Opinion
July Term, 1827.
From Greene.
1. A sale under a venditioni exponas of lands, or with or without a venditioni, of goods levied on under a fi. fa. is an act done in execution of the authority given by the writ under which the levy was made. Therefore, when such a sale was made in 1820, under a levy made before, it was held that the sheriff's refusal to pay over the money raised by the sale was no breach of the condition of his official bond for 1820.
2. A venditioni can issue only to the sheriff who made the levy.
JAMES EASTWOOD was sheriff of Greene from May, 1819, until May, 1820, at which time he was reappointed, and gave, with the other defendants, his sureties, the bond on which this action is brought, dated May, 1820, and conditioned for the faithful discharge of his duties.
No counsel for the appellant. (159)
Gaston contra.
On the trial the evidence was that the executors of Holliday recovered three several judgments against one Brand, of (158) which the whole amount was $300, on which fi. fas. issued, tested of February and returnable to May, 1820, on which Eastwood, the sheriff, returned that he had levied upon a tract of land and several negroes, which remained unsold for want of bidders.
On one of these returns a venditioni exponas issued, returnable to August, 1820, on which the sheriff returned that no sale was made for want of bidders. It did not appear in evidence that any other executions issued upon these judgments or either of them, but on 27 February, 1821, Eastwood sold the land. levied upon for the sum $1,500, and the negroes for a like sum; and a small balance remaining in his hands of the proceeds of the sale, after satisfying the judgments as well as other demands upon Brand, Eastwood came to a settlement and accounted with him therefor. The above judgments not being paid by the sheriff, the question was whether the plaintiff had shown a breach for which the defendants were liable upon the bond of 1820.
His Honor, Judge Daniel, who presided, instructed the jury that if no other executions issued than those mentioned above, the plaintiff had shown no breach; that it was incumbent on the plaintiff, if any other execution did issue, to produce evidence thereof; and, further, that if other executions had issued, founded on the levy returned to May, 1820, as writs of venditioni exponas, and under these sale was made, such sale related to the levy, and such new writ only authorized or required the completion of the former execution, of which the levy was the commencement, and therefore no breach was shown of the condition of the present bond.
Under these directions the jury found for the defendants, and a rule for a new trial being discharged and judgment given, the plaintiffs appealed.
I think the charge of the judge to the jury in the Superior Court was correct. The question submitted to the Court is somewhat confused, because Eastwood was sheriff both in 1819 and 1820. Let us suppose that some other person was sheriff in 1819, and that the executions of fieri facias issued into his hands and were returned no sale for want of bidders to May court, 1820, at which court Eastwood was appointed sheriff. From that court the plaintiff in the executions thought proper to issue writs of venditioni exponas; it is proper that these writs should issue to the first who had levied on the property, because an execution is said to be an entire thing, and he who begins it must end it ( Anonymous, 2 N.C. 415; Gwillim's Bacon, Sheriff, J., cases therein cited), consequently it would be the duty of the first sheriff, not of Eastwood, to sell the property, as was done in February, 1821. The power of finally selling the property was a continuation of the power which he had to levy upon it. But it seems that the same person, Eastwood, was sheriff in 1819 and 1820. Then it follows that as he levied upon the property by virtue of his appointment in 1819 and sold it, and received the proceeds of sale under a continuation of a power derived from the same appointment, that he did not in any respect act under the authority of his appointment in 1820; that he might and ought to have sold the property in 1821, although he had not been appointed sheriff in 1821. The consequence is that his failure to pay the money which is alleged as a breach can be no breach of the bond given at May court, 1820. I therefore think the rule for a new trial should be discharged.
PER CURIAM. Judgment affirmed.
Approved: Barker v. Munroe, 15 N.C. 412; Tarkington v. Alexander, 19 N.C. 87.
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