30 N.C. 492 | N.C. | 1848
This was an action of trover for the conversion of a quantity of corn and oats. The defendant pleaded not guilty, and, upon the issue thereon joined, the case was tried at Iredell on the last circuit.
The plaintiff claimed title to the property in question under a conveyance which, it was admitted, was void as against creditors and purchasers. The defendant claimed by purchase at a sheriff's sale, made subsequently to the conveyance to the plaintiff, under certain executions against the vendor. It was contended for the plaintiff that the sale made by the sheriff was irregular and void, and that, therefore, the defendant was not such a purchaser as could avoid the plaintiff's conveyance. The testimony to show this was that the corn was sold (493) in a field only a part of which was visible from the point where the sale was made, and that the oats were sold by the bundle, lying in a barn upon the premises, at the distance from the place of sale of several hundred yards, according to one witness, or of a quarter of a mile, according to another. There was further testimony that other property was sold on the premises upon the same occasion, and that the bidders had had an opportunity of examining the oats and corn, which had been pointed out to them.
The court instructed the jury that to make a sheriff's sale of personal chattels valid it was not necessary that the sheriff should have them literally in his hands or under his hammer; it was sufficient if they were present in such a situation that the bidders could have a fair opportunity to inspect and examine them and to ascertain their quality and value. The court then left the validity of the sale to the jury, as a question of fact, and instructed them that if the sale were found to be valid upon the principles above stated, they should find for the defendant; otherwise, for the plaintiff. A verdict was returned for the defendant, and from the judgment rendered thereon the plaintiff appealed.
There can be no doubt that if the sheriff's sale, under which the defendant purchased, were void, the plaintiff was not bound by it. His donor could certainly have taken advantage of it, and he, claiming from the donor and standing in his place, must have had the same right. Hollowell v. *360 Skinner,
This renders it unnecessary that we should consider whether the sale of the corn was valid. Indeed, the facts respecting the sale of that article are not stated with sufficient fullness and precision to enable us to decide that question. The case does not mention whether the corn was standing or lying in heaps in the field when it was sold, whether it was sold all together (495) or by the bushel or other measure, nor how much of the field could be seen by the bidders from the spot where the sale took place. It was not necessary that the sheriff and bidders should have been in the field or immediately at it (Skinnerv. Skinner,
PER CURIAM. Judgment reversed, and venire de novo.
Cited: Shannon v. Jones,