Heath v. Latham, 29 N.C. 10, 7 Ired. 10 (1846)

Dec. 1846 · Supreme Court of North Carolina

29 N.C. 10, 7 Ired. 10

ROBERT R. HEATH vs. CHARLES LATHAM.

Under the statute, directing, that, upon judgments against infant heirs, the execution shall be stayed for twelve months, the guardian of the infants has a discretion to waive the stay, and permit the execution to issue instanter, and the sheriff is bound to proceed upon such execution.

Appeal from the Superior Court of Law of Washington County, at the Fall Term, 1846, his Honor Judge Pearson presiding.

This is an action on the case brought to- recover of the defendant, who is the sheriff of Washington County,. damages for failing to sell the real estate of the infant heirs at law oí John D. Bennett, under two Fi. Fas. that issued to him at the instance of the plaintiff, on motion in open Court, from August term, 1S45, of Washington County Court, for not appropriating to the said executions a proportion of the monies raised under the executions hereinafter mentioned, viz : 1, 2, 8, 4, 5, and 6. It appeared that the plaintiff obtained his judgments against said infant heirs, on debts due from the ancestor, at May term, 1845, of the said Court, and that at the succeeding term of the said Court, in August 1845, the stay of execution was waived by Thomas E. Pender, the Clerk of said Court, who was on the return of plaintiff’s Sci. Fa. at May term, 1845, appointed guardian ad litem to said infant heirs : other judgments in behalf of ether plaintiffs were obtained at August term, 1844, of said Court, against said infant heirs, on debts due from their ancestor, upon which there was a stay of execution of twelve months, and at the expiration of the said 12 months, on motion in open Court, executions were ordered to issue, and accordingly did issue from August term, 1845, of said Court, and under the last named executions, the sheriff sold the land of the said infant heirs and applied towards their satisfaction all the proceeds of the sales. Upon the face of these executions, under which the defendant sold, it appeared that they “issued after a stay of 12 months and on motion in open Courtupon the face of the plaintiff’s executions, it appeared that they “ issued after waiver of the stay by the guardian ad litem and on motion in open Courtand upon each of the plaintiff’s executions the defendant made the following return: “ This execution having come to my hands and it not appearing by it that it was issued after a stay of 12 months and on motion in open Court, and there being other executions, no’s. 1, 2, 3, 4, 5, and 6, regularly issued against the same defendants, returnable in the same Court to the same term, i levied said executions, no’s. 1, 2, 3, 4, 5, and 6, on all the lands of the defendant in my county, and sold the same under said executions, the 17th November, 1845, and the proceeds did not satisfy said last mentioned executions.” Signed, C. Ratham, Sheriff. Upon these facts, if the Court be of opinion that the plaintiff is entitled to recover, then judgment to be rendered in his favor for sixty-seven dollars and twenty cents, otherwise, judgment for defendant; and his Honor Judge Pearson being of opinion that the plaintiff was not entitled to recover, rendered judgment in favor of the defendant; from which the plaintiff prayed an appeal to the Supreme Court.

Heath, for the plaintiff.

A. Moore, for the defendant.

Daniel, J.

The statute declares, that no execution shall be levied on the goods or chattels, lands or tene-nients of any minor in the hands of his guardian, until twelve months after judgment obtained on the scire facias, nor shall execution issue at any time, but on motion in open Court, Rev. Stat. Ch. 63, Sec. 11. The plaintiff’s executions were issued from a Court having competent jurisdiction, and after a motion made in open Court, that they should be issued. The defendant, who was then the Sheriff, insisted, that, as it did not appear by the executions, that they were issued after a stay of twelve months, and also on motion in open Court, he was not bound in law to execute them on the lands descended to the infant heirs of William Bennett. The Judge who tried this cause, was of the same opinion, and gave judgment for the defendant. We do not agree with his honor. The statute was enacted, solely for the benefit of infant heirs. Twelve months stay of execution is given them by the statute to enable their guardians to provide the means Qf satisfying the judgment, without a sale of the property, or to enable the guardian to prevent the property being sacrificed by an immediate sale. But where-ever a statute is made for the benefit of a person or persons, he or they may waive that benefit. And there was a waiver, by the guardian of the infant heirs of Bennett, of the time the law gave them as to the stay of the executions of Heath. In many cases which may happen, as in this, the infant heirs and their guardian may see that the property descended cannot by any means in their power be saved from a sale ; and then they may, in such cases, wish that all the creditors of their ancestor should be paid equally, as far as the proceeds of the sales made of the property would admit; and we see no good reason why they may not, to effect such an object, waive their stay of execution and let it be done ; for the afore mentioned statute was not passed to favour any set of creditors over others. And not only did the guardian waive the stay of execution, but the heirs have since acquiesced in what was done, and have not moved to set the executions aside. On this waiver, the Court, on motion, ordered Heath’s executions to issue ; and they were issued, and came to the hands of the Sheriff; and he was thereby legally commanded, and it was his duty to have levied on and sold the lands under them, with the others then in his hands. He did not do it, but refused to do it, and the plaintiff therefore was damnified, and had a legal and just cause of action against him. We think, that the judgment must be reversed, and judgment be rendered for the plaintiff.

Per Curiam. Judgment for the plaintiff.