Opinion
(December Term, 1844.)
1. Where the execution of a justice of the peace is on the same paper with the judgment, it must be considered as referring to the judgment, and is made certain as to the debt, interest, and costs, and the person who recovered the same.
2. Where the levy of a justice's execution was "on 450 acres of land adjoining the lands of A. B., and C. (mentioning their names," the court can see no objection to the levy on its face, and without further evidence cannot say that the land was not sufficiently identified, as our act of Assembly requires.
3. It is not competent, on the trial of an action of ejectment, for a party who claims under a levy made by virtue of a justice's execution to prove by parol that due notice had been given of such levy by the constable, as required by Act of Assembly.
4. The awarding of the venditioni exponas, or order of sale, by the county court, imports that notice has been duly given to the defendant, unless the contrary clearly appear. Especially is that the case when the court expressly declare that notice has been given.
APPEAL from ROBESON Fall Term, 1844; Bailey, J.
D. Reid for plaintiff.
No counsel in this Court for defendant.
The lessor of the plaintiff claimed the land sued for as a purchaser at a sale made by the sheriff under several executions issued from the county court of Robeson. The plaintiff produced the sheriff's deed and copies of the records of the judgments and executions under which the sale was made. From them it appeared that the defendant confessed four several judgments before a justice of the peace in favor of the lessor of (23) the plaintiff, on 10 November, 1841. On each of them a fieri facias was issued 13 November, on each of which a levy was indorsed by one John McLean, a constable, in the following words: "This day levied on the legal and equitable interest of Abraham Paul to 450 acres of land, more or less, in Robeson County, adjoining the lands of Giles S. McLean, Dugald McCallum, John McLean, and others, to satisfy the above judgment, this 13 November, 1841. To the best of my knowledge, there are no goods or chattels of the defendant." One of the executions was in the words following:
"NORTH CAROLINA — ROBESON COUNTY.
"To any lawful officer: You are hereby commanded to execute and sell as much of the goods and chattels of the defendant as will satisfy the above judgment for debts and costs. For the want of such, levy on the lands and tenements as much as will be sufficient to satisfy the above judgment and the costs."
The others were substantially the same, though less formal even than the above.
The records then showed that at the court which sat on the fourth Monday of November, 1841, John McLean, the constable, returned the judgments, executions, and levies aforesaid; and thereupon follows this entry in each case:
"Due and legal notice having been given to the defendant, on motion it is ordered by the court that the judgment of the justice of the peace be affirmed with costs; and it is further ordered that a writ of venditioni exponas issue to sell the land levied on to satisfy the plaintiff's said debt, interest, and costs."
In each record is also set forth a written notice purporting to be a copy of a notice by the constable to Abraham Paul, dated 13 November, 1841, that he had that day made a levy on his land as described above, and that he intended to return the same to the next county court, as aforesaid, for the purpose of obtaining an order to sell the said land, when and where the defendant might attend. But it did not (24) appear upon the notice in what case or at whose suit the judgment and execution were, and the notice was in the name of the constable.
The defendant objected that the executions issued by the justice of the peace were informal and insufficient, and that the levies were also void because they did not conform to the statute; and he likewise objected that it did not sufficiently appear that the defendant had five days notice, as prescribed in the act; and thereupon the plaintiff offered the said John McLean as a witness, to prove that he did give the defendant notice in each case, for more than five days, of the levy and of the term of the court to which it would be returned. This evidence was objected to by the defendant, but was received by the court.
The jury under the directions of the court found for the plaintiff, and from the judgment thereon the defendant appealed.
It is sufficient for the purposes of the plaintiff in this suit if any one of the several proceedings will sustain the sale. Certainly the process and proceedings are very informal, as, indeed, almost all the acts of magistrates out of court and of their officers are. It has been found indispensable to show them great indulgence hitherto; and we are bound by the precedents. It is plain that the execution was on the same paper with the judgment, and by reference to it it is made certain as to the debt, interest, and costs, and the person who recovered the same. The case, therefore, falls upon those points within those of Forsythe v. Sykes, 9 N.C. 54, and Governor v. Bailey, 10 N.C. 463.
We see no objection to the levy upon its face, as without further evidence we cannot undertake to say that the land is not sufficiently identified by the description, or that there were any other means by which it could have been more perfectly identified, as by water-courses, if it laid on any, or the like.
(25) The Court is of opinion that it was not competent to prove by parol on the trial of the ejectment that notice had been given to the defendant by the constable. Such evidence the opposite party ought, of course, to have the right of answering by conflicting evidence; and thus the obligation of the judgment of a court would depend, not on its own terms or the authority of those who gave it, but on the credit given to the testimony of witnesses as to the proceedings in the cause.
We think, however, that the evidence of the witness was unnecessary and that the objection was untenable, to which the evidence was to apply. We have lately in Burke v. Elliott, 26 N.C. 355, had occasion to consider this question, and we then gave it as our opinion, that the rendering of the judgment imports that notice has been duly given to the defendant, unless, indeed, the contrary clearly appear. But in this case the court expressly declare upon the record that due notice was given, and that precludes all contradiction, or, indeed, inquiry into the matter. The judgment must, therefore, be
PER CURIAM. Affirmed.
Cited: Grier v. Rhyne, 67 N.C. 340; Farrior v. Houston, 100 N.C. 373; Perry v. Scott, 109 N.C. 384.
(26)