Den ex dem. Davis v. Abbott, 25 N.C. 137, 3 Ired. 137 (1842)

Dec. 1842 · Supreme Court of North Carolina

25 N.C. 137, 3 Ired. 137

DEN EX DEM. FRANCIS DAVIS vs. WILLIAM R. ABBOTT.

December 1842.

A sheriff may at his discretion sell land, under an execution, by the acre. When he sells by the acre, he must have a survey made of the land sold, or the boundaries so described in his deed to the purchaser, as to identify the part sold; and lid must be particular in describing the locality of the acres to the bidders at'the sale.

When an- officer has levied a justice’s execution on limd ahd returned it to court, his return' of a copy of the notice given to the defendant, with his official certificate that ho has served it, is sufficient prima facie evidence of such service.

It is not necessary that the court'in an order for the sale of land' so returned levied by the constable, should'set forth that the notide had been proved to them to'have been previously given.

Appeal from the Superior Court of Law of Camden comity, at Fall- Term, 1842, his Ho'nor Judge. Bailey presiding.

On the trial of this'Ejectment, ihe following fact's were agreed upon. The lessor of the plaintiff shewed title in himself to the premises, and that the defendant was in possession at the time the’suit was brought. The defendant then shewed a judgment against the lessor of the plaintiff, before a justice of the peace, and an execution thereon, which execution, for want of goods and'chattels, was'levied upon his lands, and returned'tó May Term, 1827, of Camden County Court, at which term an order of sale was made, and execution issued from' that Court, returnable to the ensuing August Term, 1827, of the said court. Under this execution, the Sheriff exposed the lands of Davis to sale by the acre, and sold so much of the entire tract as would satisfy the execution, and executed his deed to-the purchaser, and the purchaser afterwards sold the land-to the defendant Abbott.— The defendant shewed another judgment obtained against lessor of the plaintiff, before a justice oí the peace, the execution on which, for want of goods and chattels, was also l°vied upon the lands of Davis, and returned to November Term, 1831. At that Term, a notice was returned to the said court by the constable, of which the following is a copy:

“ Mr. Francis Davis :

Sir — I have levied an execution at the instance of James Dozier, on your lands and tenements, that is to say, levied on the part of upland, adjoining George Ferebee, Esq. and Nelson R.,Cartwright and others, and levied on another piece of upland, adjoining the lands of Washington Brite, Charles Whitehurst, and others, and levied on one piece of Juniper Swamp, situate on the New Swamp Bridge, and on the Cur-rituck line, and adjoining the lands of Washington Brite, and others, and I shall return the said execution to the next County Court of Pleas and Quarter Sessions to beheld for the County of Camden, at the Court House ,in Camden, on the 7th Monday after the 4th Monday in September, 1831, at which time and place you can attend if you think proper. This 5th November, 1831.

(Signed) WILSON A. JONES, Constable.

It appeared by the return on the notice, that the constable had duly served the same on Davis. At that term the entry on the docket was in the following words, viz :

“ J. W. Dozier 1 Execution levied on land. Ordered . Í that execution issue.” Francis Davis. )

From that term execution issued, and the land was sold by the Sheriff to the defendant Abbott. .

The lessor of the plaintiff insisted as to the first sale, that the purchaser got no title, because it appeared that the Sheriff sold so much of the land as would satisfy the execution, whereas he should have sold the entire tract, and, as to the last sale, he insisted that there was no evidence that it was proved to the court that notice had been given to the defendant of the levy upon the land ; that before the court ordered the said sale, it should have been proved that the levy was made, and that the court should have adjudged, that notice of the said levy had been given to the defendant. His Honor was of opinion, that the notice and sale were sufficient to divest the title, and under his instruction the jury returned a verdict for the defendant. A rule for a new trial having been refused, and judgment rendered pursuant to the verdict, the plaintiff appealed.

A. Moore for the plaintiff.

Kinney for the defendant.

Daniel, J.

Under the execution, issued to satisfy the first judgment mentioned in the case, the sheriff sold by the acre as much of the land that had been levied on, as made the debt and costs. This mode oí saléis not usual, we admit, but we cannot conceive that there is any thing illegal in it, and in this case there is no pretence of fraud in the sheriff, or loss by the debtor. If chattels are levied on, the sheriff sells the same in parcels, so as to make the debt by as few of them as he can conveniently. If he can save to the defendant a part of his land levied on, and satisfy the execution out of the remainder, the defendant must generally be benefitted by it. The sheriff is a high and responsible officer, and a reasonable discretion, exercised by him in making sales, either by exposing the whole tract or selling by the acre, we think is allowable : both the plaintiff and the defendant may. in many cases, be benefitted by it. In such sales by the acre, the sheriff will be under the necessity of having a survey made of the land sold, or the boundaries so described in his deed to the purchaser, as to identify the part sold. And the sheriff must be particular in describing the locality of the acres to the bidders at the sale.

Secondly; It was contended by the lessor of the plaintiff, that the second judgment, under which the defendant claimed title, was void ; because the preliminary notice to the rendering of such a judgment had not been properly proven to been given. The act (Rev. Stat. c. 45, s. 19,) does not prescribe .the mode, in which the service of the notice shall proved to the court, but it directs that th.e officer shall serve the defendant with notice in writing, at least five days before .the term at which the execution is .to be returned, and that the c.ourt shall not make an order of sale of the laud, until such notice has been given. The notice, it seems, cannot be executed by .any other person than the officer, whether he be sheriff or constable. It seems to us that it is in the nature oí a scieri facias, to shew .cause why the order of sale should not be made by the County Court, and that the return of the copy, with the officer’s certificate, signed by him in his name of office, as this is, is prima fa-cie evidence of the truth of it. The returns made by sheriffs and constables on all process and notices, which come into their hands to be executed, are- uniformly made in this way.1 Vide Rev. St. c. 62, s. 33, as to notices served by constables; the certificate of the constable on the written notice is declared to be evidence of the service of the notice. We do not think that the Legislature contemplated a different mode of proof of the service of the notice in this case, from that which had been usually received. That the court must adjudge and declare in the order of sale.made, that the notice was proved to them to have been previously given, is not, in our opinion, necessary to the validity of the order. The judgment must be affirmed,

Per, Curiam. Judgment affirmed.