71 N.C. 192 | N.C. | 1874
This was an action to recover a certain tract of land described in the plaintiff's complaint. It is admitted that the land claimed by the plaintiff is the same land in the possession of the defendants, both plaintiff and defendants claiming under one Daniel Perry. Plaintiff introduced a judgment in favor of Rachel Jones against Daniel Perry, F. B. Harrison and Jacob F. Scott; also execution against same parties corresponding with said judgment, a levy on said land, a return of the sheriff of Jones County that he had sold said land to the plaintiff, and *160 a sheriff's deed for said land to plaintiff. This deed recites that by virtue of an execution in favor of Rachel Jones against Daniel (193) Perry alone, one of the defendants in the above mentioned judgment and execution, etc.
His Honor being of the opinion that as the sheriff's deed did not correspond with the judgment or execution, and that no execution was produced corresponding to the specification of the deed, the plaintiff had no title. Plaintiff submitted to a non-suit. Judgment and appeal. His Honor put his decision upon the ground that the recital in the sheriff's deed did not correspond with the judgment and execution under which the land was sold and purchased by the plaintiff.
It is well settled that the recital in a sheriff's deed is no part of it, and that if he mis-recites the execution under which he sells, or recites no execution, his sale is nevertheless good, if at the time he makes it he has in his hands a valid one. It is not denied here that the sheriff did have a valid execution against Perry, under whom both parties claim. It was error, therefore, for his Honor to hold that the plaintiff had no title because of the mis-recital. Owen v. Barksdale,
PER CURIAM. Venire de novo.
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