Den on demise of McLean v. Paul, 27 N.C. 22, 5 Ired. 22 (1844)

Dec. 1844 · Supreme Court of North Carolina

27 N.C. 22, 5 Ired. 22

DEN ON DEMISE OF MILES McLEAN vs. ABRAHAM PAUL.

Where the execution of a justice of the peace is on the same paper with the judgment, it must he considered as referring to the judgment, and is made certain as to the debt, interest and costs, and the person who recovered the same.

Where the levy of a justice’s execution was “ on 450 acres of land, adjoining the'lands of A. B. and C (mentioning their names,)” the court can see no objection to the levy on its face, and without further evidence cannot say that the land was not sufficiently identified, as our Act of Assembly requires.

It is not competent, on the trial of an action of ejectment, for a party, who claims under a levy made by virtue of a justice’s execution, to prove by parol that due notice had been given of such levy by the constable, as required by Act of Assembly.

The awarding of the venditioni exponas, or order of sale by the County Court, imports, that notice has been duly given to the defendant, unless the contrary clearly appear.

Especially is that the case, when the Court expressly declare that notice ha.s been given.

The cases of Forsythe v. Sykes, 2 Hawks 54. Governor v. Bailey, 3 Hawks 463, and Bwlcev. Elliott, 4 Ired. 355, cited and approved.

Appeal from the Superior Court of Law of Robeson County, at the Fall Term, 1844, his Honor Judge Bailey presiding.

The lessor of the plaintiff claimed the land sued for, as a purchaser at a sale made by the sheriff under several executions issued from the County Court of Robeson. The plaintiff' produced the sheriff’s deed and copies of the records of the judgments and executions, under which the sale was made. From them it appeared, that the defendant confessed four several judgments before a justice of the peace, in favor of the lessor of the plaintiff, on the 10th of November 1841. On each of them a jierie facias was issued on the 13th of vember; on each of which a levy was endorsed by one John McLean, a Constable,- in the following words: “This day levied on the legal and equitable interest of Abraham Paul to four hundred and fifty acres of land, more or less, in Robeson County, adjoining the lands of Giles S. McLean, Dugald Mc-Callum, John McLean, and others, to satisfy the above judgment, this 13th of November, 1841. To the best of my knowledge there are no goods or chattels of the defendant.” One of the executions was in the words following:

‘North Carolina: i

Robeson' County: j

To any lawful officer: You are hereby commanded to execute and sell as much of the goods and chattels of the defendant as will satisfy the above judgment for debts and costs.

For the want of such, levy on the lands and tenements as much as will be sufficient to satisfy the above judgment and the costs.”

The others were substantially the same, though less formal even than the above.

The records then shewed, that at the court, which sat on the 4th Monday of November, 1841, John McLean, the constable, returned the judgments, executions and levies aforesaid •, and thereupon follows this entry in each case:

"Due and legal notice having been given to the defendant, on motion it is ordered by the court, that the judgment of the justice of the peace be affirmed with costs; and it is further ordered, that a writ of venditioni exponas issue to sell the land levied on, to satisfy the plaintiff’s said debt, interest and costs.”

In each record is also set forth a written notice purporting to be a copy of a notice by the constable to Abraham Paul, dated the 13th of November, 1841, that he had that day made a levy on his land, as described above, and, that he intended to return the same to the next County Cohrt, as aforesaid, for the purpose of obtaining an order to sell the said land, when and where the defendant might attend. But it did not appear uPon the notice, in what case or at whose suit the judgment and execution were; and the notice was in the name of the , , constable.- 1

Th'e defendant objected, that the executions issued by the justice of the peace were informal and insufficient; and that the levies Were aláo void, because they did not conform to the statute; And he likewise objected, that it did not sufficiently ' appear, that the defendant had' five day’s notice,•’ as prescribed in the act ; and thereupon the plaintiff offered the said John McLean, as a witness, to prove, that he did give the defendant notice, in each case, for more than five days, of the levy, and of the term of the court to which it would be returned. This evidence was objected to by the defendant,- but was received by the court.

The jury under the directions of the court found for the plaintiff, and from the judgmént thereon the defendant appealed.'

jD. Reid for the plaintiff!'

No counsel in this court for the defendant’.'

Ruffin,- Cl J.

It' is sufficiént for the purposes of the plaint tiff in this suit if any one of the several proceedings will sustain the sale. Certainly the process and proceedings are' very informal, as indeed almost all the acts of magistrates out of court, and of their officers are. It has been found indispensable to shew them great indulgence hitherto; and'we are bound by the precedents: It is plain that the execútion was bn the same paper with the judgment, and by reference to it it is made certain as to the debt, interest and costs, and the person who recovered the same. The case,' therefore, falls upon those points within those of Forsythe v. Sykes, 2 Hawks 54, and Governor v. Bailey, 3 Hawks, 463.

We see no objection to the'levy upon its fa'ce; as without further evidence we cannot undertake to say, that the land is not sufficiently identified by the description,-or that there were any other means by which it could have been more perfectly identified, as by water courses, if it laid on any, or the like.

The court is of opinion, that it was not competent to prove by parol on the trial of the ejectment, that notice had been given to the defendant by the constable1. Such evidence the opposite party ought, of course, to have the right of answering by conflicting evidence ; and, thus, the obligation of the judgment of a court would depend, not on its own terms or the authority of those who gave it, but on the credit given to the testimony of witnesses, as to the proceedings in the cause.

We think, however, that the evidence of the witness was unnecessary, and that the objection was untenable, to which the evidence was to apply. We have lately in Bushe v. Elliot, 4 Ired. 355, had occasion to consider this question, and we then gave it as our opinion, that the rendering of the judgment imports that notice has been duly given to the defendant, unless, indeed, the contrary clearly appear. But in this case the court expressly declare upon the record, that due notice was given, and that precludes all contradiction, or indeed, en-quiry into the matter. The judgment must therefore be affirmed.

Per Curiam, Judgment affirmed.