| N.C. | Jun 5, 1826
George Bradbury died in October, 1820, leaving a will, of which Barden, the lessor of the plaintiff, is executor; the will was proved at November Term, 1820, of Wayne County Court, and Barden then qualified as executor.
The sheriff who sold under Bradbury's execution was called as a witness for plaintiff, and stated that between May and August Terms, 1820, he levied the execution on the land in dispute, and also on McKinne's negroes; that he did not then give any notice of said levy, nor indorse it on the execution until after February, 1821; that in February, 1821, he sold the negroes levied on, which did not fully satisfy the execution; that the lessor of the plaintiff, as the executor of said (280) George Bradbury, soon afterwards (but when the witness could not remember) directed him to sell the land, and that in pursuance of such instructions he advertised the land, and sold it on 31 January, 1822. He further said that between February, 1821, and January, 1822, he had advertised and offered the land for sale, but did not sell for want of bidders.
Upon these facts the court instructed the jury that the sale of the land to the lessor of the plaintiff on 31 January, 1822, upon the fi. fa. issued in May, 1820, and after the death of George Bradbury in October, 1820, was without lawful authority in the sheriff, and, therefore, void, notwithstanding any levy thereon made between May and August, 1820.
There was a verdict for the defendants, new trial refused, judgment, and appeal. It is not necessary to the decision of this case to express any opinion as to the levy upon the land; if it were, I should think that the sufficiency of the levy might well be doubted. How or in what manner it was performed by the sheriff, whether by going to the land and making a declaration of it or by a silent and mental volition, does not appear; but it does appear that no notice was given of it, and that the indorsement upon the execution was made after the writ was dead *124 in law. It would lead to endless abuses if a sheriff could make a levy simply by an indorsement on the execution after its force was spent and the lien arising from the teste had ceased to exist or had yielded its priority to other executions of later teste, issued perhaps in consequence of its being returned without any indorsement, and there being no alias ordered. It would be hazardous to purchasers, and inconvenient (281) in general, if a sheriff were allowed to continue the lien of the teste by an ex post facto indorsement of a levy, where the law permits it to be continued only by alias executions or the revival of the judgment; for if the sheriff, retaining the writ in his own possession, may do so after its force is spent, I can see no reason why he might not be permitted by the court to do it upon an execution returned without a levy and at a period when the writ had no longer any force.
But admitting that the levy was unexceptionable, the sale to the plaintiff was void for want of lawful authority in the sheriff to sell. It was not merely a purchase under an irregular execution, for that would not impeach the plaintiff's title, but a purchase without any execution. The general rule is that all process must be served before the return day; and as to chattels, if the levy be made in due time, the sheriff may complete the same by sale after the return day. But the reason of this is that the seizure of chattels vests a special property in the sheriff, who may take them into his own possession for the purpose of the execution. From the essential difference in the nature of the property, the operation of afi. fa. issued against land must be different. It gives the sheriff no authority to take possession of the land and turn the defendant out. He cannot break open an outer door to execute a fi. fa. against chattels; how, then, upon the same writ, can he give possession of a house? A term for years may be sold on a fi. fa. or a moiety of land delivered on anelegit, yet in neither case can the sheriff give possession. The purchaser and the creditor must obtain possession by ejectment. I apprehend that the sheriff has no right to change the possession of land, nor does he acquire anything by the levy but a right to enter for the purpose of the sale. The seizin, the possession and the right of possession, remain in the defendant until the sale, whose dominion continues unimpaired, except as to the jus disponendi. Thus was one effect of the levy; (282) the other was to set apart this land to be converted into money according to the terms of the fi. fa. But there must be some lawful authority in existence for this conversion and sale; the sheriff clearly had none, for his had expired more than twelve months before the sale; and any private individuals might as legally have sold the land as the sheriff did in this instance. Though the statute of George II. and our act of 1777 have made lands liable to be sold on a fi. fa. equally with chattels, yet there are specific distinctions between the two sorts of *125 property, to which even laws must be molded in order to be useful. Land cannot be removed; therefore, the sheriff incurs no risk after the levy, and possesses consequently no right except that to enter for the purpose of a sale. After a sale he can give only the legal, not an actual possession, and every purchaser knows that he must resort to an ejectment unless the defendant is willing to surrender the possession. But with respect to chattels, he cannot even sell them unless they are present and so completely within his control as to enable him to deliver possession to the purchaser.
Though I am aware that the statute of 5 George II., ch. 7, was professedly intended to enable British subjects in England to sell real estates on execution in the colonies, in order to recover debts due to them, yet this then colony was no sooner emancipated than she passed a law for the purpose of rendering land liable to debts upon the deficiency of personal assets. Yet I cannot conceive that the Parliament, much less our own Legislature, intended to give to sheriffs the right to take possession of the land upon the levy, at his discretion; to turn the family out of possession, and to retain it himself until the sale. Nor has this been the construction of the statute in any of the colonies, for the defendant is never disturbed until the sale is consummated, and then only by his own consent, without suit. Judging from the practice, therefore, pursued in this State — for no light can be obtained from the British (283) cases — I should think that the proper mode would be to issue avenditioni exponas upon the return of a fi. fa. levied upon land, and that in no other way, after a levy, can it be sold by the sheriff. I think the judgment should be
PER CURIAM. Affirmed.
Cited: Tayloe v. Gaskins,