30 N.C. 70 | N.C. | 1847
The plaintiff's case, as alleged, is as follows: Hixie Jones died in 1823, seized and possessed of the premises in dispute, leaving five children, to wit: Willie Jones, Lydia Witcher, Eliza Jones, John C. Jones and Atlas Jones. He claims three undivided fifth parts as lessee of the three first-named children, and two undivided fifth parts as lessee of Jesse Person. To show and make out the title of Jesse Person, the plaintiff gave in evidence the transcripts of several judgments in the (71) County Court of Franklin at the instance of several persons against John C. Jones, and the transcripts of several judgments in favor of several plaintiffs against Atlas Jones. All of these judgments were rendered on attachments but one against *62 John C. Jones. Executions issued and were, by the sheriff, levied on the undivided interests of John C. and Atlas Jones in the premises, which consisted of several tracts. The land was sold under all the executions, and at the sale each tract was set up separately, and the interest of the defendant sold in it at one bid. Jesse Person was the purchaser, and to him the sheriff executed a deed.
The judgments upon all the attachments were taken by default, and in all but two against John C. Jones and one against Atlas, the attachments pointed out no time or place for the appearance of the defendants. And after the institution of this suit the County Court amended the attachments so as to make them regular. The defendant also claimed title to the premises by a conveyance from Hixie Jones and her husband, James C. Jones, who died in January, 1844. This deed was offered in evidence, and upon it is the following endorsement: "The private examination of Hixie Jones, wife of James C. Jones, taken by Charles A. Hill, a member of the Court, which being satisfactory, it is ordered to be recorded; signed, C. A. Hill, J. P. March Term, 1823, Court of Pleas and Quarter Sessions." After this, but at the same term of the Court, is the clerk's certificate of the probate of the deed, by William Arendel, one of the subscribing witnesses, and an order of registration. The defendant objected that the attachments were void by reason of the defects already mentioned, and also that the sales under the attachments were not regular. Under the charge of the Court the jury found a verdict for the plaintiffs, and the defendant appealed.
The objection cannot avail the defendant. We have been so repeatedly called on to express our opinion upon this subject that we had hoped it would have been well known to the profession. The language of the Court inS. v. King,
The second objection is that the interest of John C. and Atlas Jones in the land were sold at one bid, instead of being sold separately. There is no allegation of fraud in the transaction, nor is there any complaint on the part of the owners of the land that their interests have been injured by the mode pursued. We admit it is unusual, but we do not see that it is therefore contrary to law. The law points out no specific mode in which a sheriff shall conduct the sale, but he is bound, by general principles, to sell the property levied on in such way as will probably raise the most money. The office of sheriff is a highly responsible one, and much discretion must, in many cases, be allowed him. In this case John C. and Atlas (73) Jones were owners of two undivided fifths of the lands sold; it might have been beneficial to them to have their respective interest sold by the same bid; the land thereby might have produced more. But this was a question of fact which, if pertinent to the case, ought to have been submitted to the jury, and we cannot say, as a matter of law, that the sale, for that case, is absolutely void. After the sale the owners were each entitled to one-half of the proceeds, and it was the duty of the sheriff to have applied the money to the executions accordingly. Wilson v.Twitty,
This brings us to the last objection made by the defendant to the plaintiff's right of recovery. He alleges the title to be in himself, and, to prove it, produced on the trial a deed from Hixie Jones and her husband, James C. Jones, to one Harrison, under whom he claims. It is admitted that without a private examination of a feme covert had in one of the modes pointed out by the act of the General Assembly, her deed conveys no estate in her lands. In Burgess v. Wilson,
PER CURIAM. Judgment affirmed.
Cited: Freeman v. Morris,
