7 N.C. 250 | N.C. | 1819
The lessor of the plaintiff then proved, that during all these proceedings he was a minor, under the age of twenty-one years, and had no guardian. The record shewed, that to the scire facias he appeared and made defence by attorney, and not by *194 guardian; that the scire facias issued against him, and was served on him, as a person of full age.
On this statement of facts, the presiding Judge directed the Jury to find for the Defendant. A rule for a new trial was obtained on the ground of misdirection by the Court. This rule was discharged, and the lessor of the Plaintiff appealed. Whatever irregularity there may be in the judgment on which the execution issued, it was the act of a Court of competent jurisdiction, and was unreversed and in force, when the sale was made to the Defendant. The execution gave the Sheriff full authority to sell, and though the judgment should be afterwards reversed or set aside, yet the title of an intermediate purchaser at the Sheriff's sale, (252) cannot be prejudiced. "The sale shall stand, otherwise none will buy any thing upon execution." Manning'scase, 8 Co. The same principle applies to an error in the execution, the regularity of which, it has been held, could not be questioned in an action of ejectment against a purchaser under a Sheriff's sale. And an execution issuing after a year and a day, without a revival of the judgment by scire facias, is only voidable at the instance of the party against whom it issues. 8 John, 361, 13 Id. 97. If the writ be not void, however irregular it may be, the purchaser will gain a title under the Sheriff's sale. 1 Ves. 195. 1 Maule Selwyn, 425. The law on this point is considered to be settled; and the Court are of opinion, that the instructions of the Judge to the Jury were entirely correct. The rule for a new trial must be discharged.
Cited: Skinner v. Moore,