Doe on demise of Blanchard v. Blanchard, 25 N.C. 105, 3 Ired. 105 (1842)

Dec. 1842 · Supreme Court of North Carolina

25 N.C. 105, 3 Ired. 105

DOE ON DEMISE OF JOHN H. BLANCHARD vs. MARY BLANCHARD.

December 1842.

The purchaser at an execution sale mrfet shew a judgment, and an execution corresponding thereto. An execution at the instance of B. is not warranted by a judgment in favor of A.

If a constable in returninjg to court a levy on land does not describe it as required by the Statute, Rev. St. c. 46, s. 16, a purchaser under a venditioni exponas, issued by the Court, in order to support his' title in a trial at law, must shew by extrinsic evidence, that the return does as completely identify the land as it would have been' identified by a' literal observance of the Statute.

The cases of Huggins v Ketchnm, 4 Dev. &Bat. Rep. 414. "Smith v Law, 2 Ircd. Rep. 457. Hen on dem, Hobson v Murphy, 1 Dev. & Bat. 586, and Ingram v Kirby, 2 Dev. & Bat 21, cited and approved.

Appeal from the Superior Court of Law of Duplin county, .at Fall Ter'm, 1842, his Honor Judge Manly presiding.

On the trial of this ejectment the lessor of the plaintiff, as a part of his title, produced a judgment in favor of William McCurdy against Noah Blanchard, obtained before a justice of the peace, and: a separate execution with subsequent legal proceedings in favor of Reuben Blanchard, against Noah, Blanchard. This execution was indorsed as follows :

Levied on the land of Noah Blanchard, joining the lands of H. Blackmore,- Reuben- Blanchard, and others. 8th April, 1831.

JE& LAWSON, Dep. Sheriff.

This execution was'returned'to court, and notice given to the defendant in the; execution. A venditioni exponas issued from the court founded on this levy, and, at the sale of tho land, Reuben Blanchard became the purchaser, and under him the lessor of the plaintiff claims. The court intimated an opinion, that the plaintiff in the execution, who became the purchaser at the sale, acquired no title on account defectiveness °f the proceedings, that the execution was not supported by the judgment, and, if it were, there was no sufficient levy endorsed upon the execution, and, without them, the subsequent judgment and order of sale were nullities.

In submission to this opinion, the plaintiff suffered a non-suit, and appealed to the Supreme Court.

No counsel for the plaintiff.

D. Reid for the defendant.

Gaston, j.

The plaintiff undertook to deduce a title in the premises to his lessor, under n purchase and conveyance from the Sheriff. The execution, under which the Sheriff sold, was-a vendifióni euforias, purporting to have been issued from the County Court, and commanding the Sheriff to expose lósale,- “the land of Noah Blanchard, joining H. Blackmore and others,” which land, the execution recited, had geen theretofore levied on by a constable, by virtue of judgment against the said Noah, in favor of Reuben Blanchard, and which levy had been' returned to court and confirmed, and an order of safe thereon made. It does not appear that the order of court was exhibited,- but the plaintiff gave in evidence a writ of fieri facias issued by a justice in favor of Reuben Blanchard against Noah Blanchard, a return thereon by the constable¿ of a levy on the land of Noah Blanchard, “joining the lands of H. Blackmore, Reuben Blauchard, and others,” and a notification from the constable to the said Noah, of the levy aforesaid, that it would be returned to the court, and that the said court would be moved for an order of sale thereon. The plain tiff ’also gave in evidence a judgment before the'justice, which he-alleged to be that whereon the fieri facias was sued out, but the same was a judgment rendered for William McCurdy, against the said Noah. Upon this evidence the court was of opinion that the plaintiff had not made out a title in his lessor, and, the plaintiff thereupon submitted to a nonsuit.

We see no error in the opinion expressed. Both the objections made below to the title, appear to us to be well founded.

A venditioni exponas confers no original authority on the officer to make the debt recovered. It js but an order to carry out into final effect, by a sale, a levy previously made; and if that levy be not valid, the sale under the venditioni transfers no title. If a valid levy has been made on chattels, the Sheriff may, after the return of the fieri facias, sell without a venditioni, because by the seizure he has acquired a property in the chattels, for the purpose of satisfying the creditor. If the levy has been made on land, he cannot, after the return of the fieri facias, sell without a venditioni, because with us, by such a levy, the land is not seized by the.Sheriff, but only set apart for the satisfaction of the judgment, and the authority of the Sheriff to act under the fieri facias, expired by its return. But in each case, it is indispensable for the security of the purchaser, that the thing sold should have been seized orleviedon by virtue of a valid Ji-fa. It is also perfectly settled with us, that, however an officer may be protected in rendering obedience to an execu_ tion, although unwarranted by a judgment, because he is not bound to look behind his writ, a purchaser under an execution sale must shew, not only the execution, but a judgment which warrants and sustains it. Den on dem. of Dobson v Murphy, 1 Dev. & Bat. 586. And this doctrine has been explicitly held in cases of levies made by constables returned to Court, and sales under writs of venditioni there awarded. Ingram v Kirby, 2 Dev. & Bat. 21. Now it cannot be pretended, that an execution in favor of B. is warranted by a judgment rendered in favor of A.

The levy too, as returned, does not conform to the provisions of the law. The law requires that it shall set forth what land the constable has levied on, “ where situate, on what watercourse, and whose lands it is adjoining.” Rev. Stat. c. 62, s. 16. In construing this enactment we have held, that whenever the levy returned departs from the terms of description prescribed in the Statute, the onus is thrown on the purchaser of shewing, by extrinsic evidence, that the return do.es as completely identify the land, as it would have been identified by a literal observance of the Statute. Huggins v Ketchum, 4 Dev. & Bat. Rep. 414. Smith v Low, 2 Ired. Rep. 457. No extrinsic evidence in this case was offered to establish this identity. The judgment of the Superior Court is affirmed with costs.

Per CmsjArvj, Judgment affirmed.