Opinion · Supreme Court of North Carolina

Den Ex Dem. Jennings v. Stafford

23 N.C. 404

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1841-06-05
Topic: general

Gaston, J. It is the law of this State, that a purchaser at execution sale must shew, not only the execution' under which the Sheriff sold, but a judgment warranting that execution. The only reason assigned for this doctrine is, that it must appear that the execution was not the unauthorized act of the clerk, but was awarded by the Court. Although the judgment be erroneous ;■ nay, if it be obtained irregularly,and against the course of the Court; nevertheless, so long *406 as it stands unreversed and in force, it is the act[of the Court, warrants the execution conforming thereto, and upholds the title of the purchaser. But, if what is offered as a judgment have merely the semblance thereof; as if it be rendered by a Court having no jurisdiction of the subject matter, or against a person who has not had notice to defend his right, or if it order what the Court has not power to order, so that upon its face the law can pronounce it null, it is not a judgment, and the execution issuing thereon will not protect the purchaser.

Citator

UpLaw has not yet analyzed Den Ex Dem. Jennings v. Stafford. The absence of a flag is not a finding that it is good law.

Cited by: 8 opinions

JENNINGSv. STAFFORD,23 N.C. 404(1841)

DEN EX DEM. JENNINGS v. STEPHEN STAFFORD.

Supreme Court of North Carolina

(June Term, 1841.)

1. Though a judgment be erroneous, or obtained irregularly and against the course of the court, yet while it remains unreversed, it warrants an execution conforming thereto, and upholds the title of a purchaser at execution sale.

2. But if a judgment be rendered by a court having no jurisdiction of the subject-matter, or against a person who has not had notice to defend his right, or if it order what the court has not the power to order, it is null and void, and an execution issuing thereon will not protect a purchaser.

3. Where a judgment is rendered upon a former judgment, and execution issues thereon, it is not necessary for a purchaser at a sale under this execution to produce the first judgment in support of his title.

EJECTMENT, tried at Spring Term, 1841, of PASQUOTANK, beforeNash,J., upon the following case agreed: The land in dispute was the property of the ancestor of the lessor of the plaintiff, and descended to him on the death of his ancestor. In September, 1829, a warrant was issued against the administrator of the ancestor, and returned before a magistrate, and judgment entered up as follows, viz.: "Judgment for $20 and costs. L. C. Moore, J. P. The administrator pleads fully administered and no assets." Upon this judgment an execution issued, directed to the constable, against the goods and chattels of the lessor's ancestor in the hands of the administrator; and upon the execution the constable made the following return, viz.: "The administrator denies that he has assets, and this execution is levied on the lands of James Jennings: bounded, etc." The judgment and execution were then returned to the county court and entered upon the docket, and ascire facias, reciting said judgment as a judgment rendered by the county court, issued against the heirs; a guardianad litemwas appointed by the court, who (405) accepted service of thescire facias, and judgment was entered upPage 309in court pursuant tosci. fa. by default. The only question in the case was whether the judgment on thesci. fa., without the finding of no assets before the proper tribunal, was sufficient to authorize an execution and sale of the land. His Honor was of opinion that it was sufficient and that the defendant, who was the purchaser under the execution issued upon the judgment, obtained the title; and the plaintiff, in submission to this opinion, suffered a nonsuit, and appealed to the Supreme Court.

Kinney for plaintiff.A. Moore for defendant.

GASTON, J.

It is the law of this State that a purchaser at execution sale must show, not only the execution under which the sheriff sold, but a judgment warranting that execution. The only reason assigned for this doctrine is that it must appear that the execution was not the unauthorized act of the clerk, but was awarded by the court. Although the judgment be erroneous — nay, if it be obtained irregularly, and against the course of the court — nevertheless, so long as it stands (406) unreversed and in force, it is the act of the court, warrants the execution conforming thereto, and upholds the title of the purchaser. But if what is offered as a judgment have merely the semblance thereof, as if it be rendered by a court having no jurisdiction of the subject-matter, or against a person who has not had notice to defend his right, or if it order what the court has not power to order, so that upon its face the law can pronounce it null, it is not a judgment, and the execution issuing thereon will not protect the purchaser.

