Cherry v. Woolard, 23 N.C. 438, 1 Ired. 438 (1841)

June 1841 · Supreme Court of North Carolina

23 N.C. 438, 1 Ired. 438

JEREMIAH CHERRY vs. MARTIN WOOLARD.

Where a Sheriff or other officer sells under a valid execution, it is no objection to the title of the purchaser, that, in his deed of conveyance, he mi’sreeites the execution.

Where a Clerk issued an execution, tested oil the 5th Monday after the 4th Monday of September, in the year of our Lord, 1833, and in the 57th year of our independence, and indorsed thereon that the execution actually issued on the 5 th of February, 1833, and the Coroner also endorsed that it was levied on the 21si of February, 1833, the Court must see that the dating of the writ, as to the Christian era, was a misprision of the Clerk, and will correct it accordingly.

The cases of Den ex Dem. Hatton V. Dew, 3 Mur. 260. Goodman v. Armisiedd, 4th Hawks, 19, and Dowell v. Vannoy, 3 Dev. 43, cited and approved.

This was an action of trespass quare clausum fregit, tried at the Spring Term, 1841, of Beaufort Superior Court, before his Honor Judge Bailey. On the trial, it became necessary for the plaintiff to shew title in himself, to the locus in quo. In deducing his title, he gave in evidence a judgment against one Stephen Owens, obtained at Fall Term, 1832, of the Superior Court of Beaufort County, an execu-j tion issued thereon to the Coroner of Beaufort County against Stephen Owens, who was then Sheriff ofthat County, a levy on the land in question and a sale by the Coronor to Benjamin Runyon, who received a conveyance from the Coroner, and then conveyed to the plaintiff. The teste of the execution was as follows : “ Witness, James B. Ellison, Clerk of said Court, at office, the fifth Monday after the fourth Monday of September, 1833, and the 57th year of our independence.” Signed by the Clerk. And the indorsement of the Clerk on the writ, as required by law, was “ Issued 5th day of February, 1833.” The levy of the Coroner indorsed on the execution, was dated, “ February 21st, 1833.” The Coroner’s deed of conveyance recited a sale under an execution, against Stephen Owens, corresponding as to amount with the judgment above mentioned, but “ returnable to Spring Term, 1833.” The defendant objected, that the execution set forth in the Coroner’s deed, did-not correspond with the execution levied upon the land, which objection his Honor overruled, and under the instruction of the Court, the jury returned a verdict for the plaintiff. There was a rule for a new trial, which was discharged, and judgment reudered for the plaintiff, from which the defendant appealed.

No Counsel appeared for either party in this Court.

Gaston, J.

The objection, takén on the trial to the derivation of title on the part of the plaintiff, is because of a supposed discrepency between the' execution, recited in the Coroner’s deed, and the execution, under which the Coroner made the levy and sale. This objection presupposes and admits, that the officer had a valid authority to sell, but insists that his deed was invalid to convey the land sold, because in the deed his authority was inaccurately recited. The question presented by this objection, is- not with us an open question. . The objection was deliberately considered by this Court, in the case of Den on dem. Hatton v. Dew, 3 Mur. 260, and overruled. His Honor, therefore,- properly overruled it in this case.

But upon a comparison of the execution' recited in the' deed, with that under which the' officer sold, as they are both set forth in the transcript, the alleged discrepency will be' found not to exist.- The execution under which the officer sold, is tested the 5th Monday after the 4th Monday of September, in the year of our Lord, 1833, and in the 57th year of our independence, and is made returnable to the term of said Court, to be held on the 5th Monday after the 4th Monday of March next. This, it is said, must be the 5th Mom-day after the 4th Monday of March, 1834, whereas, the' Coroner’s deed recites the execution as returnable on the 5th Monday after the 4th Monday of March, 1833. But it is manifest that there is a clerical misprision in the date of the executiqp, with respect to the year of the Christian era.— This appears not only from the year of independence thereunto subjoined, but from the indorsation of the Clerk, that the execution actually issued on the 5th day of February, 1833, and of the Coroner, that it was levied on the 21st of February, 1833. The cases of Goodman v. Armistead, 4 Hawks, 19, and Dowell v. Vannoy, 3 Dev. 43, are authorities to shew that such a misprision will be corrected by these indicia of truth. Thus corrected, the execution is tested of the Fall Term, 1832, and the deed truly represents it as returnable to the Spring Term, 1833.

Per Curiam, Judgment affirmed.