Den on Demise of Smith v. Fore, 32 N.C. 37, 10 Ired. 37 (1849)

Aug. 1849 · Supreme Court of North Carolina

32 N.C. 37, 10 Ired. 37

DEN ON DEMISE OF SAMUEL SMITH vs. LEWIS FORE.

Where a venditioni exponas has issued and the land mentioned in it has been sold, another venditioni exponas cannot issue, but, if it does, it is invalid and the purchaser under it acquires no title. The proper execution, if a balance of the judgment is unpaid, isaji fa.

Where a.defendant in an execution is sued in ejectment by the purchaser under that execution, he is not prevented from contesting the right to recover, unless the execution was a valid one.

Appeal from the Superior Court of Law of Buncombe County, at the Special Term in July 1849, his Honor Judge Caldwell presiding.

On the trial of this ejectment, the lessor of the plaintiff offered in evidence a judgment of a justice of the peace, at the instance of one Poor against the'defendant, an execution thereon and a levy on land indorsed, then a memorandum on the docket of the County Court, in these words, “ Order of condemnation,” then a venditioni exponas and a sheriff’s deed, and proved the defendant in possession. In behalf of the defendant it appeared, that the said tract had been sold, sometime before the sale to the lessor, under a venditioni exponas, that had previously issued on the same judgment and proceedings, and had been purchased by one John Davis, to whom the sheriff had executed a deed, for the said land, of older date than that under which the plaintiff claimed. For the defendant it was insisted, that the second sale was void. Other points were made but it is not necessaiy to state them.

A verdict was taken for the plaintiff, subject to the opinion of the Court. It was agreed, that the verdict-should be set aside and a nonsuit entered, iu case the Court should be with the defendant on the questions reserved, or either of them. The Court directed the verdict to be set aside and a nonsuit entered, from which judgment the plaintiff appealed.

J. W. Woodfin, for the plaintiff.

Avery, for the defendant,

Pearson, J.

It is only necessary to notice one objection : as that is fatal to the plaintiff’s right to recover. The lessor is a purchaser at a sheriff’s sale, under a venditioni exponas, issuing upon a constable’s levy. The land had been before sold under a venditioni exponas issuing upon the same levy, and one Davis had become the purchaser, and taken the sheriff’s deed. This rendered the levy functus officii, and there was no authority to issue the second venditioni exponas, ündér which the lessor purchased. As the price given by Davis did not sátisfy the debt, a judgment might have been taken in the County Court, upon which a fieri facias might have issued.

The principle, that the debtor is not at liberty to resist the recovery in ejectment, by the purchaser at a sheriff’s sale, does not apply, because the lessor has not shewn, himself to be a purchaser within the meaning of that rule. Such a purchaser must shew a valid execution. The lessor has failed to do so in this case, and is not entitled to the rights of a purchaser at a sheriff’s sale..

Pek Curiam.

Judgment affirmed.