Den on Demise of Murrell v. Roberts

33 N.C. 424 | N.C. | 1850

The lessor of the plaintiff was seized of the premises in fee on 1 January, 1843, and then leased them to one John Smith for the term of six years. The plaintiff gave evidence that Smith entered and executed a deed in fee in 1846 to one Dudley, under whom the defendant was in possession at the commencement of this suit in April, 1849.

On the part of the defendant evidence was then offered that one Sullivan obtained a judgment in debt against the lessor of the plaintiff and another person, on which a fieri facias was issued, by virtue of which the premises were sold in 1846 by the sheriff, and conveyed in fee to the said Smith, and that he afterwards conveyed to Dudley. This evidence was objected to on the part of the plaintiff, upon the ground that Smith was estopped to deny the lessor's title or withhold the possession from him at the expiration of the term, and that the defendant, who claimed under Smith, was likewise so estopped. But the court received the evidence, and thereon instructed (425) the jury that Smith had a right to purchase the premises at the sale by the sheriff, and that the title thereby derived might be set up against the plaintiff as a bar in this action.

On the part of the plaintiff further evidence was then offered, that while the sheriff had the fieri facias in his hands and before the sale of the premises, the whole sum due thereon was paid to the sheriff by one of the defendants therein, in satisfaction thereof. But, upon objection on the part of the defendant, the court refused to receive the evidence, upon the ground that it was not competent thus to impeach the title of the purchaser at the sheriff's sale.

After a verdict and judgment against the plaintiff, he appealed. There is no error on the first point. The defendant did not attempt to set up a title in derogation of that of the lessor of the plaintiff at the time of his lease to Smith. On the contrary, he acted in affirmance of that title by showing the subsequent acquisition of it by Smith, so that both the term and the reversion became united in him. If the lessor of the plaintiff had, by his deed, assigned the reversion to Smith, the title thus derived might be set up as a bar to this action. It must be the same under the sale by the sheriff; for a reversion in fee, after a term for years, is the subject of execution, and the sheriff's deed is as effectual to pass it as that of the reversioner. On the other point, however, the Court holds that there is error. Payment to the sheriff discharges the execution. If the sheriff have a ca. sa. and, after payment by the debtor, within his knowledge, he (the sheriff) arrest him, (426) it is undoubtedly false imprisonment. It must also be illegal to act on a fi. fa. after satisfaction to the sheriff, and he is a trespasser if he seize goods afterwards. Lefans v. Mooniscun, 1 Hob., 685. As was said in the case cited at the bar, the execution became therebyfunctus officio. Hammett v. Wyman, 9 Mass. 138. It follows that a subsequent sale under it is void, and it was so held in that action, which was trespass by the purchaser at that sale for a second taking of the goods, upon another execution against the same defendant. If it were not so, the sheriff might, upon another execution for a trifling sum, ruin any person, since he might raise the money over and over again by sale after sale. For there is no difference between satisfaction by a payment by the debtor in money and one by the sale of his property. After satisfaction to the sheriff in either way, he cannot lawfully seize and sell property, more than he could without having had an execution at all.

PER CURIAM. Judgment reversed, and venire de novo.

Cited: Smith v. Fore, 46 N.C. 490; Brooks v. Gibbs, 47 N.C. 327;Halcombe v. Loudermilk, 48 N.C. 492; Taylor v. Newkirk, 51 N.C. 325; S.v. Queen, 66 N.C. 617; Wall v. Fairly, 77 N.C. 107; Motz v. Stowe,83 N.C. 438; Heptinstall v. Medlin, ib., 18.

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