Doe on Demise of McLane v. Moore, 51 N.C. 520, 6 Jones 520 (1859)

Aug. 1859 · Supreme Court of North Carolina
51 N.C. 520, 6 Jones 520

Doe on the demise of ELIZABETH McLANE v. RICHARD MOORE.

Where an estate was limited to one for life, remainder to a feme, who took husband during the existence of the life estate, it was Held that the latter was not barred by the lapse, during the continuance of such coverture, of more than seven years of adverse possession, she having brought suit within the time allowed after discoverture.

Where a constable levied an attachment on real estate, and the same after judgment of condemnation by a justice having jurisdiction of the amount., was returned to Court, where an order of sale was made, it was Held that an irregularity as to the form of the process in respect to the day of its return was. cured, and that advertisement was to be presumed, upon the principle omnia prcesv/muniur, &c.

AotioN of EJECTMENT, tried before Manly, J., at the Spring Term, 1859, of Polk Superior Court.

The plaintiff deduced title:

1. Through a grant from Willis Scroggins:

2. Legal proceedings by attachment against Scroggins, and sale of the land with a sheriff’s deed to John Hughes.

3. The will of John Hughes, devising the premises to his wife for life, remainder to the lessor-of the plaintiff.

The proceedings in attachment were as follows, that is to say:

1st. An affidavit by John Hughes, dated 12th of September, 1799, alleging that Willis Scroggins is indebted to him in six pounds three shillings and sixpence, and that he has good reason to believe that the said Scroggins hath absconded.— Signed by the affiant, and witnessed by “Samuel Young, J. P.”

2nd. A bond with sureties payable to Willis Scroggins in twelve pounds seven shillings, conditioned “ that John Hughes juosecute his suit agreeable to law, in case of an attachment against said Scroggins,” dated 12th September, 1799.

3rd. An attachment in the following words:

“State of North Carolina, Rutherford county. Whereas, John Hughes personally appeared before me, Samuel Young, Esq., one of the justices of said county, and *521made -oath that Willis Scroggins hath removed, or so absconded that the ordinary process of law cannot be served on him, and that he is justly indebted to him in six pounds 'three shillings and sixpence, and detaineth payment, this is therefore, to require you to attach so much of the goods and chattels, lands and tenements of the said Willis Scroggins, pleviable by security, sufficient to satisfy the said debt and cost, and make return how you have executed this writ. Given under my hand, this 12th of September, 1799.

(Signed,) Samuel Young, [Seal.] On which was endorsed as follows:

“John Hughes, vs. Willis Scroggins. 1 Attachment. 12th of September.

Levied on one hundred acres of land on Green River, joining James Redings above, and Miller below — no personal property to be found.

Cost 5s. James Scott, D. Sh’ff.”

The plaintiff proves his account to six pounds 3-6, and 5s. cost. Judgment before me, this 1st day of October, 1799.

Samuel Young, J. P.”

4lh. The following writ:

State of North Carolina.

To the Sheriff of Rutherford county' — greeting:

Whereas, James Scott, as constable,'returned into court .a. judgment at the instance of John Hughes, against Willis Scroggins, for the sum of six pounds three shillings and sixpence and cost, taken before Samuel Young, Esq., in the following manner, viz: 12th September, 1799. Levied upon 100 acres of land on Green River, joining James Redings above and Miller below; no personal property to be found, and the same being made returnable to court for orders of sale, ordered, therefore, that you, the said sheriff, do sell the said lands, or so much thereof, as shall be of sufficient (value) to satisfy the said debt with cost, and make- duo return thereof, to our next court, how you have executed this order.

*522"Witness, R. T. Lewis, clerk of our said court, at office, the second noonday in October, 1799. R. T. Lewis, cl’k

On which last paper is endorsed as follows:

“John Hughes, ) Order of sale to January, 1800. vs. V

Willis Scroggins. ) 10th of January, 1800, sold at public auction, the land within, agreeable to the order, to John Hughes, the plaintiff, for three pounds. Ho money paid.

