Opinion · Supreme Court of North Carolina
Doe Ex Dem. Burke v. Elliott
Doe Ex Dem. Burke v. Elliott, 26 N.C. 355 (N.C. 1844)
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1844-06-05
- Topic
- general
How later courts describe this case
- “[A] party taking upon himself to execute process must be a legal officer for that purpose . . . .”
- “[T]he acts of officers de facto are as effectual, as far as the rights of third persons or the public are concerned, as if they were officers de jure.”
- “[T]he court is forbidden to enter judgment until notice is served.”
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BURKEv. ELLIOTT,26 N.C. 355(1844)
DOE EX DEM. MOSES BURKE ET AL. v. STANTON ELLIOTT.
Supreme Court of North Carolina
(June Term, 1844.)
2. Therefore, a purchaser under such judgment and execution will acquire a valid title to the land, although the levy of the justice's execution may have been by one not legally authorized to act as an officer.
3. The acts of officersde facto, are as effectual, as far as the rights of third persons or the public are concerned, as if they were officersde jure.
4. What shall constitute an officerde factomay admit of doubt in different cases. The mere assumption of the office by performing one or even several acts appropriate to it, without any recognition of the person as officer by the appointing power, may not be sufficient to constitute him an officerde facto. There must at least be some colorable election and inductionPage 265into officeab origine, and some action thereunder, or so long an exercise of the office and acquiescence therein of the public authorities as to afford to an individual citizen a strong presumption that the party was duly appointed, and, therefore, that every person might compel him, for the legal fees, to do his business, and for the same reason was bound to submit to his authority as the officer of the country.
"The following justices of the peace of the county being present (naming ten justices), Benjamin A. Hines was duly elected constable by the court for one year, whereupon he appeared in open court and entered into bonds.
It was in proof that Hines lived in the town of Edenton, in the County of Chowan; that he was the same person who served the warrants and made the levies and returns above mentioned; that the people had made no election of a constable in 1842 for the district in which Hines lived; that the first Court of Pleas and Quarter Sessions after 1 January, 1842, commenced its session on the first Monday of February of that year, and that there was no reappointment of Hines to the office of constable until November Term, 1843. It was proved that Hines acted as a constable of Chowan County, under his appointment at November Term, 1842, until he was reappointed at November Term, 1843, and that during that time he discharged all the duties pertaining to the office of constable which he was called upon to perform, and that in the service of the two warrants before mentioned, in making the levies and giving the notices, he professed to act as constable.Page 266
(357) It was contended on the part of defendants that the appointment of constables must be made by the proper number of justices at the first term of the county court, which occurs after the first day of January in each and every year, which appointment continues for one year only, and that this appointment, on the failure of the people to elect, can only be made at that term; that it ought to appear from the minutes of the court that the people had failed to elect a constable in the district in which Hines lived, or, having made an election, that the office had become vacant, by death or removal, before the court could make an appointment; and as the record did not show how the office had become vacant, the attempted appointment of Hines was void; and, further, supposing the appointment of Hines at November Term, 1842, to be valid, yet the official term expired by limitation of law at February Term next ensuing, at which term he should have been reappointed; that, having failed to obtain a reappointment at February Term, 1843, all his acts from that time until after the reappointment at November Term, 1843, were null and void; and, therefore, as the lessors of the plaintiff claimed under warrants which had been served by him in April, 1843, and levies which had also been made in that month, they obtained no title under the sale which had been made by the sheriff of the land in controversy.
His Honor being of opinion, upon the facts, that the lessors of the plaintiff had acquired a good title by their purchase at the Sheriff's sale, especially as the acts of Hines, even if he were only constabledefacto, were valid, so far as third persons or the public were concerned, instructed the jury accordingly.
The jury found a verdict for the plaintiff, and from the judgment rendered thereon the defendants appealed.
