32 N.C. 203 | N.C. | 1849
By the general law the sheriff of Burke, if he had authority to sell at all, was obliged to sell at the courthouse of his own county; and he could not, therefore, go to the *155 courthouse of the new county for that purpose. Rev. St., ch. 45, sec. 10. The first question turns, then, upon the power and duty of the sheriff of Burke to make the sale. We think very clearly that he was the person, under the acts establishing McDowell, 1842, chs. 10 and 11. That county was constituted of parts of Rutherford and Burke; and by section 8 of ch. 11 it is enacted that all process issued from the Superior Courts of Burke and Rutherford against the citizens of McDowell, until a sheriff shall have been elected for McDowell, shall be executed by the sheriff of Burke or Rutherford; and that, after that time, such process shall be directed to the sheriff of McDowell and be executed by him. And section 8 enacts "that nothing in this act shall be construed so as to prohibit the sheriffs of Burke and Rutherford from collecting such moneys as are due or may become due on any judgment before the (206) first court for McDowell." From those provisions it is plain the Legislature did not mean that a creditor should be defeated or delayed of execution for his debt by the division of the county. On the contrary, executions taken out from the courts of Burke were to be directed to the sheriff of Burke until there should be a county court and sheriff for McDowell; and, of course, the sheriff to whom the execution was by law to be directed, and was directed, is the proper officer to execute it; and it is the sole purpose of section 8 to provide against a contrary construction in respect to the officers mentioned in it.
The Court agrees also to the instructions given to the jury under the evidence. It is true that the exception does not set forth the evidence in detail, and therefore we cannot affirm positively what it was. But it is stated, in general terms, that it tended to prove an agreement between the father and sons, before the sale, that the land should be sold by the sheriff and the sons should buy it and take a conveyance, to the double intent that the father should still enjoy it and that his other creditors should be defrauded; and, under the verdict of the jury, it must be taken that the evidence did establish such an agreement and upon those intents. Indeed, it was admitted at the bar that the facts upon the trial were clearly against the honesty of the transaction between the father and sons, if, upon the supposition of the sons paying their own money, in point of law, there could be a fraud which would avoid the sheriff's deed at law. We do not think that the plaintiff's case necessarily depends on avoiding the deed to the defendants by reason of the fraud in their purchase. For, if they bought in trust for their father, whether bona fide or not, the land would be *156
liable under the act of 1812 to execution for his debts, unless it was a part of the agreement, and that bona fide and (207) openly, that the sons should take the sheriff's deed as a security for the sum paid by them for the land, or some other debt. No doubt such a transaction in good faith would be supported, as was mentioned in Dobson v. Erwin,
PER CURIAM. Judgment affirmed.
Cited: Jimmerson v. Duncan,