Summary
In Blanchard v. Blanchard, 25 N.C. 105, where the levy did not conform to the terms of the description prescribed in the statute, it was held that the onus was thrown on the purchaser of showing by extrinsic evidence that the return does as completely identify the land as it would have been identified by a literal observance of the statute.
Summary of this case from Hilliard v. PhillipsOpinion
(December Term, 1842.)
1. The purchaser at an execution sale must show a judgment, and an execution corresponding thereto. An execution at the instance of B is not warranted by a judgment in favor of A.
2. If a constable in returning to Court a levy on land does not describe it as required by the Statute, Rev. St., c. 46, s. 16, a purchaser under a venditioni exponas, issued by the court, in order to support his title in a trial at law must show by extrinsic evidence, that the return does as completely identify the land as it would have been identified by a literal observance of the Statute.
APPEAL from Manly, J., Fall Term, 1842, of DUPLIN.
Ejectment. The lessor of the plaintiff, as a part of his title, produced a judgment in favor of William McCurdy against Noah Blanchard, obtained before a Justice of the Peace, and a separate execution with subsequent legal proceedings in favor of Reuben Blanchard, against Noah Blanchard. This execution was endorsed as follows:
"Levied on the land of Noah Blanchard, joining the lands of H. Blackmore, Reuben Blanchard and others.
8 April, 1831. JES. LAWSON, Dep. Sheriff."
This execution was returned to Court, and notice given to the defendant in the execution. A venditioni exponas issued from the Court founded on this levy, and, at the sale of the land, Reuben Blanchard became the purchaser, and under him the lessor of the plaintiff (106) claims. The Court intimated an opinion, that the plaintiff in the execution, who became the purchaser at the sale, acquired no title on account of the defectiveness of the proceedings, that the execution was not supported by the judgment, and, if it were, there was no sufficient levy endorsed upon the execution, and, without them, the subsequent judgment and order of sale were nullities.
In submission to this opinion, the plaintiff suffered a nonsuit, and appealed to the Supreme Court.
No counsel for the plaintiff.
D. Reid, for the defendant.
The plaintiff undertook to deduce a title in the premises to his lessor, under a purchase and conveyance from the Sheriff. The execution, under which the sheriff sold, was a venditioni exponas, purporting to have been issued from the County Court, and commanding the Sheriff to expose to sale "the land of Noah Blanchard, joining H. Blackmore and others," which land, the execution recited, had been theretofore levied on by a constable, by virtue of judgment against the said Noah, in favor of Reuben Blanchard, and which levy had been returned to Court and confirmed, and an order of sale thereon made. It does not appear that the order of Court was exhibited, but the plaintiff gave in evidence a writ of fieri facias issued by a justice in favor of Reuben Blanchard against Noah Blanchard, a return thereon by the constable, of a levy on the land of Noah Blanchard, "joining the lands of H. Blackmore, Reuben Blanchard, and others," and a notification from the constable to the said Noah, of the levy aforesaid, that it would be returned to the Court, and that the said Court would be moved for an order of sale thereon. The plaintiff also gave in evidence a judgment before the justice, which he alleged to be that whereon the fieri facias was sued out, but the same was a judgment rendered for (107) William McCurdy, against the said Noah. Upon this evidence the Court was of opinion that the plaintiff had not made out a title in his lessor, and, the plaintiff thereupon submitted to a nonsuit.
We see no error in the opinion expressed. Both the objections made below to the title appear to us to be well founded.
A venditioni exponas confers no original authority on the officer to make the debt recovered. It is but an order to carry out into final effect, by a sale, a levy previously made; and if that levy be not valid, the sale under the venditioni transfers no title. If a valid levy has been made on chattels, the sheriff may, after the return of the fieri facias, sell without a venditioni because, by the seizure he has acquired a property in the chattels, for the purpose of satisfying the creditor. If the levy has been made on land, he cannot, after the return of the fieri facias, sell without a venditioni because with us, by such a levy, the land is not seized by the sheriff, but only set apart for the satisfaction of the judgment, and the authority of the sheriff to act under the fieri facias, expired by its return. But in each case, it is indispensable for the security of the purchaser, that the thing sold should have been seized or levied on by virtue of a valid fi. fa. It is also perfectly settled with us that however an officer may be protected in rendering obedience to an execution, although unwarranted by a judgment, because he is not bound to look behind his writ, a purchaser under an execution sale must show, not only the execution, but a judgment which warrants and sustains it. Dobson v. Murphy, 18 N.C. 586. And this doctrine has been explicitly held in cases of levies made by constables returned to Court, and sales under writs of venditioni there awarded. Ingram v. Kirby, 19 N.C. 21. Now it cannot be pretended that an execution in favor of B is warranted by a judgment rendered in favor of A.
The levy, too, as returned, does not conform to the provisions of the law. The law requires that it shall set forth what land the constable has levied on, "where situate, on what water course, and whose lands it is adjoining." Rev. Stat., ch. 62, sec. 16. In construing (108) this enactment we have held that whenever the levy returned departs from the terms of description prescribed in the statute, the onus is thrown on the purchaser of showing, by extrinsic evidence, that the return does as completely identify the land as it would have been identified by a literal observance of the statute. Huggins v. Ketchum, 20 N.C. 550; Smith v. Low, 24 N.C. 457. No extrinsic evidence in this case was offered to establish this identity.
PER CURIAM. Affirmed.
Cited: Ward v. Saunders, 28 N.C. 385; Collais v. McLeod, 30 N.C. 223; Flemming v. Dayton, Ib., 455; Jones v. Austin, 32 N.C. 22; Hilliard v. Phillips, 81 N.C. 85; Farmer v. Batts, 83 N.C. 389, 392; Blow v. Vaughan, 105 N.C. 210.