The act of Assembly (Rev. Stat., chap. 45, sec. 8) confers the jurisdiction on the county court, when a justice's execution is returned, levied on land, to enter a judgment there for the debt recovered, and costs, on the application of the plaintiff. There the act (section 19) provides that when an officer shall levy such an execution on land he shall serve the defendant with notice, in writing, at least five days before the term to which the execution is to be returned, of the levy and of thePage 267term to which it will be returned, and thereupon the court shall make an order of sale. If it shall not appear that such notice has been given, then the court is to order a notice to issue to the defendant and shall not proceed to make any order of sale until notice be served on the defendant five days before court. These provisions show that the proceedings in the county court upon the return of a levy on land, which consist in rendering a judgment there for the debt, and awarding execution thereof against the land levied on, or against the person, or property generally, of the debtor, at the election of the creditor, is a judicial proceeding, and therefore conclusive until reversed. Rev. Stat., chap. 31, sec. 108;Jonesv. Judkins,20 N.C. 591. The rendering of the judgment imports that the required notice has been duly given, since the court is forbidden to enter judgment until notice is served. There must, therefore, have been evidence to the court that there had been notice, and the decision, upon that evidence is conclusive while it stands. We have held, indeed, that when it appears that the notice had not and could not have been given, and the want of it was not waived by the party, an order of sale would be void.Borden v. Smith,20 N.C. 27. That is the necessary result of the principle laid down inArmstrong v. Harshaw,12 N.C. 187;Irby v.Wilson,21 N.C. 568, andSkinner v. Moore,19 N.C. 138, which is, that a judgment against one not a party to the suit is void, and (359) that it can appear that he is a party only when the record states an appearance on the official service of process on the person or his property. Here the record does not state the appearance of the debtor, but it states the levy of thefieri faciason his land and notice to him personally, being both service of process on the property and on the party. That such service was actually made cannot be collaterally questioned — not more than the appearance of the party, if the record had set forth his appearance. Those are statements of matters of fact occurring in the progress of the cause, of which the court in which the case was pending must be deemed competent and necessarily exclusive judges, and therefore such statements of facts are conclusive, and no averment can be made to the contrary.Skinner v. Moore, 19 N.C.supra. It is not open to one collaterally to allege that the service was not in fact in due time, as set forth in the record, nor that it was not by a proper and lawful officer, as it purports to have been. If an action were brought on this judgment of the county court, the plea to it would benul tiel record, and not that the process was not served, or that the person who served it was not a constable or a sheriff. Much more must such averments be excluded, when the question is on the validity of what was done under the judgment — that is to say, the sale of property under an execution issued on it.Whitev. Albertson,14 N.C. 241. Our opinion, therefore, is, that in this action of ejectment the official character of Hines whoPage 268served the warrant, levied the execution, and gave the notice, could not be disputed.
But if that were otherwise, we think the judgment should be affirmed, for the reason given by his Honor, namely, that Hines, whether regularly appointed or not, was acting in the office of constable at the time, and had been for about six months before, and therefore that this his acts in office were valid. It is a settled principle that the acts of officersdefactoare as effectual, as far as the rights of third persons (360) or the public are concerned, as if they were officersde jure. The business of life could not go on if it were not so. 16 Vin. Abr., 114.
InFowler v. Bebee,9 Mass. 231, there was a plea that the commission had illegally issued to the sheriff who served the writ, and that he was notde juresheriff. Such in law was the truth, for in 10 mass, 290, upon an information, the appointment was held illegal and vacated. Yet, upon demurrer to the plea in the action mentioned, the plea was held bad.Chief Justice Parsonssaid that Smith, the sheriff, was no party to that record and could not be heard, although the judgment would as effectually decide on his title as if he were a party, which would be contrary to natural equity and the policy of the law. From considerations like those, as he considered, had arisen the distinction between holding an officede jureandde facto, and as he was a sheriff in fact, the service by him was deemed good in that action. That decision is directly in point here, and we think, rests upon a sound foundation of reason and authority. One not duly appointed to office must yield it and the fees received by him to the person lawfully entitled; and in actions between them, in which both sides could be heard, the court would determine the right, and also the legality of the appointment would be inquired into upon aquo warranto. But, except in proceedings in which the question is thus directly presented, "in the case of all peace officers, justices of the peace, constables, etc., it is sufficient," saidMr. Justice Buller, inBerryman v. Wise, 4 Term, 336, "to prove that they acted in these characters, without producing their appointments, and that even in the case of murder." And such is every day our experience of the course of proceeding. When a warrant, judgment, or an execution granted by a justice of the peace is used upon a trial, there is not a thought of proving him in office by his commission and taking the oaths, but only that he is an acting magistrate, and that he gave the precepts, or that they are in his handwriting. It is the same as to the return of a sheriff or constable. The crown case alluded to byJudge Bulleris that ofThomas Gordan, (361) decided by all the judges of England and stated by Mr. East, P. C., 315, from the manuscript ofJudge Buller, himself. The persons were indicted for the murder of George Linnell, constable of Pettishall, in the execution of his office, in attempting to arrest the personPage 269in his own house by virtue of a warrant obtained against him from a justice of the peace at the instance of one Pratt, for an assault, which warrant had been directed tothe Constable of Pettishalland