37 S.E. 65 | N.C. | 1900
The plaintiff has three judgments against one Henry, amounting to more than $300, docketed in the clerk's office of the Superior Court of BERTIE on 8 January, 1900, and therefore a lien on any land he may own, lying in BERTIE, for ten years from the date of docketing. The plaintiff has caused executions to be issued on said judgment, and placed them in *28
the hands of the defendant, who is sheriff of said county of Bertie. At the time these executions were issued and (40) placed in the hands of the defendant sheriff, the said Henry, defendant in said judgment, owned the remainder after the dower estate of his mother in thirty-one acres of land lying in said county. And it is agreed that said land is worth $303.50, and that said Henry owns no other real estate; that the defendant levied said executions on said land, and advertised the same for sale thereunder, but before any sale was made the mother released and conveyed all her interest in said thirty-one acres of land to the defendant in said judgments, and he demands that his homestead exemption shall be laid off and assigned to him thereon. This the defendant proceeded to have done, and, there being no excess, declined to sell said land for the plaintiff's debts. The plaintiff thereupon brings this action, and asks the Court to issue a writ of mandamus commanding the defendant to proceed to sell said land, and to apply the proceeds to his judgments. It seems to us that, if the plaintiff has a remedy against the defendant, it is not in this action. The executions themselves are commands to the sheriff to proceed to sell such property as the defendant Henry may have, liable to execution and sale. And, if he has not done this, he and his sureties are liable by attachment, and in an action upon his bond; and there is no allegation or suggestion that the defendant is insolvent, or that his bond is not good. And, as a matter of law, we know that the plaintiff's lien continues for ten years, and longer, if he is prevented from enforcing it on account of the homestead; that, while the writ of mandamus will issue in proper cases to compel public officers to perform ministerial duties, it must be in cases where the party asking it does not have the ordinary legal remedies by which he can have redress for his wrongs. Hughes v. Commissioners,
Affirmed.