Opinion · Supreme Court of North Carolina
O. Sprinkle v. . Julius Martin
66 N.C. 55
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1872-01-05
- Topic
- general
Pbabson, 0. J. The defendant acquired no title by his purchase at the Sheriff’s sale, for Sprinkle (the defendant in the execution) had no estate or interest in the land, which could be'sold by the Sheriff under execution. Thompson v. Ford, 7 Ired, 418.
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O. SPRINKLEv. JULIUS MARTIN,66 N.C. 55(1872)
O. SPRINKLEvs. JULIUS MARTIN,et al.
Supreme Court of North Carolina
(January Term, 1872.)
After the debts are paid, the resulting trust is liable to sale under execution. But a mixed trust cannot be sold in that way.
Defendants offered in evidence a transcript of record from the Superior Court of Mecklenburg county, setting forth a judgment obtained in said court, by Springs McLeod against O. Sprinkle, at Fall Term 1856, of said Court, and afi faissued thereon to Spring Term 1857, which execution was returned unsatisfied. Also stating, that an aliasfi fahad issued from Spring Term to Fall Term 1857, and returnedPage 56unsatisfied. It was also stated that a pluriesfi fahad been issued, returnable to Spring Term 1858, of Mecklenburg Court, which was levied upon plaintiff Sprinkle's interest in said land, and that the same was sold. The return did not state to whom the land was sold. Nofi fawas set out in the transcript, except the one to Spring Term 1857. Defendants offered a deed from the Sheriff of Wilkes to themselves as purchasers. Plaintiff objected to the introduction of the deed. The Court overruled the objection. The plaintiff asked the Court to charge the jury, that as both parties claimed under the same parties, and as the plaintiff claimed through Cook, whose deed bears date 27th day of March, 1855, a date prior to the execution, under which defendants claimed, plaintiff was entitled to recover. The Court declined so to charge, and instructed the jury that the plaintiff being maker of the trust to Cook, had a legal interest on the 3rd day of May, 1858, which was liable to execution and sale, and the defendants being the purchasers thereof, plaintiffs would not recover. Verdict for the defendants. Rule for a new trial. Discharged. Appeal, c.
The plaintiff at that time had no legal estate, and his resulting trust was not liable to execution sale.
ERROR.Venire de novo.Page 58