delivered to the deceased to execute as constable of the parish, it appearing that the deceased, at the time he went to the person's house in the daytime to execute the warrant, had his constable's staff with him and gave notice of his business; and, further, that he had before acted as constable of the parish and was generally known as such. At a conference of all the judges they were of opinion that was sufficient evidence and notification "of the deceased's being constable, although there was no proof of his appointment or of his having been sworn into office." And Mr. East (p. 212), after saying that a party taking upon himself to execute process must be alegal, officer for that purpose and give due notification of his business, else the killing him by one he arrests will be only manslaughter, and his killing the other party purposely for not submitting to his arrest will be murder, proceeds to say that if he be aknown, officerde facto, acting within his district, it is sufficient, without proving his appointment or swearing in. This doctrine has also been frequently laid down by other courts in this country.People v. Collins, 7, John., 549;Reed v. Gillet, 12 John., 366. What shall constitute an officerde factomay admit of doubt in different cases. The mere assumption of the office by performing one or even several acts appropriate to it, without any recognition of the person as officer by the appointing power, may not be sufficient to constitute him an officerde facto. There must at least be some colorable election and induction into officeab origine, or so long an exercise of the office and acquiescence therein of the public authorities as to afford to the individual citizen a presumption (362) strong that the party was duly appointed, and therefore that every person might compel him, for the legal fees, to do his business, and for the same reason was bound to submit to his authority as the officer of the country. A public office is to be supposed necessary for the public service and for the convenience of all the various members of the community, and, therefore, that it will be duly filled by the public authority. When one is found actually in office and openly and notoriously exercising its functions in a limited district, so that it must be known to those whose official duty it is to see that the office is legally filled, and also that it is not illegally usurped, and when this goes on for a good length of time, or for a period which covers much of the time for which the office may be lawfully conferred, it would be entrapping the citizen and betraying his interests if, when he had applied to the officerde factoto do his business, and got it done, as he supposed, by the only person who could do it, he could yet be told that all that was done was void because the public had not duly appointed that person to the office whichPage 270the public allowed him to exercise. Here, Hines was appointed in November, 1842, by the county court, and by the requisite number of magistrates, for one year thereafter, which must be deemed a colorable title to the office. He entered upon the duties and performed them as the known constable of his district, up to the period of serving the execution in this case, which was 25 April, 1843. We think, clearly, that, in reference to the parties in that case, both the plaintiff and defendant, he is to be conclusively deemed a constable.
It was supposed, in the argument at the bar, that this position is opposed by the previous decisions of this Court in the case ofS. v.Shirley,23 N.C. 597, andS. v. Wall,24 N.C. 267, and particularlyS. v.Briggs,25 N.C. 357. But, as was observed inS. v. Wall, witnessthe question in the two former cases did not all concern the validity of acts done by officersde facto, or their responsibility for usurping the officers; but the question was merely whether the bonds payable to the (363) State were valid when delivered to persons not authorized by the statute to received them in the particular cases in which these bonds had been accepted. InS. v. Briggsit did not appear that Smith was a known officer or that he had acted a day, or that the transaction out of which the indictment grew was not his first essay in office, and the case was presented to this Court and seemed to have been tried in the Superior Court upon the title to his office solely, as to which there could be no doubt. It is true, the presiding judge said that the defendant could not be protected by the objection on the trial that Smith was not a constable because he did not make that objection when he resisted his authority.
But we though that made no difference, because the defendant's justification depended upon the existence or want of authority in Smith, and not upon the defendant's opinion on that point. Now his authority might be shown either by direct evidence of a legal appointment, in which he failed, or by evidence that he acted and was generally known as an officer, and that he gave notice of his official character to the defendant, in which also he failed. There was no previous exercise of any power of the office stated, not even an admission into office by the county court. An insufficient appointment only appeared, without any admission, for there was no evidence that the party was sworn in. In that state of the case he could not for any purpose be held to be officerde jure or de facto, unless as against himself as to such acts as he might undertake to do as an officer. He had not been recognized by the public as an acting officer, neither by the appointing and admitting power, nor by those who had the power and with whom was the duty, on behalf of the public, of depriving him of the office, if improperly assumed by him. It was therefore, a naked question whether the appointment by the county court was in itself valid, under the circumstances in which itPage 271was made, and the present case is for that reason distinguishable from it. Upon the general principle before state, the Court is of opinion that the judgment ought to be affirmed.
PER CURIAM. No error.Cited: Gilliam v. Reddick, post, 370;McLean v. Paul,27 N.C. 25;Welch v. Scott, ib., 74;Ward v. Saunders,28 N.C. 385;Hooks v. Moses,30 N.C. 155;Jones v. Austin,32 N.C. 22;Burton v. Patton,47 N.C. 128;Comrs. v. McDaniel,52 N.C. 113;Swindell v. Warren, in., 578;Greerv. Rhyne,67 N.C. 340;R. R. v. Johnson,70 N.C. 350;Norfleetv.Staton,73 N.C. 550;S. v. Lyon,89 N.C. 571;Spillman v. Williams91 N.C. 487;Jones v. Coffey,97 N.C. 349;Cowles v. Hardin,101 N.C. 391;S. v. Lewis,107 N.C. 972;Van Amring v. Taylor,108 N.C. 200;S.v. Davis,109 N.C. 782;Hughes v. Long,119 N.C. 55;S. v. Hall,142 N.C. 715.
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