14 S.C. 480 | S.C. | 1881
The opinion of the court was delivered by
This was an action to recover possession of a tract of land originally belonging to one N. H. Welborn, under whom both parties claimed title. The plaintiff’s title was derived from a sale made by the sheriff under an execution issued to enforce a judgment recovered by plaintiff against said N. H. Welborn, a transcript of which was docketed in the county where the land in dispute is situate, on June 5th, 1877. The plaintiff having bought the land at this sale, brought an action against the judgment debtor to recover possession and recovered a judgment therein. It appeared on this trial that “ this was the only land the said N. Harvey Welborn owned, and he resided thereon as his home, and the said land was not worth more than one thousand dollars.”
The plaintiff having proved his title closed, when a motion for a nonsuit was made upon the ground that the land in question being the homestead of the said N. H. Welborn, the sheriff could not make a valid sale of it under execution, and therefore the plaintiff had no title. This motion was refused upon the ground “ that plaintiff’s recovery of the land in his action against N. H. Welborn was conclusive of the question of his right of homestead, and it was therefore unnecessary to prove, in this case, that the judgment of Exodus Sheriff v. N. H. Welborn, was upon a cause of action existing prior to 1868and the defendant excepted.
This exception raises the first point presented by this appeal. In addition to the reason given by the Circuit judge for refusing the motion, which is quite conclusive, (inasmuch as the failure to interpose the claim of homestead on the trial of the former action to recover possession of this land effectually prevents not only the said N. H. Welborn, but the defendant, who claims under him, from now raising that question,) we may add that it nowhere appears that N. H. Welborn ever could have claimed a homestead in that or any other land, inasmuch as it nowhere appears that he was the head of a family. It is very clear, therefore, that the motion for a nonsuit was properly refused.
The defendant claimed title through a sale purporting to have been made by the United States marshal under a judgment re
For the purposes of this case, a sale by the United States marshal under an execution' issuing out of the United States court, may be regarded as standing upon the same footing and governed by the same principles as a sale made by the sheriff under an execution issuing out of the state -court. There can be no doubt but that a judgment merely will not authorize the sheriff to make a valid sale of land. There must not only be an execution conferring upon him authority to make such sale, and a levy made under such execution, but there must be an execution which has not lost its active energy; for while a sheriff may sell under an execution, which, at the time of the sale, has lost its active energy, provided the levy has been made before, (Gibbes v. Mitchell, 2 Bay 120; Toomer v. Purkey, 1 Mills’ Const. R. 323; Wheaton v. Sexton, 4 Wheat. 503; Remington v. Linthicum, 14 Pet. 84,) yet if he undertakes to make a sale of lands under an execution, which has lost its active energy before he has made a levy,
The cases cited by the appellant in his brief to sustain the rule laid down in Hopkins v. He Graffenried, do not, in our judgment, have that effect. Henry v. Ferguson, 1 Bail. 513, was a case in which the defendant in an action of trespass to try titles, not being the judgment debtor, undertook to question the regularity of the judgment under which the plaintiff claimed, and it was held that a purchaser at sheriff’s sale was not bound to examine into the regularity of the proceedings on which the judgment under which the sale is made was founded, and that third persons cannot take advantage of such irregularities. It is difficult to see how this case can be regarded as either recognizing or sustaining Hopkins v. De Graffenried. In Ingram v. Belk, 2 Strob. 207, the questions were as to the regularity of the judgment and execution under which the sale was made, and it was again held that third persons could not take advantage of mere irregularities; that an execution, issued more than a year and a day after the judgment was rendered, was not void but voidable merely, and a purchase made under it before it had been set aside was good. But there is nothing in the case which warrants the idea that mere recital in a sheriff’s deed would supersede the necessity for proof of the execution and levy under which the sheriff sells. In Floyd v. Mintsey, 5 Rich. 365, the question was as to the sufficiency of the evidence offered to establish the judgment under which it was claimed that the land was sold, and although the Circuit judge, in his report, does say “if the existence of a judgment had been proved, I suppose evidence of fi. fa. might have been derived from the sheriff’s deed,” yet the Court of Appeals say nothing whatever upon this point; in fact there was nothing in the case to call for any expression of opinion as to the effect which should be given to recitals in a sheriff’s deed. In Stuckey v. Crosswell, 12 Rich. 278, there are some remarks made which seem to countenance the idea that the recitals in a sheriff’s deed might supersede the necessity for introducing the execution and proving the levy and sale made thereunder, but that was not the point under consider
From this review of the authorities it is very manifest that the doctrine laid down in Hopkins v. De Graffenried has never been recognized in any subsequent case, but, on the contrary, the court has made several decisions which not only ignore that doctrine but are plainly inconsistent with it. Under these circumstances, and in view of what we understand to have been the universal practice in regard to the necessity for producing the execution under which the sheriff sells, and proving a levy and sale thereunder, we feel justified in declaring that the case of Hopkins v. De Graffenried is not authority.
It is true that it is stated in appellant’s second exception that search had been made for the execution under which the marshal sold, and that it could not be found, but this fact does not appear in the “ case ” as submitted here, and, therefore, as we have frequently had occasion to say, it cannot be considered.
The judgment of the Circuit Court is affirmed.
This fact, viz., that the levy bad not been made until after the execution had lost its active energy, does not appear in the case as reported in Bay, but in Toomer v. Purkey, 1 Mills’ Const. P. 323, it is stated as distinguishing the one case from the other.