McEntire v. Durham, 29 N.C. 151, 7 Ired. 151 (1846)

Dec. 1846 · Supreme Court of North Carolina

29 N.C. 151, 7 Ired. 151

DEN ON DEM. OF JOHN McENTIRE vs. ARCHILEES DURHAM.

A purchaser at a Sheriff’s sale of land, under execution, is only bound to shew a judgment, execution and the sheriff’s deed. He is not bound to shew a levy by the sheriff. His title is complete as against the defendant in the execution.

Appeal from the Superior Court of Law of Rutherford County, at the Fall Term, 1846, his. Honor Judge Calcwei.l presiding.

The plaintiff claimed title to the lands in dispute as a purchaser, at ' a sale made by the sheriff; and, on the trial of the case, he offered in evidence several judgments rendered against the defendant, in Rutherford Superior Court, in favor of third persons ; also executions issuing thereon, a sheriff’s deed covering the premises, and proved the defendant in possession of the same. The sheriff was examined, and testified, that said lands were sold by virtue of said executions. It was insisted for the defendant, that it ought to appear, that a levy on the land had been made by the Sheriff, and that he had acted under it. The Court charged the jury, that to entitle the plaintiff to their verdict, in a case of this kind, he must show a judgment against the defendant; an execution issuing thereon, and corresponding with said judgment, a Sheriff’s deed covering the premises, and that the defendant was in possession, when the suit was brought; and if he made out these facts, he was, prima facie, entitled to their verdict.

The jury found for the plaintiff, and on a new trial being refused, the defendant appealed to the Supreme Court!

Alexander and Bynum, for the plaintiff.

Guión, for the defendant.

Daniel, J.

The executions, which were issued on the judgments against Durham, bound his lands from the teste of the same. The Sheriff was the proper officer to sell the land and raise the money to satisfy the said executions. The Sheriff on the trial, proved, that he sold the lands by virtue of said executions. The plaintiff showed several judgments and executions against Durham, and then proved a sale of the land by the Sheriff, under those executions, and produced the Sheriff’s deed to himself. That was sufficient to transfer the title to him. The objection taken by the defendant, that the Sheriff did not levy the executions on the land before he sold them, was, we think, properly overruled by the Judge. There is no law, that we know of, which requires a purchaser of land at a Sheriff’s sale to show, that the executions had been levied on the same, before the sale by the Sheriff to him ; if he shows a judgment, execution sale, and a Sheriff’s deed to himself for the land, he is entitled to recover the possession, as against the defendant in the execution.

Pee Curiam. Judgment affirmed.