Den on demise of Badham v. Cox, 33 N.C. 456, 11 Ired. 456 (1850)

Dec. 1850 · Supreme Court of North Carolina

33 N.C. 456, 11 Ired. 456

DEN ON DEMISE OF WILLIAM BADHAM & AL vs. JOHN COX.

When a vendor of land retains the title, as a scourily for the purchase money, and a balance remains due, the vendee has not such an interest as is liable to execution under the Act, Rev.Stat. eh. 45, sec. 4, so as to divest the legal title of the vendor.

Under a venditioni exponas against land, the sheriff can sell only that, -which ¡¿he could have sold under lh.eji.fa. on which the venditioni exponas issued, while suchjt./a, remained in his hands unreturned.

If the defendant in an execution has no interest iu land, which is subject to be levied on, while the fieri facias remains in the hands of the sheriff, un-returned, but, after the return, he acquires a title, which is subject to execution, this subsequently acquired title cannot be sold under a venditioni exponas issuing upon such fieri facias.

Such subsequently acquired title shall not operate as an estoppel, in favo of a purchaser at a sale, made under such venditioni exponas. The law only sells estates under its process, and not the chances of an estoppel.

The cases of Flynn v Williams, 1 Ire 509, Gentry v Wagslaff., ¡3 Dev 270» Tarkintonv Alexander, 2 Dev & Bat 87, and Smith v Spencer, 3 lie 265, cited and approved.

Appeal from the Superior Court of Law of Chowan County, at a Special Term, in December 1850, his Honor Judge Battle presiding.

This was an action of Ejectment.

Upon the trial the case appeared to be as follows.— The] defendant, Cox, was seised in fee of the premises, being a wharf and store in the town of Edenton, and, on the 1st of January 1843, contracted for the sale of them to one George Gordon, in fee, for the price of $2500, payable as follows : $1800 on the 1st of May 1848, and $700 on the 1st of January 1849; and a conveyance was to be made when thejmrehaso money with the interest therr''”1 should be fully paid, but, in the mean while, Gordon was to be let into possession. Articles were entered into accordingly, and Gordon took possession and paid the iirst instalment, but no part of the second. In March 1849 judgments were obtained before justices of the peace by several ofGordon’s creditors, and executions were issued thereon, and levied on the premises and returned to the County Court, and in August following, orders of sale were made, and then writs venditioni exponas were sued out, under which the Sheriff sold the premises to the lessors of the plaintiff, on the 10th of November 1849, and made them a deed. On the 6th of May 1849, Gordon made to Samuel T. Bond an assignment of all his interest “in the premises, in trust to sell the same and out of the proceeds pay a debt from him to Haynes and Goodrige; thereafter Gordon continued in possession until the Sth ofOct. 1849, on which day Bond, in conformity with the assignment to him, made a contract for the sale of a part of the premises to the defendant, and Gordon went out, and he and Bond let the defendant into possession of that part of the premises which he, Cox, purchased back, and whichis in dispute in this action. On the Gth day of November 1849, Cox executed to Gordon a deed in the following terms:

“Know all men by these presents that I, John Cóx, of &c., agreeable to amemorandum of agreement entered in'o with George Gordon of &c., on the 1st of January 1848 to make title to a certain portion of wharf properly known as &c , on the payment of &c.. Now therefore in consideration of the sum of $2650 being paid before the delivering of these presents, and to enable Haynes and Goodridge to make sale and pay me, as also to convey to me, the said Cox, such portions of said property as I may purchase at said trustees sale, as also agreed to by the said George Gordon, I hereby convey the following property in lbe simple to him the said George, and his heirs and assigns forever, that is to say, the wharf &. Which said property hereby conveyed I do warrant, &c.. to the said George Gordon, and his heirs, against the lawful claim of all persons.”— On the same day Bond and Gordon executed to Cox a deed for the part of the premises claimed by the defendant in this suit, purporting to convey the same in fee.— Therupon the counsel for the plaintiff insisted, that Gordon had, under the original contract between him and the defendant, such an interest as might be levied on under th e fieri facias, and be sold under the venditioni expo-nas, or that, by the deed from the defendant of the 5th of November 184Ü, Gordon acquired such an interest as was liable to be sold under the venditioni exponas and passed by the sheriff’s sale of the 10th of November 1849, and his deed to the lessors of the plaintiff; and that the defendant was estopped to deny their title. But the Court held, that the plaintiff could not recover, and, after a verdict and judgment against him, he appealed.

