Den on Demise of Badham v. Cox, 33 N.C. 456

Den on Demise of Badham v. Cox

33 N.C. 456 | N.C. | 1850

This was an action of ejectment.

Upon the trial the case appeared to be as follows: The defendant, Cox, was seized in fee of the premises, being a wharf and store in the town of Edenton, and on 1 January, 1843, contracted for the sale of them to one George Bordon, in fee, for *325 the price of $2,500, payable as follows: $1,800 on 1 May, 1848, and $700 on 1 January, 1849; and a conveyance was to be made when the purchase money with the interest thereon should be fully paid, but, in the meanwhile, Gordon was to be (457) let into possession. Articles were entered into accordingly, and Gordon took possession and paid the first installment, but no part of the second. In March, 1849, judgments were obtained before justices of the peace by several of Gordon's creditors, and executions were issued thereon, and levied on the premises and returned to the County Court, and in August following orders of sale were made, and then writsvenditioni exponas were sued out, under which the sheriff sold the premises to the lessors of the plaintiff on 10 November, 1849, and made them a deed. On 6 May, 1849, Gordon made to Samuel T. Bond an assignment of all his interest "in the premises, in trust to sell the same and out of the proceeds pay a debt from him to Haynes and Goodridge"; thereafter Gordon continued in possession until 8 October, 1849, on which day Bond, in conformity with the assignment to him, made a contract for the sale of a part of the premises to the defendant, and Gordon went out, and he and Bond let the defendant into possession of that part of the premises which he (Cox) purchased back, and which is in dispute in this action. On 6 November, 1849, Cox executed to Gordon a deed in the following terms:

"Know all men by these presents, that I, John Cox, of, etc., agreeable to a memorandum of agreement entered into with George Gordon, of, etc., on 1 January, 1848, to make title to a certain portion of wharf property known as, etc., on the payment of, etc.: Now, therefore, in consideration of the sum of $2,650 being paid before the delivering of these presents, and to enable Haynes and Goodridge to make sale and pay me, as also to convey to me, the said Cox, such portions of said property as I may purchase at said trustee's sale, as also agreed to by the said George Gordon, I hereby convey the following property in fee simple to him, the said George, and his heirs and assigns forever, that is to say, the wharf, etc. Which said property hereby conveyed I do warrant, etc., to the said (458) George Gordon, and his heirs, against the lawful claim of all persons." On the same day Bond and Gordon executed to Cox a deed for the part of the premises claimed by the defendant in this suit, purporting to convey the same in fee. Thereupon the counsel for the plaintiff insisted that Gordon had, under the original contract between him and the defendant, such an interest as might be levied on under the fierifacias, and be sold under the venditioni exponas, or that, by the deed *326 from the defendant of 5 November, 1849, Gordon acquired such an interest as was liable to be sold under the venditioni exponas and passed by the sheriff's sale of 10 November, 1849, and his deed to the lessors of the plaintiff; and that the defendant was estopped to deny their title. But the court held that the plaintiff could not recover, and after a verdict and judgment against him, he appealed. No title passed by the sheriff's sale. When the vendor retains the title as a security for the purchase money, and a balance remains due, the vendee has not such a trust as is made liable to execution by section 1 of the act of 1812, so as to divest the legal title of the vendor. That was settled as soon as the act passed. Consequently the constable's levy was ineffectual at the time it was made and returned. It follows, likewise, that the sale under the venditioni exponas was equally inoperative, notwithstanding the debtor may have acquired the legal title while the sheriff had the latter writ in his hands. The case may be considered as if the fieri facias had been issued from a court of record and directed to the sheriff. The debtor's interest in the premises could not (459) have been sold or taken under it at any time before its return, inasmuch as it was not subject to execution; and, if there had been a sale under the fieri facias, the subsequently acquired legal estate would have been unaffected by it, because the law only sells estates under its process, and not the chances of an estoppel.Flynn v. Williams, 23 N.C. 509; Gentry v. Wagstaff, 14 N.C. 270. It must be the same with the sale under the venditioni exponas, since that was founded upon the levy, which was made and returned when the debtor had no estate. That results from the effects of a fieri facias on land and from the peculiarity of the venditioni exponas. The levy of the fieri facias does not vest either the title or the possession of land in the sheriff, but merely confers on him the power to sell the debtor's estate or interest, such as it is, while he has the writ in his hands before the return day. Barden v. McKinnie, 11 N.C. 279. If a title accrue to the debtor after the levy, but while the fi. fa. is in force, no doubt it may be sold, and will pass by the sale of the land, simply, without special reference to the new title; for it is within the mandate of the writ under which the sale is made. That may be true, also, when a sale was not made on the fi. fa., but on a venditioni exponas, but a *327 title accrued to the debtor between the levy and the return of the fi. fa. But it seems clear that the venditioni exponas does not attach to an estate acquired by the debtor after the return of the fieri facias. In respect to chattels, that writ confers no authority to take or even sell them, but is merely to compel the sale of property before vested in the sheriff and in his possession, which he might sell without the writ. It is, indeed, otherwise in respect to realty. There the office of the writ is to confer an authority on the sheriff, as well as to compel him to sell. But it is not an authority to take anything. It is merely to sell the land, and that only, which the levy of the fieri facias placed in custodia legis and appropriated to the satisfaction of the debt, and which is identified in the writ. The venditioni (460)exponas, therefore, relates to the fieri facias, and is a warrant to the sheriff to do then what he might have done under the fieri facias while it was in force; and it can have no other effect. Tarkinton v. Alexander, 19 N.C. 87; Smith v. Spencer, 25 N.C. 265. The levy of the fieri facias created a specific lien on the estate of the debtor as it was at the teste of the writ and at any time between the teste and the return, which could not be enforced by virtue of the fierifacias itself, as it might be as to personals, but required a venditioniexponas for that purpose. Still the latter writ gave no more power to sell than the sheriff once had under the fieri facias, if he had exercised it when he had the fieri facias; because its object is only to have a sale of what was lawfully taken on the fieri facias, and nothing more. An estate in this land which accrued after the venditioni exponas sued is, therefore, no more subject to it than any other tract of land, purchased out and out in the interim, would be; for, in a legal sense, the one was no more levied on than the other. It is unnecessary, therefore, to inquire into the operation of the deeds between the defendant and Gordon and Bond; for, supposing Gordon to have gained a title thereby, which was liable to execution, it was not liable to the particular execution under which it was sold. For that reason the judgment must be affirmed.

PER CURIAM. Judgment affirmed.

Cited: Carson v. Smart, 34 N.C. 372; Walton v. Jordan, 65 N.C. 172;Moore v. Byers, ib., 243; Swann v. Myers, 75 N.C. 594; Peebles v. Pate,90 N.C. 355; Gentry v. Callahan, 98 N.C. 449, 50. *328

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