20 N.C. 34 | N.C. | 1838
After stating the case proceeded as follows : The claims of the two venditionis purporting to be founded on levies made on the 14th of November will be first considered. — Many objections have been made to the regularity of these proceedings ; two of which apply to both the venditionis, and are so decisively fatal as to render it unnecessary to consider of the others.
Executions on Justice’s judgments command the officer to make the money recovered out of the goods and chattels of the party cost, and for want of goods and chattels to levy on his lands and tenements, and make return of such levy to the justice. It is required that this levy shall set forth “ the lands and tenements levied on, where situate,' on what water course, and whose lands adjoining.” It is the duty of the justice to whom such return is made, to return the execution to the County Court with all the papers on which the judgment shall have been rendered, and the land so levied upon or so much thereof as shall be sufficient to satisfy the judgment, shall by order of the court, be sold by the Sheriff, and the clerk shall record the whole of the papers and the proceedings had before the justice, (see 1 Rev. Stat. c. 62 sec. 16). The plaintiff may also apply to the court to enter up a judgment in court for the amount of his recovery before the justice and the costs, and on such judgment being rendered, if a sale of the lands so levied on shall
There is another view of the subject which, on account of the interest of the question that it presents, we deem it our duty to notice, although it is not essential to the determination of the case. The act of 1828, c. 9, sec. 6, (1 Rev. stat. c. 45, sec. 19,) requires, whenever a justice’s execution shall be levied on land that the defendant shall have five days notice in writing of the levy before any order of sale can be made, with a proviso in case of concealment or removal from the county, or a residence in another state, that a publication in some newspaper may, by order of court 'be substituted for such actual notice in writing. It is indispensable, we think, to the effectual execution of this legislative requirement to hold, that an order of sale, made without notice — unless the defendant appear and waive notice — is altogether null. The sheriff may not be a tress-passer for selling under such an order, because he is always justified in obeying a writ issued to him by a court possessing jurisdiction over the subject matter on which it acts ; but the sale transfers no title to the purchaser- — -the thing sold remains the property of the defendant — and is liable to be seized, notwithstanding such sale upon a generalj£ fa. of one of the defendant’s creditors. The -notice of the levy required by the act of 1828 was not given, and could not be given in time to support the order of November Term, and the record does not shew, that Sauls appeared at that term and waived notice.
Our next enquiry with respect to the executions in favor of Richai’d Smith is whether they cannot claim to be satisfied pari passu and rateably with the fi. fa. from Court in favor of A. Bordeu & Co. We think not. When a justice’s execution is x-eturned to court, it is in the power of the plaintiff, supposing the levy to have been sufficiently special,
_ If we are correct in the conclusion that the fi. fa. from the Court has priority over these two executions, there is no difficulty in assigning to it a preference over the six other executions. These were issued on the 16th of November, the day of the teste of the fi. fa. from the Court, and were • on that day levied upon “ land” without any further specification or description. No judgment nor order of Court is-shewn, nor notice to the defendant nor appearance by him,
It is the opinion of this Court, that the judgment of the Superior Court of Wayne is erroneous, and that the whole , of the money brought into Court by the sheriff, ought to be applied towards the satisfaction of the judgment in favour of the plaintiffs.
Pek Curiam. Judgment reversed.