Den on Demise of Lyerly v. Wheeler

33 N.C. 288 | N.C. | 1850

Two questions are presented by this case to the consideration of the Court. The plaintiff claims title under a sheriff's deed, and to establish it offered in evidence a copy of a decree in equity made in the Supreme Court in his favor against the defendant. The introduction of this evidence was opposed by the defendant, for the reason that copies of the bill and answer filed in the case ought also to be in evidence. The court admitted the evidence. In this, we think, there was error. The opinion of the court below was endeavored (289) to be sustained here upon the act of 1848, ch. 53, passed, as it declares, "to secure the title of purchasers of land sold under execution." It provides that "when lands had been sold or might be hereafter sold by virtue of any writ of execution, etc., no variance between the execution and the judgment whereon it issued, etc., shall invalidate the title of the purchaser." In Rutherford v. Raburn, 32 N.C. 148, the Court decided that the effect of that act is to restore the common law on that subject. By the common law the execution not only justified the sheriff in acting under it, but the purchaser at the sale, in an action against the defendant in the execution, or one coming in under him after the lien attached, need not show the judgment. A contrary rule was established in this State byHamilton v. Adams, 6 N.C. 161, and was considered the law until the passage of the act above mentioned. In Rutherford v.Raburn, however, the Court restrained the operation of the act to cases where the purchaser is not the plaintiff in the execution. When he is, he must show a judgment, not to show that there is no variance between it and the execution, but that the plaintiff had a just claim against the defendant, and it had been ascertained by a judgment; and to this Lake v. Billers, 1 Lord Raymond, is cited. If it was necessary, then, for the plaintiff to produce a copy of the decree in equity, which we hold to be the law in such a case, the copy of the decree alone will not answer. To make it evidence it was necessary for him to have the bill and answer and so much of the pleadings and orders as would show that the decree was pronounced in a cause properly constituted between the parties. Williamson v. Bedford, 32 N.C. 198. Another question was presented by the case, the decision of which is not necessary to the disposition of the (290) case at present, yet, as it must be presented to another jury, and may again arise, to save time and trouble, we proceed to give our opinion upon it. The defendant offered to prove that, before the decree offered in evidence was obtained, he conveyed the land in dispute to one Locke in trust to secure his indorsers to a bank debt which he owed, and that the said trustee on 23 November, 1846, had sold the premises at auction to one Nathan Chaffin, to whom he made a conveyance, and who leased the land to him, and under whom he now held it. This evidence was rejected by the court. In an ejectment brought by a purchaser at a sheriff's sale against the defendant in the execution, the latter, while still in possession, cannot resist upon the ground that he, the defendant, has a better title.

The action of ejectment is to recover possession, and whatever possession the defendant in the execution had, the purchaser acquires by the sale and is entitled to recover. Thompson v. Hodges, 7 N.C. 546;Islay v. Stewart, 20 N.C. 297. Our attention in the argument was called to Jordan v. Marsh, 31 N.C. 234. This opinion is not in conflict with it. It was decided on its own peculiar features. The land had been sold under executions against the defendant for different persons, to one of whom he was considered as having surrendered the possession, and he took a new lease after the last sale by the sheriff.

PER CURIAM. Judgment reversed, and venire de novo.

Cited: Freeman v. Heath, 35 N.C. 500; Stallings v. Gulley, 48 N.C. 346;Lee v. Eure, 82 N.C. 431; Swift v. Dixon, 131 N.C. 45; Evans v.Alridge, 133 N.C. 380.

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