137 S.E. 177 | N.C. | 1927
Civil action to recover the possession of land, etc. At the September Term, 1921, of the Superior Court of Johnston County, Bryant Rayborn recovered a judgment against the plaintiff, who at that time owned a life estate in the land in controversy. The judgment was duly docketed, and execution was issued on 14 December, 1921, returnable to the February Term, 1922, of the Superior Court of Johnston. After due advertisement the land was sold under this execution by the sheriff on Monday, 13 March, 1922, which was the first day of the regular March term. By virtue of this sale the sheriff executed and delivered to the defendant, J. D. Jeffreys, as purchaser, a deed purporting to convey title to the land, and the defendant Hocutt in good faith purchased from Jeffreys.
The February Term, 1922, scheduled for two weeks, began on 20 February and extended through Saturday, 4 March. The regular March Term began on 13 March. The sheriff's deed is dated 25 March, 1922.
The case was heard upon an agreed statement of facts, and it was adjudged that the plaintiff is the owner and entitled to the possession of the land, that the sheriff's deed be canceled, and that the cause be retained for the purpose of determining the value of the rents and profits. The defendants excepted and appealed. The execution issued on 14 December, 1921, was returnable to the February Term, 1922. This term began on Monday, 20 February, and ended on Saturday, 4 March. The sale was made on the first day of the next term, which was 13 March, the plaintiff laying no claim to a homestead exemption. Whether the sale was valid is the sole question for decision.
At common law the king had a right of execution against lands as well as goods, because the debtor held mediately or immediately from the king and was regarded as bound, not only in person, but as the tenant of a feud; but lands were not subject to execution for the debt of any private citizen. As the writ of fieri facias extended only to the goods and chattels of the judgment debtor and the growing profits of his *334
land, and did not run against the land itself, relief was sought in the writ of Elegit (Westm. 2, 13 ed., 1), by which, if the debtor's goods and chattels were not sufficient, one-half of his freehold lands were delivered to the creditor. 2 Freeman on Executions, sec. 172; Coombs v. Jordan, 22 A.D. (Md.), 236, 256; 3 Bl., 418; Smith v. Spencer,
It was not so, however, as to land, concerning the sale of which the Court said: "The sheriff makes no seizure; is not liable for the value; the debtor is not discharged to that or any amount; the sheriff acquires no possession. He only sells the defendant's estate in the lands. He does not deliver possession to the purchaser as he does in the sale of goods, but only clothes him with the defendant's estate, and leaves him to acquire possession as he can. This shows very clearly that the sheriff sells (land) by virtue of a power, and not by virtue of a special property of any kind."Seawell v. Bank, supra. Accordingly, it was held that if the sheriff levied upon land under a fi. fa. and returned his writ he could not thereafter sell the land without a venditioni exponas, which continued the lien and the authority to sell. Smith v. Spencer, supra; Walton v. Jordan,
In this respect the law now in force is no less stringent than the statutes which controlled the former practice. A judgment recovered in the Superior Court for the payment of money is a lien on land from the moment it is docketed, and executions issued to enforce collection are returnable to the next term of the court beginning not less than forty days after they are issued. With the return day the mandate expires and the power to sell land under the particular writ is thereafter withheld. C. S., 614, 672. The principle is expressed in Rogers v. Cawood,
In the present case at the end of the February Term the execution, as said by Chief Justice Taylor, was dead in law; and as no alias was issued the sheriff had no authority to sell the plaintiff's land. His deed conveyed no title; J. D. Jeffreys was not a purchaser under an irregular execution, but a purchaser at a sale which was made without an execution.Barden v. McKinne, supra. The cases on which the appellants rely are applicable to executions or sales which are merely irregular, not to those which are void. In Mordecai v. Speight,
Affirmed. *336
