Opinion · Supreme Court of North Carolina

Collais v. . McLeod

30 N.C. 221

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1848-06-05
Topic: general

Battle, J. Two objections were taken to the recovery of the lessor of the plaintiff, on the trial of this case in the Court below. The first was, that the writ of execution, under which the lot of land in question was sold, did not correspond swith the judgment, and could not therefore he supported by it.- From the transcript of the record, it appears that Alexander Johnson recovered a judgment bearing date the 33d day of December, 1S40, against the defendant, Rebecca McLeod for the sum of forty dollars and twenty cents and costs, upon which an execution issued, which, for want of goods and chattels, was levied on the lot of land now sued for, and due return thereof was 'jmade to the then ensuing term of the County Court. At that term, the judgment of the justice was “ affirmed for forty dollars and twenty cents," and costs, and an order was made, that a writ of venditioni exponas should isue for the sale of the land levied upon. The writ of vendi. expo, was issued accordingly, but in it the sheriff, was commanded to make the amount of the said judgment •“ with interest from the 33d day of December 1840, until *223 paid” and costs.

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Cited by: 6 opinions

COLLAISv. McLEOD,30 N.C. 221(1848)

DEN ON DEMISE OF WILLIAM L. COLLAIS v. REBECCA

McLEOD ET AL.

Supreme Court of North Carolina

(June Term, 1848.)

1. Where a judgment and execution from a justice were for a certain sum and costs, and for want of goods and chattels the execution was levied on lands, and returned, as by law directed, to the County Court, and an order forvenditioni exponasto issue, etc., and thevenditioni exponasdirected the sheriff to levy and sell for the amount returned by the justice, and alsofor interest on the justice's judgment: Held, that the execution was not valid, even as to the purchaser at the execution sale.

2. An execution cannot require the collection of interest, when the judgment upon which it is issued does not give it.

3. Where a judgment is recovered by a sheriff, and the execution thereon is issued to him, any sale made by him under such execution is absolutely void and vests no title in the purchaser.

APPEAL from the Superior Court of Law of CUMBERLAND, at Spring Term, 1848,Bailey, J., presiding.Page 166

This was an action of ejectment, in which the plaintiff claimed under a judgment, execution,venditioni exponasand sheriff's sale and sheriff's deed. The judgment was for $40.20 — thevenditioni exponasfor that sumand interest. The judgment and execution are in the name of Alexander Johnson, who was the sheriff of Cumberland; but it was proven by the sheriff (his testimony being objected to by the defendant, but allowed by the court) that although the judgment was in his name, it was originally, in equity, the property of the lessor of the plaintiff, except the sum of $5.20, and that before the sale, and even before the lastvenditioni exponasissued, the lessor of the plaintiff had purchased of and paid the said sheriff for all (222) his said interest, and the said sheriff from thenceforth ceased to have any other or further interest in said judgment than he had in any other judgment upon which an execution had come to his hands.

A verdict was rendered for the plaintiff, subject to the opinion of the court whether there was such variance between the judgment and execution under which the plaintiff claimed as to vitiate the sale, and whether the sale, being made by the sheriff under the above-mentioned circumstances, was invalid; and the court being of the opinion upon those points with the defendants, directed a nonsuit, and the plaintiff appealed.

Strangefor plaintiff.W. WinslowandMcRaefor defendants.

BATTLE, J.

