the exhibition of any judgment is, to shew that the execution has the sanction of the Court. Now, if the Court render a judgment that the plaintiff recover his debt, or have execution, upon a former judgment, when in truth there is no such judgment, the adjudication is erroneous, but nevertheless, while it stands, it is the solemn act of the Court, hav \ng power so to adjudge, and therefore authorizes process to it. For most purposes, the scire facias is a new ac~ action, and judgment upon a scire facias is a sufficient warrant for any execution which conforms to it. Let the judgment be affirmed.

Per Curiam, Judgment affirmed accordingly.