Den Ex. Dem. of Tayloe v. Gaskins

12 N.C. 295 | N.C. | 1827

Lead Opinion

His Honor, Judge Martin, instructed the jury that the sale was good in law. A verdict being returned for the plaintiff, the defendant appealed. The lessors of the plaintiff claim title under a sheriff's sale, made on the day the fi. fa. was returnable; and the only question in the case is whether such a sale is legal. It has been repeatedly decided that the sheriff may lawfully execute an execution on the day it is returnable. As to chattels, if he levy before, he may sell after the return day; and as to land, a sale on the day is unquestionably valid. The (296) general rule is explicitly stated in 1 Salk., 321, and the cases there cited. The case cited for the defendant from 4 Hawks was where the sale took place more than a year after the teste of the execution, and without a venditioni exponas; where the writ has never been returned and the indorsement of the levy made under questionable circumstances, being after the sale. There the execution was dead in law; here it was in full vigor.

The judgment should be affirmed.

---

Addendum

The question made in this case is whether the sheriff can legally sell lands on the first day of the term to which the execution is returnable. Against it is cited Barden v. McKinne, 11 N.C. 279. In that case the sheriff sold about two years after the execution was returnable, and without any new execution. But this question is put at rest by the judgment given in Lanier v. Stone, 8 N.C. 329. It is there stated to be the daily practice, and no inconvenience has been experienced from it. It is often done at the importunity of defendants, to give them the longest possible time to raise the money.

The rule for a new trial must be discharged.

PER CURIAM. Judgment affirmed.