Love v. Gates, 24 N.C. 14, 2 Ired. 14 (1841)

Dec. 1841 · Supreme Court of North Carolina

24 N.C. 14, 2 Ired. 14

DEN EX DEM. ROBERT LOVE vs SILAS GATES AND ANOTHER.

kfi.fa. is issued returnable to January Term, 1821, of a County Court, and is returned to that Term. The clerk re-issues the same paper, marking on the back “ alias tp March .Term, 1821,” “alias to July Term, 1821,” “ alias to October Term, 1821,” and signs his name as clerk to this memorandum. A sale of land, made by the Sheriff under such a paper, between the July and October Terms, 1821, is utterly void.

After the return of a fi. fa. regularly levied on land, the Sheriff cannot sell the land without a new writ giving him that authority.

The cases of Barden v MlKinnie, 4 Hawks 279, and Seawell v Bank of Cape Fear, 3 Dev. 279 cited and approved.

This was an appeal from the judgment of his Honor Judge Manly, at the Fall Term, 1841, of Buncombe Superior Court. The plaintiff, in support of his title to the land in controversy, in the court below, produced a judgment rendered in Buncombe County Court, an execution issued in pursuance of said judgment, and several indorsements on the execution, and also the deed of the Sheriff of Buncombe, dated in August, 1821, conveying the said land. The execution was as follows:

“ State of North Carolina.

To the Sheriff of Buncombe County, greeting:

You are commanded that of the goods and chattels, lands and tenements of Zachariah Candler, in your county, you cause to be made the sum of £ 188. 8. 6. debt, and £26. 7. 7. damages, which Robert Love lately before the Justices in our Court ofPleas and Quarter Sessions for the county of Buncombe, recovered against him for debt and damages, besides the sum of two pounds five shillings and three pence for costs and charges in that behalf expended, whereof the said Zachariah Candler is convicted, as appears on record; and have you the said moneys before our said justices, at the Court-house in Asheville, on the first Monday in January next, to be paid to the said Robert Love, and have you then and there this writ. Witness John Miller, clerk of said Court at office, the first Monday after the fourth Monday of September, 1820.

JOHN MILLER, Clerk,

by E. H. M'Lure, Deputy Clerk.”

On which execution were the following indorsements: — . “ Fi. fa. to January, 1821. No goods, B. S. Brittain, Shff, by H. Deyman, Dep. Shff.” “Alias to March, 1821, John Miller, Clk, by E. H. M'Lure, Dep. Clk.” “ Alias to July, 1821, J.M. Clk.” “Alias to October, 1821, J.M. Clk.” “ Levied on Candler’s iron works land and other tracts, and sold, on the last Monday of August, to Robert Love, by agent James Love, for one hundred and twenty dollars, B. S. Brit-tain, by H, Deyman, Dep. Shff.”

The Court intimating that by this evidence the plaintiff had shown no title, he submitted to a nonsuit and appealed to the Supreme Court.

Francis for the plaintiff.

No counsel for the defendants.

Gaston, J.

The lessor of the plaintiff set up titleto the land in dispute, under a conveyance from the Sheriff, purporting to have been made under an execution sale. The paper exhibited as an execution was a writ oí fieri facias, issued from the Court of Pleas and Quarter Sessions of Buncombe county, bearing teste the first Monday after the fourth Monday of September, 1820, returnable to the January Term, 1821, of said Court. It had been returned to that Term “ no goods,” and afterwards the same writ, or rather the same paper, was repeatedly issued to the Sheriff with the indorsation of “alias,” and under it, so re-issued and indorsed, the Sherifflevied on the land in dispute, and made the sale at which the lessor of the plaintiff purchased. The presiding Judge held that the levy and sale were made without authority, and in deference to this opinion the plaintiff submitted to a nonsuit.

Of the correctness of this opinion a doubt cannot be entertained. After the return term of the fieri facias, the authority of the Sheriff to seize property under the writ was at an end. The mandate of the writ expired by its very limitation. The re-issuing of the expired writ, and the indorsation of alias thereon, did not change its tenor nor give a new mandate. A Sheriff cannot levy without an existing authority. And, with respect to lands whereon he has made a valid levy, he cannot, after the return of the writ, proceed to a sale, until a new writ shall be issued, communicating that authority. Den ex dem. Barden v M‘Kinnie, 4 Hawks 279. Seawell v Bank of Cape Fear, 3 Dev. 279.

Per CuRiAM.

Judgment affirmed.