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,
PER CURIAM. Judgment affirmed.
Cited: Carson v. Smart,
(461)