78 N.C. 370 | N.C. | 1878
What did the sheriff sell? is the question. Did he sell the plaintiff's interest in the tract of land of 1,900 acres, or did he sell his interest in 950 acres of land? There ought not to have been any difficulty about it, for a sheriff ought always to ascertain what it is he is about to sell, and to put it to sale at the best advantage. And if he fails to do so he is liable to the person interested, in damages. And if the purchaser at such unfair sale is in complicity with the sheriff, the sale itself may be avoided.
Here there was conflicting evidence as to whether the sheriff sold a 1,900-acre tract or 950 acres out of a tract, and the levy does not help us out of the difficulty, for that is "upon his interest in 950 acres located in Cypress Creek District, adjoining the lands of," etc. The return of sale is a little more definite, being "the 950-acre tract of land levied on," etc., showing that it was not a part of a tract, but a tract of land. And the sheriff's deed is for 1,750 acres, leaving out 50 acres, and for 100 acres, all of which added make 1,900 acres. Surely the sheriff ought not to have discharged his duty so carelessly. His imperfect excuse is, as we suppose, that the plaintiff, who was then the defendant in the execution, was tenant in common with another in a 1,900-acre tract, his undivided interest being equal to 950 acres. And the sheriff confusedly called it his interest in 950 acres, which was half of the 1,900-acre tract; and the plaintiff in this case, who was defendant in that, is more in fault than the sheriff, for he was present at the sale, knew of the sheriff's (372) mistake, and did not correct it, and called a witness's attention to it, probably for the purpose of making a fuss about it.
Although there was all this irregularity, yet the sheriff swears that he intended to sell, and proclaimed that he would sell, and did sell, all *249 the interest which the then defendant had in all his land in that district, and that his deed to these defendants by metes and bounds covers the 1,900 acres.
And to put the matter beyond dispute, so far as we can consider it, the jury found that these defendants bought, and the sheriff sold, the whole interest of this plaintiff in the 1,900 acres.
The sheriff having in his hands, a fi. fa. and ven. ex. conferring upon him a power of sale, the question is not so much, What did he levy? as, What did he sell?
The jury find that he sold the debtor's interest in the whole 1,900 acres, and that is conclusive. There is no force in the other objections. There is no error. This will be certified. The defendants will recover costs in this Court.
PER CURIAM. Affirmed.
Cited: Miller v. Miller,