9 N.C. 377 | N.C. | 1823
The plaintiff recovered a judgment against Pearson at May sessions, 1820, of Rowan County Court, and sued out a fi. fa. (378) returnable the ensuing August; the defendant levied this fi. fa. on four lots, with their improvements, in the town of Salisbury, which if unencumbered, were of value sufficient to satisfy the fi. fa. The defendant, in his return, set forth the levy and that on 26 August he offered the property for sale and the sale was postponed by plaintiff's attorney. The 26 of August was the last day of the term to which *214 the fi. fa. was returnable. Pearson, who was a carriage-maker, had on hand at the time of the levy and upon the lots levied on carriages and other personal property more than sufficient to discharge the debt, and this property was in no wise concealed or kept out of the sheriff's way. When the levy was made Pearson assented thereto and entered into a bond to the sheriff to indemnify him should he sell at the court ensuing without advertisement, in the event of the money not being paid. On 26 August the property was exposed to sale, but no bid was made for it, and it was at that time first ascertained by the sheriff that the property had been mortgaged by Pearson to secure a debt of its full value.
At August sessions, to which the fi. fa. was returnable, Allemong Locke obtained a judgment against Pearson, and on the same 26 August, after the adjournment of the court, sued out a fi. fa. returnable to November ensuing, and on the same day the defendant levied the fi. fa. of Allemong Locke on all the personal property of Pearson, who at the time urged upon the sheriff that his personal property should be applied to the satisfaction of the plaintiff's judgment. All the personal property was sold to satisfy the execution in favor of Allemong Locke, and Pearson has since that time been insolvent.
The plaintiff sued out a ven. ex. with a clause of special fi. fa. (379) upon the levy that had been made upon the lots, from the August sessions, returnable to the November sessions, and delivered it to the defendant after the levy had been made for Allemong Locke. The sheriff then advertised the lots for sale, and they were bid off at the price of one dollar, owing to the incumbrance aforesaid. The mortgage deed had been proved and registered before the plaintiff had obtained his judgment against Pearson.
The court instructed the jury that, if they believed the testimony, the law was in favor of the plaintiff. The jury found a verdict for the plaintiff, and the case now stood before this court on a rule to show cause why a new trial should not be granted: I think in this case, before a verdict had been rendered against (383) the defendant, a knowledge of the fact that the personal property spoken of was the property of Pearson should be brought home to him, or it ought to appear that the property had been pointed out to him as the property of Pearson, with an indemnity to sell it. It appeared that Pearson had on the lots carriages and other personal property more than sufficient to discharge the debt, and that *215 the property was not concealed. But it did not appear that the sheriff had a knowledge that those carriages (the other property is not specified) were the property of Pearson, the defendant in the executions. He might have thought that they belonged to other persons, and had been brought there for the purpose of being repaired. It is to be inferred from the case, but it is not stated that the carriages, etc., were the property of Pearson. Taking the facts as stated in the case to be true (and so we must take them) I think enough was not proved to warrant the jury in finding a verdict for the plaintiff, and that the rule for a new trial should be made absolute.
TAYLOR, C. J., and HENDERSON, J., concurred.
PER CURIAM. New trial.
(384)