James Scott, L>. Sh’ff.

The foregoing were original papers, filed in the office of the clerk of the Superior Court, of Polk- county.

The following is duly certified from the minutes of the county court of Rutheiford:

“ State of North Carolina.

County Court of Pleas and Quarter Sessions begun and held for the county of Rutherford, at the court-house in Ruth-erfordton, on the second monday in October, being the 14th of said month, in the year of our Lord, 1799.

Present — Stephen Willis, j Charles Wilkins, -p Charles Lewis, íEs(Imres-D. Dickey, j

After the usual proclamation being made, the court was opened accordingly, at which time the following record, ss:

James Scott, as constable, returned into court a judgment at the instance of John Hughes against Willis Scroggins, for the sum of £6. 3, 6, and 5s cost, before Samuel Young, Esq., in the following manner, viz: 12th September. Levied upon 100 acres of land on Green River, joining James Redings above, and Miller below — no personal property to be found, by James Scott, D. Sh’ff.

Ordered, therefore, that the same be sold, or so much thereof, as shall be of value sufficient to satisfy the said debt with costs, agreeable to an act of assembly, &c.”

And the following is duly certified by the clerk of the county court of Rutherford, as being taken from the “ Execution Docket.”

*523“January 4tb, 1800.

John Hughes, vs.

Willis Scroggins.

order for sale

Judg’t £6, 3, 6.

January 10th, 1800, sold at public auction, the land within, agreeable to this order, to John Hughes, for three pounds. J. Scott.”

The question was, whether these proceedings, thus certified, were sufficient to uphold the sheriff’s deed, founded on the said sale. The Court pronounced in favor of the sufficiency of the evidence furnished, with an understanding that the exception might be further considered of by the Court, and if allowed, the plaintiff should submit to a non-suit.

The trial then proceeded. The defendant showed a deed from Richard Lewis and James Early, to Ransom Barnes, dated 19th September, 1818; then a deed from Barnes to Green-berry Griffin, dated 14th September, 1820; then, a deed from Griffin to John Moore, the father of the defendant, in 1828.

And it was proved that Barnes took possession in 1818, and he and those claiming under him, had occupied the land ever since.

In reply to this proof, the plaintiff showed that she became covert in 1802, and continued so, until 1856, one year before the suit was brought, and that her mother, the tenant for life, under the will of John Hughes, died in 1840. The Court was of opinion with the plaintiff upon the question of the statute of limitations, and, on instructions to that effect, the jury found a verdict for the plaintiff. Afterwards, on consideration of the exception to the proceeding by attachment, being of opinion with the defendant, according to the agreement at the trial, the verdict was set aside, and a nonsuit entered. The plaintiff appealed to this Court.

Shvpjp, for the plaintiff.

Dickson, for the defendant.

Pearson. C. J.

We agree with his Honor in respect of the effect of the coverture of the feme lessor, but we differ with him in respect to the proceedings in attachment. The fact, *524that upon the return of the judgment and proceedings before the justice, the county court gave judgment, i. e. made an “order of sale,” cures all mere irregularity, and supplies a ground of presumption that every thing was rightly done, unless such presumption is rebutted by something appearing in the face of the proceedings sufficient to show that the case had never been properly constituted before a tribunal having competent jurisdiction; so as to make the proceedings “null and of no effect.” Skinner v. Moore, 2 Dev. and Bat. Rep. 138; 10 Peters’ 469; 7 Cranch 420; Clark v. Quinn, 5 Ired. Rep. 175.

This case was properly constituted in the County Court by the return of the levy, and of the judgment given by the justice of the peace for £6. 3. 6., which was within his jurisdiction. The omission of the magistrate to set out in the process a day of return, was a mere irregularity, cured by the fact that it was returned in the time required bylaw; and the fact that due advertisement had been made, falls under the rule, omnia jprmumwitur rite esse acta. The judgment of nonsuit must be reversed, and according to the agreement at the trial, judgment must be rendered for the plaintiff.

PeR Curiam, Judgment reversed.