28 N.C. 433 | N.C. | 1846
Ejectment for a tract of land lying in Pasquotank County. Spencer M. Meeds was seized of the premises, and by deed dated 2 September, 1842, conveyed them to the defendant, who entered into possession. At that time there was a judgment against Meeds, and a fieri facias thereon, under which the sheriff of Pasquotank sold and conveyed the premises to the lessor of the plaintiff. Both Meeds and the judgment creditor resided in Pasquotank, and the sheriff's sale was made at the residence of Meeds, from which the premises were 2 miles distant.
In order to sustain the sale, the plaintiff relied on an act of Assembly passed in 1823, ch. 74, entitled "An act to repeal an act passed in 1822, entitled `An act directing the time and place of selling lands and (434) slaves under execution,'" so far as relates to certain counties therein named, whereby it is enacted: "That the above recited act be and the same is hereby repealed so far as respects the counties of Perquimans, Pasquotank, etc.: Provided, that the repeal shall not affect cases where either of the parties in the execution is not a resident of the *311 county so exempted from the act aforesaid; and Provided further, that nothing in this act shall be so construed as to revive either of the acts of 1820 or 1821, authorizing the sale of land and slaves at the courthouses of said counties above named."
For the defendant it was insisted that the act of 1823 was repealed by that of 1836, Rev. Stat., ch. 2, sec. 2, and, therefore, that the sheriff's sale was void because it was not made on the premises. Both of those positions were denied on the part of the plaintiff; and it was thereupon agreed by the parties that if, in the opinion of the court, the sale might lawfully have been made as it was in this case, there should be a verdict and judgment for the plaintiff; if otherwise, then the verdict and judgment should be for the defendant. The court held that the act of 1823 was not repealed, and that the sale to the lessor of the plaintiff was valid, and according to the agreement of the parties there was a verdict entered for the plaintiff; and from the judgment thereon the defendant appealed. The point is as to the legality of the sheriff's sale, in respect of the place at which it was made. To the clearer understanding of the subject it seems necessary to advert to the several statutes which provide for the sale of land under execution in the State generally, and also in this particular county of Pasquotank. By the act of 1777 executions were made to run against land as well as (435) goods. But the only regulation it contains respecting the sale of land is to require it to be advertised at least forty days; and in the subsequent act of 1794 it is provided at what hours of the day sales under execution shall commence. Thus stood the law until 1820, when an act passed, chapter 32, which directs all sales to be made at the courthouse of the respective counties on the last Thursday of every month. By an act of the succeeding year, 1821, ch. 19, it was enacted that sales shall be at the courthouse, and, instead of the last Thursday of the month, that they may be on any Monday in any week. Finally, the general law upon this subject was settled by the act of 1822, ch. 25, which alters the time to the same Monday in the month as that on which the county court is held in the several counties, and again enacts that the courthouse shall be the place of sale; and it concludes with a clause repealing all laws within its meaning and purview. If that law governed the present case, of course, the sale under which the plaintiff claims would be illegal and void. But in the next year the act, 1823, ch. 74, passed, which is set out in the case; and the object and effect of it was, as to the counties mentioned in it, to restore the law to the state *312 in which it was before the act of 1822. And, as it is a rule of construction that a statute, repealed by another, is revived by a repeal of the repealing statute, the act of 1823 goes on further, in a proviso, that it shall not be so construed as to revive the two acts of 1821 and 1820 which required the sale of land to be at the courthouse. It is thus seen that the act of 1823 clearly repeals the three acts of the three preceding years, as far as concerns Pasquotank and the other counties mentioned in it. Consequently, the sale of land there is regulated by the acts of '94 and '77, and the common law — unless, indeed, the act of 1823 is not itself in force, as contended on the part of the defendant. But upon that point the opinion of the Court is against the defendant. It (436) is true that the second section of the Revised Statutes, ch. 1, repeals all the acts passed before the Session of 1836, and not there reenacted. But that is with the several provisos and exceptions contained in the six succeeding sections. among which is the following in section 8: "That no act of a private or local nature, and no act granting privileges or imposing duties in any particular county inconsistent with the general provisions of law, shall be construed to be thereby repealed." It is very clear that the act of 1823 is within that saving as intended by the Legislature. It had been printed and published among the laws passed that year, as a private act; and, besides, it is plainly local in its nature, being confined to particular counties and with provisions in respect to them different from the general or public law. Then, as the acts of '94 and '77 say nothing as to the place of sale, this controversy depends upon the inquiry whether at common law the sale of land under afieri facias must be on the land itself or be made bona fide at any other fit place in the county.
It is certain, as we all know, that before the act of 1820 the constant course was for the sheriff to sell at the places and days which he judged best suited the convenience and interest of the parties. Sometimes sales were made on the premises. But often they were not. If there were several tracts of land to be sold, and the sale began on one of them, it proceeded there as to all, although the others might be in a different part of the county. Indeed, the most usual place of sale was the courthouse, and during term-time, and especially if the land was of much value, because generally that afforded the longest time to the debtor to raise the money without selling his property, and if the sale became unavoidable, it would be made when there would probable be the largest assemblage of bidders. Lanier v. Stone,
PER CURIAM. Affirmed.
Cited: Humphries v. Baxter, post, 438; Bailey v. Morgan,
