Opinion
(Fall Riding, 1797.)
1. Where lands are designated by known and visible boundaries, and possessed for sixty years, it is, at common law, evidence of a grant.
2. Where an issue was tried between the heirs and administrators upon the plea of fully administered, and found in favor of the latter, upon which there was judgment against the lands and an execution commanding the sheriff to levy on the lands in the hands of the administrators, stating them to be the defendants; and the sheriff sold the lands in the possession of the heirs, it was held, that the execution did not command a sale of the lands in the hands of the heirs, was not warranted by the judgment, and that therefore the purchaser acquired no title.
EJECTMENT and not guilty pleaded; and upon the trial the evidence was that the lands in question were included within marked lines, and were settled upwards of sixty years ago by one S. Williams, who conveyed to Ellemore Anderson, who died possessed, devising it to his two sons, who conveyed to Mathias Strange, who died some years ago, leaving the defendant his widow; she, jointly with her son, took out letters of administration on the effects of Mathias Strange, and she also obtained a State grant for the premises, dated 23 November, 1796. A patent sworn to have been granted to Williams on 14 September, 1737, is lost. Mathias Strange in his lifetime was indebted to Dudley, the lessor of the plaintiff, in a considerable sum; and in January, 1789, the administrators confessed a judgment, and the land was levied on. The heirs of Strange were cited to __________ April, 1789, to choose guardians; and James Strange, one of the administrators, and eldest son of the deceased, was appointed guardian pro tempore. In April, 1790, an issue was tried between the heirs and administrators upon the plea that the latter had fully administered, and it was found for the administrators; then there was a judgment against the lands; an execution issued against the lands in the hands of the administrators, stating them to be the defendants; and pursuant thereto the lands in question were sold by the sheriff and purchased by the plaintiff. The sheriff executed a deed to him, dated 25 June, 1791.
The appropriation of the premises in question by an original patent or grant is actually proven by a witness who saw it and surveyed the land by it, taking down the name of the grantee and the date of the grant in writing. Besides that, the land is designated by marked and visible boundaries, and has been possessed for sixty years. This at the common law is evidence of a grant, and under the act of Assembly gives title against the State, where there is a color of title with twenty-one years possession. Anderson had a conveyance from Williams; and he and those claiming under him were possessed under it for the length of time and more. As to this point, therefore, we have no doubt but that Mathias Strange had title at the time of his death. His administrators confessed a judgment, and this bound them either to find personal assets or pay the money out of their own pockets. But the Court of Equity for New Bern district, upon some equitable circumstances disclosed in a bill preferred by the administrators, have decreed that no advantage shall be taken of their omission to plead plene administravit. The heirs, then summoned to put this fact in issue, did so, and a plene administravit was found, so as now to appear of record, and there is a judgment now remaining in full force against the land. This judgment warrants a sale of the land to satisfy the plaintiff's debt, but no such sale ever took place. The sheriff sold to the lessor of the plaintiff by virtue of an execution issued against the administrators, whereas the judgment is against the heirs; it commanded the sheriff to levy the debt on the lands in the hands of the administrators, whereas the judgment condemns the lands descended to the heirs at law and in their possession. There is no judgment, therefore, to warrant the execution by which this land was sold; neither did the execution command a sale of the lands now in dispute, and the sheriff has sold them without any authority.
Verdict and judgment for the defendant. Quere: What judgment the Court would have given had the fieri facias commanded the sheriff to levy the debt of the lands and tenements in the hands of the heirs, and there had not been any judgment produced? Would the vendor have recovered as a purchaser under a fieri facias issued to and executed by the proper officer, or must he also have shown a judgment? The fieri facias justifies the sheriff, though the judgment was void, or be vacated afterwards, or be reversed at the time, except in the instance where he sells goods claimed by a third person which are alleged to have been fraudulently transferred to him by the debtor in illusion of the judgment; but it will not justify the plaintiff, who should not cause it to issue, if the judgment be void or vacatable for irregularity, or be reversed; neither will any stranger be justified by the fieri facias alone. Salk, 409; 2 Bl., (14) 1104.
NOTE. — Upon the point in regard to the presumption of a grant, see Sullivant v. Alston, post, 128; Hanks v. Tucker, post, 147; Fitzrandolph v. Norman, 4 N.C. 564; Rogers v. Mabe, 15 N.C. 180; Harris v. Maxwell, 20 N.C. 241; Candler v. Lunsford, ib., 407. The cases of Fitzrandolph v. Norman and Harris v. Maxwell decide that the act of 1791 (1 Rev. Stat., ch. 65, sec. 2) making certain possessions of land valid against the State, does not affect the common-law principle of presuming a grant from great length of possession.