M'Lood v. Pearce, 9 N.C. 110, 2 Hawks 110 (1822)

June 1822 · Supreme Court of North Carolina

9 N.C. 110, 2 Hawks 110

IK EQUITY,

M'Lood v. Pearce and Pearce.

From Johnston.

Chattels, consisting of various specific articles, taken in execution., cannot be sold en masse; the Sheriff should conform, as nearly as possible, to such rules as a prudent man would probably observe in selling his own property for the sake of procuring afair price.

The bill set forth, that one Jesse Pearce, by his will, bequeathed to his wife Elizabeth, during her life, a variety of articles, an- among others, a negro man slave, and after her death > »o ", V son Levy Pearce forever 5 that the. executors permitto*8 Jizabeth Pearce to take possession of the said slnve, "hat in her possession he remained un ti! be was gold by the ilheriíF of Johnston, under execution, km the property oí Levy Pearce. The Sheriff exposed 'so sale the interest of Levy Pearce in the property held by his mother for life, and executed to one Jesse Pearce, who was the purchaser, a bili of sale for the interest of said Levy in the slave. The bill proceeded jo slate that iesse, the put chaser, for a valuable consulcroiion, conveyed his interest in the slave to the Complainant, M’Lcod 5 that Elizabeth, the widow, was still alive, and that after the sale by the Sheriff”, the Defendant. Levy, took Ibe clave info ids possession, and removed him to a distant county, pretending that he had given him to his son, JFlryau Pearce, The bill prayed that the Defendants, Levy and Bryan Pearce, might be compelled to give satisfactory security for the delivery of the slave ho Complainant within a ¡‘CíüK-.iMble period after the death of Eliz. Pearce, and that process might issue to the Sheriff' of the cownly of .Anson, commanding him to take into his possession the slave unless satisfactory security for Isis projection should be given.

The answer of the Defendants admitted the bequest by Jesse Pearce, as staled in the bill, and admitted that Eliz. Pearce had possession of the slave, and alleged that da5 delivered the possession to the Defendant, Levy, Further answering, they said that the Defendant, Levy, in the year 1810, for a lair and valuable consideration, sold to the Defendant, Bryan, the slave, and executed u bill of sale for him. Is; wan not admitted that any sale of the slave was ever made by the Sheriff of Johnston, under executions, against the Defendant, Levy, hut ií any sale was made by the Sheriff, Defendants avemd that the slave war, not pwat at such sale, and that, if made, it was ihuiriuloni and void; nor was it fJmiUied that the Complainant bad purchased of Jessr. jpearco, but it was averred that if such ¡¡ah*, and purchase had been made it was illegal and void, ¡Xioauso the said slave had aot been out of She of one of these Defendants Claiming him as their absolute proper-*y, from a period anterior to the pretended sale by Jesse Pearce to Complainant, Defendants denied all intention ^ removing the slave out of the State.

The Jury, on the several issues submitted to them, found, among others, the following fact, on which the case turned : that all the interest of Levi Pearce in the property of Elizabeth Pearce, left to her for life, was set up by the Sheriff and sold, all together, and bid off by Jesse Pearce,

Henderson, Judge,

delivered the opinion of the Court.

It is unnecessary to decide the question so much discussed at the bar, whether the Defendant, Pearce, had such an interest in the negro as cousd he sold by fieri fiadas, for we aro of opinion that the sale is void, on the ground, that the whole of Defendant’s interest in the property held by hi"» mother for life, was put up by the sheriff and sold at sine túne, and even without pointing out what the property consisted of j such sale, was unfair as tending to lesson the price, to give one bidder who might have a knowledge of the property, an advantage over the rest, and to encourage speculation. The law which constitutes the sheriff the agent of the parties, without their consent, will see that he acts fairly; and it is upon this principle, fhat it is necessary for the sheriff to seize the property and have it ready to deliver to the purchaser, when from its nature, it is capable of seizure. The Court would not be understood to say, tiiat where property consisted of a variety of small articles, each article should be sold separately, or to sell separately where it is usual for the owners to sell in the gross: for instance, hogs in parcels, a flock of geese, or sheep, or other things, where it is customary for the owners of them to sell in such manner. — Nor would a sale be invalidated, ■where there might be difference of opinion as to the com-moa or proper ttiodc? it must appear palpably wrong- — n«> man would adventure here,' unless he had a knowledge which it was not to be supposed others possessed,, or wan a moro speculator, .

Let the. bilí be dismissed wish cost.