49 N.C. 481 | N.C. | 1857
A sale, under execution, passes only such interest or estate as the debtor may rightfully pass, because it operates by act of law. If, therefore, a debtor has a particular estate, and the property is sold under execution, the party entitled to the ultimate estate, or remainder, (as it is usually termed,) has no ground of complaint; for his estate is in nowise interfered with, notwithstanding the officer may profess to sell the "entire estate, and not a particular interest only."
In our case, the debtor was entitled to the slaves from the 12th of July, 1853, until the 15th of October, and we assume from the statement, that the sale was made during that time. The defendant did not interfere with them afterwards. It is clear that the count in trover cannot be maintained, for the *483 plaintiff was not entitled to the possession at the time of the supposed conversion. It is equally clear, that the count in case, could not be sustained, for, as we have seen, the sale which was made, at the instance of the defendant, in nowise interfered with his estate. It is only in cases where the property is destroyed, or removed to parts unknown, (which is considered as amounting to a destruction,) that a remainderman can maintain "case" for the injury to his estate; upon the same principle that a tenant in common is allowed, under such circumstances, to maintain an action.
There is an additional fact set out in the statement: The debtorbought the property; so that to all intents and purposes, the plaintiff, after the sale, stood in statu quo, and his having a cause of action, either in trover or case, is out of the question. There is no error.
PER CURIAM. Judgment affirmed.
