Opinion · Supreme Court of North Carolina
Den Ex Dem. of Seawell v. Bank of Cape Fear
14 N.C. 279
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1831-12-05
- Topic
- bankruptcy
HeN»ersoN, Chief-Justice. A writ issued to another’ eounty must bo under the seal of tiie court from which it issues. • Without a seal it confers no power on the sheriff; and his acting under it cannot'give it validity. This has heretofore been ruled-in this court, in the case of The Governor v. McRae. The act of 1797, '(.Rev. c.- 474, s. 5,) dispensing with the sealing of process in the cases mentioned in it, operates only in those cases.
Citator
UpLaw has not yet analyzed Den Ex Dem. of Seawell v. Bank of Cape Fear. The absence of a flag is not a finding that it is good law.
- Cited by
- 5 opinions
SEAWELLv. BANK,14 N.C. 279(1831)
DEN EX DEM. OF JAMES SEAWELL v. BANK OF CAPE FEAR.
Supreme Court of North Carolina
(December Term, 1831.)
2. Afi. fa. vests a property in goods seized under it in the sheriff, but as to land it confers upon him only a power to sell.
3. Goods may therefore be sold by the sheriff under a previous levy, without avenditioni;but a sale of land without such authority is inoperative.
4. If a sheriff has several writs against the same defendant and does not sell under one of them, that writ cannot aid the title of a purchaser under the others, although the money arising from the sale is applied to its satisfaction.
5. Where a sheriff levies afi. fa. on land and goes out of office, avenditionimust be directed to his successor.
6. Per HENDERSON, C. J. Where the sheriff has acted under an unsealed writ, the court from which it issued may, after its return, render it valid by affixing the seal.
(The cases ofThe Governor v. McRae,10 N.C. 226, andBarden v.McKinnie,11 N.C. 279, approved.)
The defendants objected that these writs did not confer upon the sheriff a power of sale, and to support the objection, produced the originalvenditioni exponas, and proved that it had never been sealed with the seal of New Hanover County Court, and urged first, that for this reason the writ was a nullity, and second, that as the sale took placePage 234after the return of thefi. fa., it was made without any authority in the sheriff, and consequently was inoperative. But his Honor overruled the objection, thinking that although the writ was not legally authenticated, yet if the sheriff thought proper to act under and recognize it, it warranted his subsequent sale.
The plaintiff also offered in evidence several judgments and executions in favor of the defendants against Perry, and proved that they were in the sherriff's hands at the time of the sale, and that the proceeds of the sale had been applied to their satisfaction; but it appeared that the agent of the defendants had directed the sheriff not to sell under these writs, although he had not withdrawn them, nor paid or tendered the sheriff his fees.
The defendants claimed title from Perry under an assignment of a mortgage, prior in time to the lien of the execution under which the lessor of the plaintiff purchased. This was impeached as fraudulent between the mortgagor and Perry, and a verdict being returned for the plaintiff, the defendant appealed.
It is next contended that the levy under thefieri faciasissued from New Hanover County Court, and returned to the succeeding (282) session of that court, levied on the lot in dispute, gave the power to sell, and that although this case may be embraced by the reasoning of the Court in delivering the opinion in the case ofBarden v. McKinnie, yet the facts are very different. There the endorsement of the levy was not made until long after the return of thefi. fa., the sale was not made until more than two years after its return day, and in the meantime the defendant in the execution had died. Here the levy was endorsed at the proper time, the sale made shortly after, and in the lifetime of all the parties. It is admitted that the case referred to is a much stronger one than this. But the principle is the same, to wit, that a sale of landsPage 235under afi. fa. is in virtue of apower, and not of apropertyin the thing sold. The latter is the case, as regards goods. By the seizure, the sheriff acquires a qualified property in them, and may maintain an action founded on that right of property, qualified to be sure, but still it is a right of property. He stands charged to the plaintiff in thefi. fa. for their value, and the debtor is discharged to the same amount. It is in virtue of this property that he makes the sale, and he needs not avenditioni exponasto confer it. He had it before. Avenditioniexponasonly puts him in contempt for not selling. But in regard to a levy on lands, it is far otherwise. The sheriff makes noseizure;is notliablefor the value; the debtor is notdischargedto that or any amount; the sheriff acquires