Den on Demise of Jones v. Austin, 32 N.C. 20, 10 Ired. 20 (1848)

Aug. 1848 · Supreme Court of North Carolina

32 N.C. 20, 10 Ired. 20

DEN ON DEMISE OF DANIEL JONES vs. GEORGE AUSTIN.

If the jury can collect from the testimony, that the description of land, levied on by a constable under a justice’s execution, as fully identifies it, as if the words of the Act of Assembly had been literally followed, the levy must be pronounced to be good.

Where the return of a constable of a levy on land, under an execution from a justice out of Court, does not state that there was a want of goods and' chattels, and the Court directs a venditioni exponas, the Court must be presumed to have acted right, to have acted upon a waiver of the search for goods and chattels.

The cases of Higgins v. Ketchum, 4 Dev. Bat. 414, Smith v. Low, 2 Ired. 457, Morrisey v Love, 4 Ire. 9S, Burke v. Elliott, 4 Ire. 355, Blanchard x. Blanchard, 3 Ire. 105, Dickson v. Peppers, 7Ire. 429, Borden v. Smith, 3 Dev. <j- Bat. 34, and Henshaw v. Branson, 3 Ire. 298, cited and approved.

Appeal from the Superior Court of Law of Ashe County, at the Spring Term 1848, his Honor Judge Manly presiding.

This was an action of ejectment, in which the plaintiff’s lessor claimed under a sale made by the sheriff, by virtue of a writ of venditioni exponas, against one Zachariah Osborne, and, on the trial, he produced a justice’s judgment against the said Osborne, on which an execution W’as issued and returned to the County Court, with the following levy endorsed by the constable: “The above execution levied on the lands whereon George Austin and Jefferson Osborne now live.” He then produced the record of the .County Court, showing that an order had been obtained for the sale of the said lands, and showed the writ of venditioni exponas, issued thereon, and the sheriff’s deed to him as purchaser. He then introduced testimony to prove, that the defendant, George Austin, and Jefferson Osborne lived upon the land sued for, at the time, when the aforesaid levy was made, and that the defendant was in possesston when the declaration was served upon him, it being admitted that he claimed under Zachariah Osborne.

The defendant contended, that the levy on the justice’s execution was void, because it contained an insufficient description of the land, upon which it was made, and that the County Court had no power to make an order for the sale of the land, because the constable’s levy did not state, that there were no goods or chattels to be found ; and that for these defects the purchaser under the venditioni exponas had acquired no title. The Court instructed the jury upon the first point, that if they could collect from the testimony, that the description of the land in the levy as fully identified it, as if the words of the Act of Assembly had been literally followed, then the levy would be good; and, upon the second point, the Court charged, that, as the Court made the order for the sale of the land levied upon, and a writ of venditioni ex-ponas issued thereon, the sale made by the sheriff under it was valid, and the purchaser acquired a good title. Under these instructions the plaintiff obtained a verdict and judgment, and the defendant appealed.

Guión, for the plaintiff.

Clarke, for the defendant.

Battle, J.

We think that the instructions of his Honor were correct, upon both the points made in the cause. Upon the first, they are fully sustained by the cases of Higgins v. Ketchum, 4 Dev. & Bat. Rep. 414, Smith v. Low, 2 Ire. Rep. 457, and Morrisey v. Love, 4 Ire. Rep. 78. And the testimony, that the lands levied on were in the occupation of the persons mentioned in the levy, at the time when it was made, having satisfied the jury, that sueh were ás fully identified as if the words of the act had been literally pursued, the judgment is not erroneous, and 'cannot be reversed on that account.

The instructions upon the second point are equally sustained by the principle decided in the case of Burke v. EUiott, 4 Ire. Rep. 355. There it was held, that a judgment of the County Court upon a justice’s execution, returned levied on land, under which judgment there were an execution and sale of the land, precluded all collateral enquiry into the regularity of the previous proceedings ; as for instance whether the officer, who made the levy and return, was legally appointed, or whether notice of the levy and return had been given to the defendant in.; the execution. Of the same kind is the alleged irregularity in this case, that the levy does not set forth, that it was made upon the land for want of goods and chattels. It is true that when the laud is not sufficiently identified in the levy itself, or in the levy sustained by extrinsic proof, as in the case of Blanchard v. Blanchard, 3 Ire. Rep. 105, and Morrisey v. Love, cited above, or where the levyis not endorsed upon the execution or upon some paper attached thereto, as in the case of Dickson v. Peppers, 7 Ire. Rep. 427, the order of condemnation made by the County Court will be void, because there is no land to which it can properly apply, and which the sheriff can be authorised to sell, under -the writ of venditioni ex-ponas. It is also true, that when notice is not given to the defendant in execution, previous to the motion for the order of condemnation, or where the defendant appears and objects to the order, because the levy show's that it was made upon the land, w'ithout stating for want of goods and chattels, or, if any such had been levied on, without showing what has been done with them, the orders ought not to be made. Borden v. Smith, 3 Dev. & Bat. Rep. 34. Henshaw v. Branson, 3 Ire. Rep. 298, But when the order is made, then the Court must be presumed to have acted .rightly, to have acted upon an admission or waiver of notice, or a waiver of the search for goods and chattels, or of an account of those, appearing to have been levied on, before the levy was made upon the land. No collateral enquiry can then be made into the regularity of the order; that is, an enquiry not made in a proceeding instituted by the party expressly for the purpose of having it set aside for irregularity or reversed for error. And until thus set aside or reversed, it will sustain any right acquired under it, and therefore will sustain the title of a purchaser, at a sale made under an execution issuing upon it. The judgment must be affirmed.

Per Curiam.

Judgment affirmed.