Henshaw v. Branson, 25 N.C. 298, 3 Ired. 298 (1843)

June 1843 · Supreme Court of North Carolina

25 N.C. 298, 3 Ired. 298

STEPHEN HENSHAW vs. LEVI B. BRANSON.

June 1843

A County Court cannot order an execution upon the return of a levy on land under a justice’s execution, unless it also appears on the return, that there were no goods to be levied on, or when it appears on the return that goods were levied on, though not sufficient to satisfy the execution, and it does-not appear how those goods were disposed of.

Appeal from the Superior Court of Law of Randolph County, at Spring Term, 1843, his Honor Judge Battle presiding.

The case was this. An execution, tested the 23d of September, 1841, issued on a judgment obtained by the plaintiff against the defendant, before a magistrate, came to the hands of the Sheriff of Randolph, who on the same day made return thereon, that he had levied on the goods and chattels of Branson, one of the defendants, and also on three tracts of lands adjoining each other and the lands of other persons in the return named, on one of which the said Branson lived. On the 26th of April, 1842, the plaintiff made a further in-dorsement on the execution, in the nature of a return or as an amendment of his former return, “ there are goods and chattels but not sufficient to be found.” At the August Term, 1842, of the County Court of Randolph, the execution, thus levied, returned and endorsed, was brought into Court, and .advertisement was then ordered to be made to notify Branson of the levy on his lands. At the ensuing Term, November 1842, the plaintiff prayed the Court to order a venditioni escponas to issue to sell the lands. This prayer the Court refused, and the plaintiff appealed to the Superior Court, and the order of the County Court being there affirmed, the plaintiff appealed to this Court.

No counsel for the plaintiff.

Swaim for the defendant.

GastoN, J.

We are of opinion that the Court properly refused the writ prayed for. Without considering several other objections, and apparently grave objections, which stand in the way of the remedy pursued by the plaintiff, it will be sufficient to state, .that the provisions of the acts of 1794 and 1803, as embodied in the Revised Statutes, ch. 62, sec. 16, are explicit, that a justice’s execution shall not be levied on land, except where there is a want of goods to satisfy it, and if any goods be seized, and a levy made on land, because of the insufficiency of these goods to discharge the execution, the return of the officer shall set forth “ what money he has made of the goods,” and what land he has levied upon. The intention of the Legislature is manifest, that no proceedings shall be had for a sale of the land,’ except it be the return of a levy thereon, until the goods seized shall have been disposed of.

The judgment of the Superior Court is affirmed.

Per Curiam. Judgment affirmed.