Summary
In Harris v. Irwin, 29 N.C. 432, evidence was admitted to show that the alleged purchaser had not paid the purchase money to the sheriff who sold, and the deed of the succeeding sheriff was held void.
Summary of this case from Edwards v. TiptonOpinion
(August Term, 1847.)
When land has been sold by a sheriff under an execution, and he dies before making a conveyance, the succeeding sheriff cannot make the conveyance unless the purchase money has been paid to the sheriff who sold.
APPEAL from MECKLENBURG Special Term in November, 1846; Pearson, J.
Ejectment, in which the plaintiff and defendant both claimed title to the land in question under one Penman. The title of the plaintiff consisted of a sheriff's conveyance under a judgment and execution against Penman. The sale was in October, 1839, and the sheriff's deed dated 4 November, 1839. The proceedings were all regular. The defendant's title was as follows: At April Term, 1838, of the county court of Mecklenburg, Joseph H. Wilson obtained a judgment against Penman for a large sum of money, upon which an execution issued, and was by J. McConapay, the then sheriff of the county, levied on the land in question. The levy was made on 1 October, 1836, and the execution returned, "Not executed for want of bidders." A venditioni exponus was issued to the April Term, 1839, and the land was sold by McConapay on 28 January, 1839, after he had gone out of office. Joseph H. Wilson, the plaintiff in the execution, was the purchaser. In his return the sheriff stated that no money was paid, and that when paid it was applicable to other executions. McConapay went out of office in November, 1838, and was succeeded by one Alexander, by whom the deed was made to Wilson, and at that time McConapay was dead. The case further shows that, after the sale by McConapay several other executions issued under the judgment of Wilson. The deed from the sheriff, Alexander, to (433) Joseph H. Wilson bears date 24 May, 1845, and recites the venditioni exponas to McConapay, and contains a receipt for the money as paid to him, Alexander, by Wilson. The court was of opinion that Alexander had no authority to make the conveyance to Wilson. Thereupon a verdict was rendered for the plaintiff, and from the judgment pursuant to the verdict, the defendant appealed.
Boyden, Guion, and Iredell for plaintiff.
Wilson and Alexander for defendant.
On the trial of the cause below several questions were made. Only one was decided by his Honor, and as we concur with him in his opinion on that point, we have not, as it would otherwise have been our duty to do, looked into the others. His Honor decided that the deed from Alexander to Joseph H. Wilson, under which the defendant claimed title, was void, as being made without any authority in law. The objection is that the power given by the Legislature to a sheriff to make title to lands sold by his successor in office is a special one, and must be strictly pursued. In this case the purchase money bid by Wilson, the purchaser, was not paid to McConapay, the officer by whom the purchase was made, but to Alexander, his successor in office. If the latter had any authority in law to receive it, then his deed might be good; if he had no such authority, it is not. All the acts which have been passed by the Legislature on this subject confine the power of a sheriff, out of office, to execute a deed for land sold by him while in office to the case where the money has been paid. This is the language of the act of 1784, the first on the subject. It provided that "Where a sheriff or coroner has heretofore sold any lands, etc., and has not executed deeds for the same, such sheriff or coroner, though he be now out of office, shall and he is hereby (434) required to seal and execute a deed of bargain and sale for such lands to such person or persons who have purchased at vendue and paid the money for the same"; and, "In case of his death or removal out of the State, then his successor is to make the deed as is herein next before directed." The same direction is contained in the act of 1799 and in that of 1838; the acts differing only in extending the provisions on the subject to deeds made after the periods of their respective passage as well as to those made before. Through all these acts, then, the same provision is found, that when a sheriff makes a sale of land under an execution which has begun to run, and his term of office expires, he can make a deed or conveyance of it if the purchaser has paid the money. The payment of the money is a condition, and it must be paid to him, as he is the only officer of the law authorized to receive it. In this case the execution had begun to be executed by McConapay. He had levied the fieri facias upon the land in question, the venditioni exponas had been directed to him, and under it he sold and returned to the court that the money was not paid by the purchaser. The new sheriff, Alexander, was not the returning officer, and had no process nor power to receive the money. The money was not received by him in his official character. The authority which sheriffs have to execute a conveyance under such circumstances is derived solely from the acts above referred to. It is a special delagation [delegation] of power, and must be strictly pursued. If one departure from the requirements of the law is permitted, it will necessarily introduce others, until at length the law as established by legislative will will give way and be superseded by the law of convenience. If it were necessary to investigate this case further, there are discrepancies between the return of the old sheriff, McConapay, and the deed of the new sheriff, Alexander, which would require explanation. But, believing as we do, that the authority given to Alexander by the act of 1838 was a special one, and being of opinion that the case had not arisen (435) in which he had any power to make the deed under which the defendant claims, we are of opinion that it is void and conveyed to the defendant no title.
PER CURIAM. No error.
Cited: Isler v. Andrews, 66 N.C. 555; Edwards v. Tipton, 77 N.C. 224; Cook v. Pittman, 144 N.C. 531.