The execution under which the defendant in this case sets up title was awarded by the court against the lands descended to the plaintiff's lessor, after notice had been issued to him to show cause against it. But it is insisted on the part of the plaintiff that the court was not competent in law to award the execution. The argument is that thejurisdictionof the court in relation to the subject-matter of that judgment is restricted by certain provisions of the acts of 1828, and 1784, embodied into the Rev. Stat., ch. 46, sec. 25, and ch. 63. By these it is enacted that when an action shall be commenced against an executor or administrator by warrant, and he shall suggest that he has a defense thereto, by reason of a deficiency of assets, the magistrate may proceed to pass upon the demand of the plaintiff, and to give a judgment therefor, but shall return the warrant with the judgment and the suggestion to the county court, where the defense shall be made, and if on trial the plea be found for the executor or administrator, then ascire faciasshall issue to the heirs at law to show cause why the judgment should not be satisfied out of the landsPage 310descended. In the case under consideration the magistrate, notwithstanding such suggestion, awarded execution against the goods and chattels of the intestate; the officer undertook to levy it on the lands descended; the judgment, execution, and levy were returned to the court; and then ascire faciasissued, untruly reciting that there had been a plea of fully administered tried in court, and found for the administrator. And it is asked, Can the court, in rendering a judgment upon thescire faciasthus issued, be considered as acting within the limits (407) of its authority? The answer to this argument is, that all these irregularities antecedent to thescire faciasdo not affect the jurisdiction of the court. It possesses jurisdictionover thesubject-matter, and that jurisdiction is derived from the general legislative grant to try and determine causes of a civil nature. If such causes be brought before it irregularly, and objection to the irregularity is shown in due season, the court will refuse to act, or may revoke any act into which it has been betrayed. But if, notwithstanding such irregularities, it does subsequently act, parties being before it, the act must be respected, because it is the act of a court having authority to try and determine the subject in controversy.Leary v. Fletcher, ante, 259, is not an authority for the plaintiff. That was determined upon the ground that the county court had passed an order which by lawit could not make. Having a special and limited authority to direct the sale of specific parts of an orphan's estate to meet ascertained debts, the court had undertaken to authorize the guardian to sell all or any part thereofhemight elect, to meet undefined debts. The act done was one wholly without authority, and not an act erroneously or irregularly done within the scope of authority.

It has been further argued that inasmuch as in ordinary cases, where one judgment only is rendered, that judgment must be shown by him who claims to be an execution purchaser, so in the cases where two judgments ought to be rendered before issuing execution, the purchaser should be required to show both these judgments. We do not admit the correctness of this conclusion. The sole purpose of requiring the exhibition of any judgment is to show that the execution has the sanction of the court. Now, if the court render a judgment that the plaintiff recover his debt or have execution, upon a former judgment, when in truth there is no such judgment, the adjudication is erroneous, but nevertheless, while it stands, it is the solemn act of the court, (408) havingpowerso to adjudge, and therefore authorizes process to enforce it. For most purposes thescire faciasis a new action, and judgment upon ascire faciasis sufficient warrant for any execution which conforms to it.

PER CURIAM. Affirmed.Page 311Cited: Williams v. Harrington,33 N.C. 621;Stallings v. Gulley,48 N.C. 346;Harshaw v. Taylor, ib., 514;Chambers v. Brigman,75 N.C. 490;Lee v. Eure,82 N.C. 431;McKee v. Angel,90 N.C. 62;England v.Garner, ib., 200;Spillman v. Williams,91 N.C. 487;Trotter v. Mitchell,115 N.C. 193;Morris v. House,125 N.C. 563;Ditmore v. Goings,128 N.C. 327;Evans v. Alridge,133 N.C. 380.