Walker v. Marshall, 29 N.C. 1, 7 Ired. 1 (1846)

Dec. 1846 · Supreme Court of North Carolina

29 N.C. 1, 7 Ired. 1

DEN EX DEM. MOSES WALKER vs. JOHN MARSHALL.

Where a judgment is for the penalty of a bond to be discharged on the pay» ment of certain assessed damages, and the execution issuing thereon recites the judgment as for the damages only, this is a fatal variance and any sale under the execution is void.

Where a judgment is against heirs for lands descended, after the plea of fully administered has been found in- favor of the administrator, and the execution issues against the goods and chattels, lands and tenements of the heirs, the execution is void.

Appeal from the Superior Court of Law of Person County, at the Spring Term, 1846, his Honor' Judge Settle presiding.

The lessor of the plaintiff claimed' the land in controversy, under a judgment and' an execution against the heirs at law of Garnett Neely,,deceased, and a Sheriff’s; sale and deed to him as the purchaser. The defendant contended, that there was no proper and legal execution, under which the Sheriff could have sold the land and of this opinion was the Court, and' judgment was rendered for the- defendant, wherefrom the plaintiff appealed.

Garnett Neely had entered into a bond, in a penalty of $2,000, to perform certain covenants mentioned-in the condition of the same. Pi M. McMany, administrator of William Stewart deceased, brought suit on the bond, against the administrators of G. Neely, in Caswell; County Court, and at October Sessions, 1841, obtained judgment for the penalty ($2,000.) The sum of $395 44 was assessed as damages by the jury for a breach of the conditions of the bond, with interest from the 1st day of' July, 1841, until- paid; and there was judgment accord-, ingly i and also for his costs, to be taxed by the Clerk. The plea of “fully administered,” had been found by the-jury in favor of the defendants. A scire facias was then; issued, at the instance of the plaintiff, against the heirs-at law of G. Neely to show cause, why McMany, administrator, &c., should not have judgment and execution-against them as heirs at law of &. Neely, deceased, for-the aforesaid debt and costs. The judgment, as above stated, was recited in the scire facias. At April Sessions, 1842, there was judgment for the plaintiff according to-sci. fa. whereupon nfi. fa. issued to the Sheriff of Person, against “the goods and chattels, lands and tenements of Calvin Neely and John Marshall and his wife, and Nicy Neely, heirs at law of G. Neely deceased,” to satisfy the sum of $395 44, with interest from April Court, 1842, until paid, and for the costs. The Sheriff, returned on this execution a levy on the premises in dispute in this action, as belonging t© the heirs of Garnett Neely, deceased. Whereupon -a venditioni exponas issued, and, at a sale under it, the lessor of the plaintiff became the purchaser of the land now in controversy, and the Sheriff ■executed to him a deed.

Kerr, for the plaintiff.

Norwood, for the defendant.

Daniel, J,

The defendant insist that there never was ■any such judgment as that recited in the fi. fa. and ven-ditioni, and that therefore, the said executions were void in law. The judgment on the sci. fa. against the heirs by default, at April term, 1842, was, that the lands descended from their ancestor to them are condemned to the satisfaction of the judgment recited in the sci. fa. which was for $2,000, to be discharged by force of the statute by the payment of the damages assessed by the jury for the breach of the conditions of the bond. Revised Statutes, Gh. 31, Sec. S3. There never was a judg - ment against the heirs of G. Neely, for the sums mentioned in the fi. fa. and venditioni, under which the land was levied on and sold to the lessor of the plaintiff; the judgment having been for $2,000, and the executions being for $395 44, the damages assessed for the breach. Besides, the judgment was against the lands descended, and the executions were against the goods and chattels, lands and tenements of the heirs themselves. The judgment was, thus, against the assets of the ancestor in the hands of the heirs, while the execution was de bonis pro-priis of the heirs. Those variances between the judgment and executions are fatal to the plaintiff’s title; and the judgment must be affirmed.

PER Cueiam. Judgment affirmed.