Den on demise of Murrell v. Roberts, 33 N.C. 424, 11 Ired. 424 (1850)

Dec. 1850 · Supreme Court of North Carolina

33 N.C. 424, 11 Ired. 424

DEN ON DEMISE OF JAMES W. MURRELL vs. JAMES E. ROBERTS.

A reversion in fee, after a term for years, is the subject of execution; the sheriff’s deed is as effectual to pass it as that of the reversioner ; and the tenant, who claims under such deed, is not estopped from setting it up as a bar to an action of ejectment by the reversioner.

Payment to the sheriff discharges an execution ; and a subsequent sale of property under such execution is void, and conveys no title to the purchaser.

Appeal from the Superior Court of Law of Brunswick County, at the Fall Term 1850, his Honor Judge Battle presiding.

The lessor of the plaintiff was seised of the premises in fee on the first day of January 1843, and then leased them to one John Smith for the term of six years. The plaintiff gave evidence, that Smith entered and executed a deed in fee in 1846 to one Dudley, under whom the defendant was in possession at the commencement of this suit in April 1849.

On the part of the defendant evidence was then offered, that one Sullivan obtained a judgment in debt against the lessor of the plaintiff and another person, on which ei fieri facias was issued, by virtue of which the premises were sold in 1846 by the sheriff, and conveyed in fee to the said Smith, and that he afterwards conveyed to Dudley.— This evidence was objected to on the part of the plaintiff, upon the ground, that Smith was estopped to deny the lessor’s title or withhold the possession from him at the expiration of the term, and that the defendant, who claimed under Smith, was likewise so estopped. But the Court received the evidence, and thereon instructed the jury, that Smith had a right to purchase the premises at the sale by the sheriff, and that the title thereby derived might be set up against the plaintiff as a bar in this action.

On the part of the plaintiff further evidence was then offered, that, while the sheriff had the fieri facias in his hands and before the sale of the premises, the whole sum due thereon was paid to the sheriff by one of the defendants therein, in satisfaction thereof. But upon objection on the part of the defendant, the Court refused to receive the evidence, upon the ground, that it was not competent thus to impeach the title of the purchaser at the sheriff’s sale.

After a verdict and judgment against the plaintiff he appealed.

Strange, for the plaintiff.

No counsel for the defendant.

Ruffin, C. J.

There is no error on the first point. The defendant did not attempt to set up a title, in derogation of that of the lessor of the plaintiff at the time of his lease to Smith. On the contrary, he acted in affirmance of that ti tie, by showing the subsequent acquisition of it by Smith, so that both the term and the reversion became united in him. If the lessor of the plaintiff had, by his deed, as-! signed the reversion to Smith, the title thus derived might \ be set up as a bav to this action. It must be the same \ under the sale by the sheriff; for a reversion in fee, after ¡ a term for years, is the subject of execution, and the she- j riff’s deed is as effectual to pass it as that of the rever- / sionre. On the other point, however, the Court holds, that there is error. Payment to the sheriff discharges the execution. If the sheriff have a ca. sa. and after payment by the debtor, within his knowledge, he, the sheriff arrest him, it is, undoubtedly, false imprisonment. It must also be illegal to act on a ji, fa. after satisfaction to the sheriff, and he is a trespasser* if he seize goods afterwards. Lefans v. Mooniscun, 1 Hob. 685. As was said in the case cited at the bar, the execution became thereby func. tus officio, Hammett v. Wyman, 9 Mass. Rep. 138. It follows that a subsequent sale under it is void, and it was so held in that action, which was trespass by the purchaser at that sale, for a second taking of the goods, upon another execution against the same defendant. If it were not so, the sheriff, might, upon another execution for a trifling sum, ruin any person, since he might raise the money over and over again by sale after sale. For, there is no difference between satisfaction by a payment by the debtor in money and one by the sale of his property. After satisfaction to the sheriff in either way, he cannot lawfully seize and sell property, more than he could, without having had an execution at all.

Per Curiam Judgment reversed and^ueiwVe de novo«