| N.C. | Jun 5, 1821
A verdict was found in this case for the defendant, and a motion for a new trial made on the part of the plaintiff on the ground of misdirection; this was overruled (332) and he has appealed. The proceedings which were had before the justice and in the county court under which the plaintiff derives his title are made part of the record, and several exceptions are made to them which it is first necessary to examine, since if it shall appear that the plaintiff's title is legally defective it would be worse than useless to award a new trial.
The first exception is that the levy on the land bears date 27 February, 1809, and that the judgment and levy were returned to the county court on the same day, which was the first day of the session, in violation of the act of 1794, sec. 19, which requires the return to be made to the next court of the county. But an attentive view of the act will show that its design was to give the plaintiff as quick a remedy against the land as could be had consistently with the ceremony it prescribes of obtaining an order of sale from the court, and to avoid the intervention of a session, or the day of a session, between the levy and the return to court. The proceeding is ex parte in its nature, the defendant having no day in court, and no possible inconvenience can arise from returning the levy during the sessions on one *173 day of which it may happen to have been made; it is the first court after the levy is made, and the meaning of the law is the next court when there is an opportunity of making the return. On the other hand to pass over the sessions because a levy was made on one day of it might operate as an injurious delay to a plaintiff whose judgment may have been already stayed, as it was in this case, for six months, and might further have a tendency to perplex titles by dormant liens. It therefore seems to me that the law would not be rightly construed unless February sessions were considered the next court in relation to this levy.
It is objected in the next place that there was no order of sale. But an inspection of the record will show that there was an order of sale. A venditioni exponas was moved for by (333) the plaintiff's attorney, which was granted by the court, and then a writ issued in the following words, "Ordered by the court that so much of the lands of Ezekiel Bowen and Burgess Stone already executed by the constable be sold," etc. The order of sale and the paper called avenditioni exponas are blended together, but the order of sale was nevertheless made and the clerk of the county court certifies that the transcript is a copy of the proceedings had in that court, from which it may be concluded that the venditioni exponas was first entered on the minutes and a copy then issued to the sheriff to authorize him to sell.
The proceeding might have been more formal, but it is right in substance.
It is said that the venditioni exponas was returned on the first day of the session and the sale took place afterwards, whereby it is void. With respect to an execution against chattels if a sheriff has levied in due time he may complete the levy by a sale after the return day, though he cannot levy after that day; whether he may sell land after the return day, a levy being made before, is a question not necessarily presented in the case and one on which I give no opinion. The return of the execution is collected from the record which states it to have been made on the first day of the session, and that it was returned satisfied by the sale of land. Is this true or not? If it be true the sale was within time, for the day on which an execution is returnable is the utmost time allowed by the law to execute it. But the case states that the sale was made on the second day of the court, and assuming that to be the fact it is impossible that an execution could have been returned on the preceding day, satisfied by a sale of land which had not then taken place. The fair and unavoidable conclusion therefore is that the entry was so made by the clerk in compliance with the fiction that the sessions consist *174 of one day, and that whatever is transacted during (334) the session is referred to the first day of it in legal contemplation; in strictness an execution is returnable the first day of the sessions, though there is no act of Assembly which makes it imperative on the sheriff to return it on that day. It is true that the plaintiff may call upon the sheriff and obtain a rule against him to return his writ, but if he fails so to hasten him it is understood by every one that the return of an execution during the session is sufficient; and on whatever day it is made it is constantly and uniformly in legal parlance referred to the first day. I will go one step farther and say that the practice of selling land upon execution after the first day of the sessions has prevailed so extensively and for so great a length of time that to call it now in question would shake a very large proportion of the titles in the State.
Another exception is that the execution is not directed. The answer is, the warrant has the usual direction, and the execution being on the same paper has virtually the same direction, viz, "to any lawful officer," etc.
It is further objected that the execution of the justice is issued against goods and chattels, lands and tenements, whereas it ought to have issued against the goods only, according to the act of 1794. The execution is certainly not in the precise form required by that act, but the return of the constable corrects the irregularity and renders it harmless. By his return he has done not so much as the execution required him to do, but only what the law directed, viz., to levy upon land in default of chattels. Allowing, however, all possible strength to these objections they are informalities merely, and cured by section 16 of the act of 1794.
Another exception to the proceedings is that the execution under which the land was sold is not made returnable to anygiven time. It is, however, as a matter of course, returnable at the next sessions, and being merely an authority to the sheriff to sell, he might be called upon to show how he had (335) executed it. The reason of the different rules applicable to the capias in mesne process and a capias inexecution shows that it is not essential to its validity that a return day should be specified in the writ.
In mesne process if a term be omitted the writ is void in all actions personal, and the sheriff shall not be charged, because the party not having a day in court as he ought by the return of the writ may be injured in the meantime.
But in executions a ca. sa. omitting a term is not void, for the party is not to have a day in court; his cause is at an end, and *175 he must be in prison whether the writ be returned or not, nor is it necessary it should be returned (2 Salk., 700).
The remaining objection is that the return on the execution is signed by the deputy sheriff. The answer to this is that the deed was made by the high sheriff who can take notice of the act of his deputy in selling the land and ratify it by making a title to the purchaser; a title thus consummated cannot be impaired by the return on an execution. Smith v.Kelly,
As to the objection made to the plaintiff's title at the trial on the score of fraud, the various circumstances adduced in evidence and relied upon were proper to be considered by the jury, and whatever conclusion they might draw from them ought to remain undisturbed by the court. It is possible that the jury were convinced by that evidence the plaintiff's title was founded in fraud; and could we be assured that the conclusion was thus derived we must let the verdict stand. But as it is also possible that the jury were influenced by the instruction of the court to find against the plaintiff it is our duty to consider whether such instruction was correct in point of law. And I cannot subscribe to the doctrine that the plaintiff knowing there was personal property sufficient or nearly so to satisfy the execution, (336) and the plaintiff's permitting the constable to return that there was no personal property and to levy on the land, etc., amounts to a fraud in law. I think there must be something beyond a knowledge and permission of those things; there must be a direction or active interference to make the plaintiff a party to the fraud. The officer is not the agent of the plaintiff but of the public, and is responsible to any one who may be injured by his disobedience of the law prescribing his duty. It is not sufficient to invalidate the plaintiff's title that he knew there was personal property sufficient, and with this knowledge passively allowed the sale of the land, but he must have been an actor and participator in the irregularity of the officer. To render a purchase at a sheriff's sale, though he be the plaintiff in the execution, chargeable with the irregularity of the officer because the purchaser knew and permitted it, is to extend the doctrine beyond the cases cited, in both which the attorneys sued out irregular writs and procured the wrong to be done. Finally, if it had been left to the jury to consider from all the circumstances in this case whether Lanier had taken an active share in the irregular levy and sale, the Court could not have *176 interfered with the verdict; but for the reasons before given I think there ought to be a new trial.
Cited: Forsythe v. Sykes,
(337)