18 S.E. 335 | N.C. | 1893
A jury trial was waived, and the following facts were agreed upon:
"That on 29 October, 1892, one J. A. McDonald, J.P., in McDowell County, rendered judgment in favor of the defendant in this case (the plaintiff in that) against C. J. Alston, the plaintiff in this case, who was defendant in that for the sum of $139. On said judgment execution was issued and levied by A. L. Finley, a constable for Marion township, said county of McDowell, on the piano described in the complaint in this action, and after advertisement, was sold at the courthouse door in the town of Marion, North Carolina. That said piano was levied upon in and left in a private room in the `Hotel Thomas,' about two hundred and fifty yards from the courthouse door. It was left in charge of an agent of the constable, who held the key to said room. That at the time of the sale at the courthouse door as aforesaid the piano was in the said room where levied on. That when the piano was offered for sale, and during the crying of the sale by the officer, he announced the whereabouts of the piano and stated that bidders would be given half an hour to examine same, and that during the half-hour as many as three persons went and examined said piano. That there were about fifty persons at the sale. That no actual delivery of the piano was made by the officer to *339 the purchaser at the time of the sale, but the purchaser obtained (461) the same by claim and delivery against the proprietor of the hotel, who held the same under a claim of storage charge from the officer. The piano was an upright piano of average size."
Upon the facts as agreed, the court was asked to proceed to judgment, and judgment was thereupon rendered in favor of the plaintiff for possession of the piano, and defendant appealed.
The uniform current of decisions in this State, fromBlount v. Mitchell,
The present case is an apt illustration of the justice of the rule. The piano was left in a private room in a hotel, about two hundred and fifty yards from the place of sale; there were about fifty persons at the sale; an adjournment was had for half an hour in order to give all present an opportunity to visit the hotel and examine the piano. As many as three availed themselves of the invitation. It is alleged in the complaint, and not denied in the answer, that the property sold for $32.50, the said *340 sum being a small part of its actual value, although it is denied in the answer that the smallness of the sum bid was occasioned by the absence from the place of sale of the article sold. And it further appears that the purchaser did not obtain possession from the sheriff, but by means of a proceedings in claim and delivery. Who can tell that the apprehension of trouble in obtaining possession did not deter persons present from bidding at the sale?
The law, so firmly established by repeated adjudications, is in no way weakened by the case of Wormell v. Nason,
Affirmed.
Cited: Barbee v. Scoggins,
(463)