This is an action of trespass quare clausum fregit. On the trial, in order to show title the plaintiff offered in evidence the transcript from the records of the County Court of Sampson, showing a judgment and venditioni exponas in behalf of Holmes and Bunting against one Harman Owen, and a sheriff's deed covering the land in question. The defendant insisted that no sale being endorsed on the execution, or otherwise made to appear, the sheriff's deed was not evidence of the fact. (82) It was further insisted by the defendant that it did not appear by the sheriff's deed, or otherwise, that any sale had been made by the sheriff under a venditioni exponas corresponding with the judgment in favor of Holmes and Bunting. The sheriff's deed to the plaintiff, which is made a part of the case, recites as his authority for selling the land a venditioni exponas against Harman Owen, but does not set forth the name of the plaintiff, and was for a different sum from that in the execution produced; nor does it appear that any execution in the name of Holmes and Bunting against Harman Owen ever was in the hands of the sheriff. The presiding judge was of opinion that, under the circumstances, the sheriff's deed conveyed no title to the plaintiff, who thereupon submitted to a nonsuit, and appealed.

NASH, J.

In the opinion of the judge below we entirely concur. The plaintiff claims to be a purchaser at an execution sale made by the sheriff. In order to sustain his title, it is sufficient for him to show a judgment, execution sale and the sheriff's deed. He did show a judgment in favor of Holmes and Bunting against Harman Owen and an execution, but he has entirely failed to show that execution, or any other sufficient one, ever was in the hands of the sheriff, or was so at the time of the alleged sale. The sheriff's deed is not evidence of the fact, nor does it set forth that execution or any other valid one. It is true the recital in a sheriff's deed is no part of it; the deed is good without it, and of course if he misrecite the execution under which he sells, or recites no execution, his sale is nevertheless good if, at the time he makes it, he has in his hands a (83) valid one. But a more serious objection to the plaintiff's recovery is that there is no evidence in the case that the sheriff ever did make any sale of the land in dispute. When a sheriff receives an execution it is his duty to levy it, and make public sale of the property so levied on; he cannot deliver it to the plaintiff in the execution in satisfaction of his debt, nor can he sell it at private sale; and until he does sell it as the law directs his deed can convey no title to the purchaser. It is the judgment, execution, sale and conveyance by him that completes the conversion of the property.

There is no return upon the venditioni exponas by the sheriff of any sale, nor is it essential there should be. When made it is not conclusive on the parties, but may be controverted, and if omitted, may be supplied by testimony aliunde. The sheriff himself would have been a competent witness to prove the fact. McEntire v. Durham, 29 N.C. 152; Carter v. Spencer, ib., 14; Here there is not the slightest evidence of any sale by the sheriff, apart from his deed, nor is it shown he ever had in his hands any valid execution whatever. If the deed were an ancient one, and possession had been held under it, a presumption of a sale might arise from the contents of the deed.

PER CURIAM. Judgment affirmed.

Cited: Hardin v. Cheek, 48 N.C. 137, 138; Isler v. Andrews, 66 N.C. 555; Jones v. Scott, 71 N.C. 193; Pemberton v. MacRae, 75 N.C. 500; Edwards v. Tipton, 77 N.C. 225; Rollins v. Henry, 78 N.C. 348; Wainwright v. Bobbitt, 127 N.C. 277.

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