no possession. He only sells the defendant's estate in the lands. He does not deliver possession to the purchaser as he does in the sale of goods, but only clothes him with the defendant's estate and leaves him to acquire possession as he can. This shows very clearly that the sheriff sells by virtue of a power, and not by virtue of a property of any kind. When, therefore, that which gives the power is withdrawn, the power ceases. As avenditioni exponascan give no power to sell, it is argued thatex necessitatethe power given by thefi. fa. must remain. The argument would prove much were it true. For although it is admitted that avenditioni exponasconfers no power to sell in the case of a chattel levied on under afi. fa., because the power existed before, and therefore could not be conferred again, yet (283) where the power did not exist before, that reason fails; and if not conferred by thevenditioni exponas, it does not exist. The reasonexnecessitateis therefore turned against the defendant. In these cases we have considered, and must consider, that avenditioni exponas, or order of sale, by whatever name it be called, changes its character from that which it bears where there has been a levy on goods. There it confers no power to sell, because the power existed before. But in the case of a levy on lands, it confers the power of sale, for the very contrary reason. Where goods are levied on under an attachment, and they are afterwards ordered to be sold, or where lands are levied on by a constable, and returned to court and ordered to be sold, the order of sale, whether it be called simply by that name, ordignifiedwith the name ofvenditioni exponas, is the writ which gives the sheriff power to sell. The very same reasoning is applicable to an order to the sheriff to proceed to sell land levied on by afi. fa. which has been returned, and the power of acting under it thereby withdrawn or expired. So, also, where an heir is sued on his ancestor's bond, and he confesses and sets out assets, and the plaintiff accepts them, avenditioniexponas, or order to sell them, issues. And certainly in this case no power existed before and independently of the writ.Page 236
As to the sheriff's having in his hands writs offi. fa. against the same defendant, at the instance of the Cape Fear Bank, that gave the sheriff no power to sell. For he was directed by the agent of the Cape Fear Bank not to sell under them. And this order given by parol without withdrawing the writ was good; at any rate, the sheriff obeyed the order and did not act under the writs. And this is not like a case where a person has various powers to do an act, and does it, a misrecital of the power afterwards, under which power he could not rightfully do it, will not vitiate the act. Hedidit underall, and ifeitherwas good, the act is effectual, and his misrecital shall not prejudice. He did not act, nor profess to act, under the bank executions. The directions of the (284) agent were good without paying the fees, and especially if acquiesced in by the sheriff.
We cannot examine into the grounds of the decisions in our sister states for want of their laws in regard to these writs offi. fa. There must be something in them to warrant the decisions, or we misunderstand the common law.
It is asked, If the sheriff made a levy on lands, and went out of office, is he to sell? I imagine not. Indeed, I say not. And yet if the plaintiff's argument is sound, he must. And if so, all sales made by succeeding sheriffs, where their predecessors had made a levy on lands, would be set aside. For they have uniformly been made by the successors, under writs ofvenditioni exponas. Nor will the application of the surplus in the sheriff's hands (after applying what he chose to thevenditioniexponas) to the bank executions alter the case; that is, make it a sale under the bank executions. This is only matter of evidence, and is entirely contradicted by the full proof to the contrary. As this case is to go back for a new trial, I imagine that it is within the power of New Hanover County Court to affix their seal to thevenditioni exponasnow, if it was omitted by mistake; that is, if it was intended thevenditioni exponasshould be a genuine writ. I make this suggestion, that the parties may meet on equal terms at the next trial.
PER CURIAM. Judgment reversed.Cited: Tarkington v. Alexander,19 N.C. 92;Purcell v. McFarland,23 N.C. 35;Love v. Gates,24 N.C. 16;Smith v. Spencer,25 N.C. 264;Samuel v. Zachary,26 N.C. 379;Freeman v. Lewis,27 N.C. 96;Bailey v.Morgan,44 N.C. 355;Mardre v. Felton,61 N.C. 282;Isler v. Colgrove,75 N.C. 343;Taylor v. Taylor,83 N.C. 118;Perry v. Adams, ibid., 268;Gifford v. Alexander,84 N.C. 332;Henderson v. Graham, ibid., 498;Redmond v. Mullenax,113 N.C. 511;McArter v. Rhea,122 N.C. 617;Calmes v. Lambert,153 N.C. 252;S. v. Lewis,177 N.C. 557.Page 237