34 N.C. 205 | N.C. | 1851
The case is not stated with a view to the question whether Jennings was the lessee or the servant of Pool, but assumes that he had a property in the crop and had effectually conveyed it to the plaintiff. Taking that to be so, the Court is of opinion there was a conversion of the corn for which the defendant is answerable to the plaintiff. It is the common doctrine that if an officer, under an execution against the goods of one, sell the goods of another, he and the purchaser are jointly and severally liable in trover. If this corn had been gathered and the sale made at the heap, there could be no doubt of the plaintiff's remedy against the officer, or of his right to recover the full value, as for a conversion if the purchaser under color of the purchase took it away. It seems to have been supposed that it was otherwise in this case, because the sale was utterly void and gave no color to take the corn, though it had belonged to the debtor Jennings, upon the ground that the parties were not in the field at the sale, and, therefore, the defendant did not take and deliver actual possession of the corn to the purchaser. But the Court holds the levy and sale well enough in that respect. If the corn had been gathered and lying in a pile in a stack-pen, as is usual, the officer need not get into the pen, but may sell standing on one (208) side of the fence while the corn is on the other. There being no forcible resistance at the time, that is a sufficient presence of the *145
corn and possession by the officer to render his sale effectual and must be considered as including a delivery to the purchaser, especially if the latter speedily take the thing away. The sale under such circumstances imports that the right and possession shall be in the purchaser primafacie. It must be the same in the case before the court, at least, so far as depends upon the mode of selling. Skinner v. Skinner,
PER CURIAM. Venire de novo.
Cited: Kesler v. Cornelison,
(211)