Two objections were taken to the recovery of the lessor of the plaintiff on the trial of this case in the court below. The first was, that the writ of execution under which the lot of land in question was sold did not correspond with the judgment, and could not, therefore, be supported by it. From the transcript of the record it appears that Alexander Johnson recovered a judgment bearing date 23 December, 1840, against the defendant Rebecca McLeod for the sum of $40.20 and costs, upon which an execution issued, which, for want of goods and chattels, was levied on the lot of land now sued for, and due return thereof was made to the then ensuing term of the County Court. At that term the judgment of the justice was "affirmed for $40.20" and costs, and an order was made that a writ ofvenditioniexponasshould issue for the sale of the land levied upon. The writ ofvendi. expo. was issued accordingly, but in it the sheriff was commanded to make the amount of the said judgment "with interest from 23 December, 1840, until paid" (223) and costs. It was contended that the execution did notPage 167pursue the judgment, because it ordered the collection of interest, with, regard to which the judgment and justice's execution were silent. We think that the objection is well founded. At common law a judgment did not carry interest when an execution, or ascire faciasto revive it, was issued upon it. But if a new action were brought upon the judgment, then interest was allowed.Anonymous,3 N.C. 26;Deloach v. Work,10 N.C. 36. The act of 1807 (1 Rev. St., ch. 31, sec. 95) was passed for the purpose of amending the law in this respect. It provides that "in all actions brought to recover money due by contract, except on penal bonds," the jury shall distinguish by their verdict what is due as principal money from what is due as interest, and that judgment shall be rendered thereon that the sum due as principal money shall carry interest until paid. Whether this applies to actions brought by warrant before a single justice, where there is no jury, or whether a fair interpretation of the "Act concerning the power and jurisdiction of justices of the peace" (1 Rev. St., ch. 62) confers a similar power in such cases upon a single justice, it is unnecessary for us to decide. It is clear that an execution cannot require the collection of interest when the judgment upon which it is issued does not give it. The writ ofvend. expo., then, in this case varies from the judgment in this particular; and it being incumbent upon a purchaser, claiming under a sheriff's sale, to produce, besides the sheriff's deed, a judgment and an execution corresponding therewith, the title of the plaintiff is defective.Dobson v. Murphy,18 N.C. 586;Ingham v. Kirby,19 N.C. 21;Blanchard v. Blanchard,25 N.C. 105.

The second objection presents a question of more difficulty; but, after much reflection and after consulting all the authorities bearing upon the subject to which we have been referred in the argument or which we could ourselves (224) find, we have been led to the conclusion that this is also fatal to the title of the lessor of the plaintiff. It is well established that at the common law process should be issued to the coroner in all cases where the sheriff is a party, either plaintiff or defendant; and that if, in such cases, it be issued to the sheriff, it will be set aside as irregular, upon the application of the other party to the court from which it was issued. 1 Black. Com., 349; 1 Sir W. Black., 506; 4 Inst., 271; Watson on Sheriffs, 37. Our Legislature evidently proceeded upon the supposition that such was the law, in passing the acts of 1779 and 1821 (1 Rev. St., ch. 25, sec. 7, and ch. 31, sec. 59), which provide for the execution of process in all cases where there is no proper officer in any county to whom it can or ought to bePage 168directed.Anonymous,2 N.C. 423. But admitting that such is the law, and that upon the application of the defendant in this case the writ ofvend. expo. would have been set aside, it has been contended before us that the sale made by the sheriff was valid, and that the plaintiff's lessor acquired a good title by his purchase. We think that upon principle it ought not to be so, and upon authority it is not so. Self-interest is so strong a principle of action, and its tendency to pervert the judgment and improperly to control the conduct of all men is so direct, so constant, and oftentimes so overpowering, that the law absolutely and totally prohibits a party to a suit from being a judge in his own case; and, with a few exceptions founded upon special reasons, he is equally prohibited from being a witness for himself. The danger of being drawn aside from the line of propriety, where the execution of process, whether mesne or final, is committed to a party, is nearly, if not equally, great. The law, then, should equally exclude him from acting in such a case; and this can be most effectually accomplished by holding the process, and everything done under it, null and void. We accordingly find that though there are some ancient cases (225) to the contrary, it was adjudged in 37 Eliz. inCandish'scase(cited in a note toSir Ralph Rowlett's case, Dyer, 188, pla. 8) that if a sheriff has a statute extended, and aliberateis directed to him, it is void. See, also, to the same effect,Elston v.Britt, Moore, 547, and Viner Ab., Tit. Sheriff, Letter P, sec. 5.

We have been unable to find any case in the modern English reports bearing directly upon this question, and our search among the reports of the United States and of the several States has been almost equally fruitless. The reason, doubtless, is that such cases are of very rare occurrence. We have, however, found a case in the Kentucky reports where it was decided that a deputy sheriff could not legally execute afieri faciaswhich issued in his own name and for his own benefit, and that his levy under it upon a personal chattel was void.Chambers v. Thomas, 1 Littell, 268. The assignment of all his interest in the judgment by the sheriff, before he sold the land in question, makes no difference. He still continued the legal owner of it, and his sale under the execution in his own name was therefore null and the purchaser acquired no title.May v.Walters, 2 McCord, 470.

PER CURIAM. Judgment affirmed.Cited: Fleming v. Dayton, post, 455;Rutherford v. Raburn,32 N.C. 147;Bowen v. Jones,35 N.C. 27;McNeill v. R. R.,138 N.C. 4.Page 169

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