Opinion
May Term, 1819.
From Bertie.
In an action against an executor, the Jury find that he has fully administered. A scire facias issues against the devisees, to shew cause why the Plaintiff shall not have judgment of execution against the lands devised. The sci. fa. is returned "executed" generally. The devisees plead to the sci. fa. and a collateral issue is made up between them and the executor, to-wit: "whether the executor has fully administered?" This issue is found in favor of the executor, and the Plaintiff has judgment of execution against the lands devised. The execution is levied upon lands in the hands of one of the devisees who was a minor, and has no guardian, and who appeared and made defence to the sci. fa. by attorney, and not by guardian. The lands are sold and purchased by a stranger. His title is good; for
Whatever irregularity there may be in the judgment, it is the act of a Court of competent jurisdiction, unreversed and in force when the sale was made.
The execution gave the Sheriff authority to sell, and though the judgment were afterwards reversed, or set aside, the title of an intermediate purchaser at the Sheriff's sale, shall not be prejudiced.
The same principle applies to an error in the execution, the regularity of which cannot be questioned in an action against a purchaser at a Sheriffs sale.
An execution issuing after a year and a day, is only voidable at the instance of the party, against whom it issues.
If a writ be not void, however irregular it may be, the purchaser, being a stranger, will gain a title under the Sheriffs sale.
On the trial of this ejectment, the lessor of the Plaintiff claimed title to the lands in question, as devisee of John Oxley, his father. The defendants claimed title under a deed executed by the Sheriff of Bertie; to support which deed they produced the record of the County Court of BERTIE, from which it appeared that one Stephen M'Dowell had brought an action of assumpsit against the executor of John Oxley, on the trial of which, the Jury found that the Defendant's testator did assume, and they assessed damages: they further found that the Defendant had fully administered, and had not assets of his testator to satisfy any part of the damages of the Plaintiff. The Plaintiff then sued out a scire facias against the devisees of the testator, of whom the lessor (251) of the present Plaintiff was one, to shew cause why he should not have judgment of execution against the lands devised. This scire facias was returned by the Sheriff "executed," generally. The devisees appeared by an attorney of the Court, and pleaded to the scire facias, "that the executor had assets to satisfy the damages recovered by the Plaintiff." An issue was made up between the devisees and executor, to try whether the executors had fully administered. This issue was found in favor of the executor; whereupon the Court gave judgment of execution against the lands devised for the damages and cost. A fieri facias was issued, and the lands in the hands of the present lessor of the Plaintiff, were levied on and sold by the Sheriff. The defendants claim under the deed which the Sheriff made in pursuance of this sale.
The lessor of the plaintiff then proved, that during all these proceedings he was a minor, under the age of twenty-one years, and had no guardian. The record shewed, that to the scire facias he appeared and made defence by attorney, and not by guardian; that the scire facias issued against him, and was served on him, as a person of full age.
On this statement of facts, the presiding Judge directed the Jury to find for the Defendant. A rule for a new trial was obtained on the ground of misdirection by the Court. This rule was discharged, and the lessor of the Plaintiff appealed.
Whatever irregularity there may be in the judgment on which the execution issued, it was the act of a Court of competent jurisdiction, and was unreversed and in force, when the sale was made to the Defendant. The execution gave the Sheriff full authority to sell, and though the judgment should be afterwards reversed or set aside, yet the title of an intermediate purchaser at the Sheriff's sale, (252) cannot be prejudiced. "The sale shall stand, otherwise none will buy any thing upon execution." Manning's case, 8 Co. The same principle applies to an error in the execution, the regularity of which, it has been held, could not be questioned in an action of ejectment against a purchaser under a Sheriff's sale. And an execution issuing after a year and a day, without a revival of the judgment by scire facias, is only voidable at the instance of the party against whom it issues. 8 John, 361, 13 Id. 97. If the writ be not void, however irregular it may be, the purchaser will gain a title under the Sheriff's sale. 1 Ves. 195. 1 Maule Selwyn, 425. The law on this point is considered to be settled; and the Court are of opinion, that the instructions of the Judge to the Jury were entirely correct. The rule for a new trial must be discharged.
Cited: Skinner v. Moore, 19 N.C. 155; Smith v. Spencer, 25 N.C. 266; Brown v. Long, 36 N.C. 192; Murphrey v. Wood, 47 N.C. 64; Bryan v. Brooks, 51 N.C. 580; Boyd v. Murray, 62 N.C. 241; Holmes v. Marshall, 72 N.C. 40; Williams v. Williams, 85 N.C. 386; Burton v. Spiers, 92 N.C. 506; Ripley v. Arledge, 94 N.C. 467.