Den on the Demise of Smith v. Kelly, 7 N.C. 507, 3 Mur. 507 (1819)

May 1819 · Supreme Court of North Carolina

7 N.C. 507, 3 Mur. 507

Den on the Demise of Benj. Smith v. Hanson Kelly.

From Brunswick.

This Court will award a writ of certiorari. An appeal bond, with a statement of the case made out by the presiding Judge, was filed in this Court, but there was no transcript of the record certified by the Clerk under the seal of the Court in which the appeal had been granted. A diminution of the record being suggested, a certiorari was awarded, such a writ being necessary for the exercise of the powers given to this Court.

The Sheriff returned on a fieri facias, that the Bank of Newbern purchased the lands in question. A. upon the trial of an ejectment for these lands, gave in evidence a resolution of the President and Directors of the Bank, requesting the Sheriff to make the deed to him, and then gave in evidence the deed. Held that this deed is good to pass the title as against the Defendant in the execution, notwithstanding the Sheriff’s return; for the purchaser’s title is not dependant upon any special return the Sheriff may make on the execution. The law permits one person to bid off property at a Sheriff’s sale, and then relinquish his bid to another.

In this case an appeal bond, with the statement of the case made out by the presiding Judge, was filed in this Court, but there was no transcript of the record sent up certified by the Clerk under the seal of the Court. A diminution of the record was suggested, and a motion made that a writ of certiorari be issued to the Clerk of Brunswick-Superior Court of Law. This motion, after much consideration, was allowed; for that the writ moved for was necessary in this instance for the exercise of the powers given to this Court. The Court cannot proceed but upon the whole record, and they had here conclusive proof of an appeal having been prayed for and granted, from there being an appeal bond. The certioraH issued, and the record was certified.

The case was, that Benjamin Smith, the lessor of the Plaintiff, being seised of the lands in question, judgment was recovered against him by the Bank of Newbern, execution issued, and was levied on the lands, and the Sheriff’s return on the execution set forth that the Bank of Newbern had, at the sale of the lands under the execution, become the purchaser. The Sheriff executed a deed to the Defendant, who, upon the trial, gave this deed in evidence, and with it a resolution of the President and Directors of the Bank of Newbern, directing the Sheriff to make the deed to him. The Court charged the Jury that the Plaintiff was entitled to recover; for, although it appeared that the lands had been seised and sold by the Sheriff, yet it did not appear that the legal title to the lands had been divested out of Smith, inasmuch as the Sheriff, by virtue of his office, could convey that title only to such person or persons as the record shewed had purchased the lands. Here he had returned on his execution that the Bank of Newbern had purchased the lands, and the deed had not been made pursuant to this return ; that if the Sheriff executed a deed to the Defendant in consequence of the resolution of the President and Directors of tliC'Bank, he did it not as Sheriff, but as agent, and, before the deed could be operative, it must be shewn there was title in the principal, and that proper authority had been given to the agent to make the deed. The Jury found for the Plaintiff. A rule for a new tidal was obtained, and, it being discharged by the Court, the Defendant appealed. “

Gaston, for the lessor of the Plaintiff.

The return of the Sheriff to the execution is evidence to whom he sold under that execution.^* In this case no other execution is shewn than that under which the Bank of Newbern purchased. The deed to the Defendant is unsupported by any execution. This deed cannot derive support from the execution produced, through the medium of the resolution of the Bank of Newbern. The deed does not state the same transaction; and instead of being explained by it, is contradicted by the execution and resolution. If these give any authority, the. act clono should bo consistent therewith. Naked authorities arc ever to be executed exactly: “ Powers shall not be exceeded, nor their condi- “ tions evaded, but shall be strictly pur,sued in form and “ in substance 5 and all acts done under a special aulho- “ rity not agreeable to it, nor warranted by it, are void.”^*

It was not competent for the Bank of Newbern to extend the power of the Sheriff. His whole authority is given by law, and he can, as Sheriff, do nothing beyond that authority. The right to make a deed for lands sold, is but a necessary incident to the power to sell, and can go no further than the principal power.

Not only the substance, but the mode of executing a public authority is essential: as if a Sheriff behead a man ordered to be banged. This general doctrine seems to need no authorities; but it is supported by Jones v. Gibson, decided in this Court,^† and by cases decided in the Court of Appeals in Virginia.^‡ That the deed must be made to the purchaser, is also shewn by the act of 1799, ch. 28. A little reflection will point out the alarming mischiefs that would arise from any latitude allowed to the Sheriffñn such cases.

* 11 East. 296. 4 Bur. 2129.

* Com. Dig. Poiar. C. 1 Bur. 60, 120.

† N. C. Term Rep. 42.

‡ 1 Mumf, 428. 2 Hen. and Mumf. 341.

TaxIiOR, Chief-Justice,

delivered the opinion of the Court:

The Defendant, in producing a judgment against Smith, an execution, a levy upon property liable thereto, and a deed from the Sheriff, has established a title in' himself; because he has thereby shewn a lawful authority in the Sheriff to sell, and the due exercise thereof.

If a judgment be erroneous, and be afterwards set aside or reversed, the title of an intermediate honajide purchaser at a Sheriff’s sale cannot be affected: nor in an ejectment against a purchaser at a Sheriff’s sale, can the regularity of. an execution be questioned. It would be inconsistent then to make the purchaser’s title dependent upon any special return the Sheriff makes on the execution; more especially when such return is contradicted by his deed, A return is nothing but the Sheriff’s answer relative to that which he is commanded to do by the writ; and is intended to inform the Court of the truth of that alone which it concerns them to know. Third persons ought not to be injured by a return, because the Sheriff has departed from its proper object, and mingled with it irrelevant matter.

It is not necessary to express any opinion as to the effect of a return in point of evidence of any fact stated in it; for however conclusive it may be in that view, it cannot be more so than a fact stated and agreed to by the parties in the case. So that although the return states the Bank to have become the purchaser, yo;t a fact agreed is, that the Sheriff’s deed to the Defendant was made with the consent of the Bank. Taking the facts from the case and the return, the truth is, that the Bank bid off the property, and relinquished the bid to the Defendant, in which there is nothing unlawful. There must be a new trial.