A. Moore and Heath, for the plaintiff.

No counsel for the defendant.

Ruffin, C. J.

No title passcdbyt.be sheriff’s sale. — • When the vendor retains the title, as a security for the purchase money, and a balance remains due, the vendee has not such a trust as is made liable to execution by the 1st section of the act of 1812,.so as to divest the legal title of the vendor. That was settled as soon as the aet passed. Consequently the constable’s levy was ineffectual, at the time it was made and returned. It follows, likewise, that the sale under the venditioni exponas was equally inoperative, notwithstanding the debtor may have acquired the legal title, while the sheriff had the latter writ in his hands. The case may be considered, as if the fierifacias had been issued from a Court of record and directed fo the sheriff'. The debtor’s interest in the premises could not have been sold or taken under it, at any time before its return, inasmuch as it was not subject to execution; and, if there had been a sale under the fieri facias, the subsequently acquired legal estate would have been unaffected by it, because the law only sells estates under its process, and not the chances- of an estoppel. Flynn v. Williams, Ire. 509 Gentry v. Wagstaff, 3 Dev. 270. It must be the same with the sale under the venditioni exponas, since that was founded upon the levy, which was made and returned, when the debtor had no estate. That results from the effects of a fieri facias on land and from the peculiarity o f the venditioni exponas. The levy of the fieri facias does not vest either the title or the possession of land in the sheriff, but merely confers on him the power to sell the debtor’s estate or interest, such as it is, while he has the writ in his hands before the return day. Barden v. McKinnie, 4 Hawks 279. If a title accrue to the debtor after the levy, but while the fi. fa. is in force, no doubt it may be sold, and will pass by the sale of the land, simply, without special reference to the new title ; for it is within the mandate of the writ under which the sale is made, ‘ffhat may be true, also, when a sale was not made on th of. fa., but on a venditioni exponas, but a title accrued to the debtor between the levy and the return of the fa. But it seems clear, that the venditioni exponas does not attach to an estate, acquired by the debtor after the return of the fieri facias. In respect to chattels, that writ confers no authority to take or even to sell them, but is merely to compel the sale of property before vested in the sheriff and in his possession, which he might sell without the writ. It is, indeed, otherwise in respect to realty. There the office of the writ is to confer an authority on the sheriff, as well as to compel him to sell.— But it is not an authority to take anything. It is merely to sell the land, and that only, which the levy of the fieri facias placed in custodia lefts, and appropriated to the satisfaction of the debt, and which is identified in the writ. The venditioni exponas, therefore, relates to the fieri facias, and is a warrant to the sheriff to do then, what he might have done under the fieri facias, while it was in force ; and it can have no other effect. Tarkinton v. Alexander, 2 Dev. & Bat. 57. Smith v. Spencer, 3 Ire. 265. The levy of the fieri facias created a specific lien on the estate of the debtor as it was at the teste of the writ and at any time between the teste and the return, which could not be enforced by virtue of the fieri facias, itself, as it might be as to personals, but required a ven-ditioni exponas for that purpose. Still the latter writ gave no more power to sell than the sheriff once had under the fieri facias, if he had exercised it, when he had the fieri facias ; because its object is only to have a sale of what was lawfully taken on the fieri facias, and nothing more. An estate in this land, which accrued after the venditioni exponas sued, is therefore no more subject to it than any other tract of land, purchased out and out in the interim, would be; for, in a legal sense, the one was no more levied on than the other. It is unnecessary, therefore, to enquire into the operation oFthe deeds between the defendant and Gordon, and Bond ; for supposing Gordon to have gained a title thereby, which was liable to execution, it was not liable to the particular execution, under which it was sold. For that reason the judgment must be affirmed.

Per Curiam. Judgment affirmed.