Opinion · Nclaw North Carolina

BORDEN v. SMITH, 20 N.C. 27 (1838)

A. BORDEN CO. v. RICHARD SMITH, 20 N.C. 27 (N.C. 1838)

Type: Opinion
Court: Nclaw North Carolina
Jurisdiction: Nclaw
Date: 1838-01-01
Topic: general

BORDEN v. SMITH, 20 N.C. 27 (1838) A. BORDEN CO. v. RICHARD SMITH ET AL.Supreme Court of North Carolina June Term, 1838. Execution — Justice's Judgment. 1.

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BORDENv. SMITH,20 N.C. 27(1838)

A. BORDEN CO. v. RICHARD SMITH ET AL.

Supreme Court of North Carolina

June Term, 1838.

Execution — Justice's Judgment.

1. Where an execution upon a justice's judgment is levied upon land, and returned to the county court under the act of 1794 (1 Rev. Stat., c. 62, sec. 19), it is essential to the validity of the order, which the court is authorized to make, to sell the land levied on, that the land should be particularly described; and a levy generally upon the defendants' "lands," without further specification or description, will not support such order, nor the sale made under it.Page 22

2. When an execution upon a justice's judgment is levied upon land and returned to the county court, and it appears that the defendant has not had five days notice in writing, as required by the act of 1828 (1 Rev. Stat., c. 45, sec. 19), the court has no power to order a sale of the land levied upon and any such order will be entirely null, unless the defendant appears and waives notice.

3. When a justice's execution has been levied upon land and returned to the county court, the plaintiff may apply to court and have a judgmentthererendered in his behalf for the sum recovered before the justice and costs, under the act of 1822 (1 Rev. Stat., c. 45, secs. 8 and 9), and it seems that avenditionimay issue upon such judgment to sell the land levied upon, with a specialfi. fa. to levy generally for any unsatisfied balance of such judgment; but the power of the court to render such judgment and issuefi. fa. thereon depends upon the fact whether a levy sufficiently special has been made, and also whether the defendant has had five days' notice in writing before court, or has waived it; and if no such judgment has been rendered, a writ to the sheriff commanding him to sell the land levied on cannot have the effect of afi. fa.

THE sheriff of Wayne County, at the February Term, 1836, of his county court brought into court the sum of $437, the proceeds of the sale of a tract of land of a certain Fennel Sauls, sold under sundry executions; and therewith returned also the executions, and prayed the direction of the court in the application of the money. The court made an order whereby it was to be applied in the first instance to the satisfaction of such of the executions as purported to bevenditionisissued from the court upon levies made by constables underfi. fas. directed to them by single justices, and the residue towards the discharge of afi. fa. issued from the said court upon a judgment therein, in favor of (28) the plaintiffs. Thefieri faciasunder which the plaintiffs claimed the money thus made boretestethe third Monday, viz., 16 November, 1835, commanding the sheriff of the goods and chattels, lands and tenements of Fennel Sauls, he cause to be made the sum of $500 which A. Borden Co. had recovered against the said Sauls, by the judgment of said court.Venditionisthat claimed preference to thisfi. fa. were eight in number, of which two purported to be founded on levies made on 14 November, 1835, and the others on levies made the 16th of the same month. In the two first of thesevenditionisRichard Smith was the plaintiff. In one the warrant was issued on 14 November against Fennel Sauls and Jesse Smith, and a judgment rendered the same day for $81.60 in favor of the plaintiff therein. An execution was thereupon issued immediately, which was returned on the same day "Levied on cart, steer, household furniture and land." It then appeared that without any further proceedings an execution issued from the county courttestedthird Monday of November, 1835, which recited that an execution upon a judgment for $81.60, obtained by RichardPage 23Smith against Fennel Sauls and Jesse Smith, had been returned to the court by William Smith, a constable, "Levied on the lands of said Fennel Sauls," and therefore commanded the sheriff that of the lands and tenements of the aforesaid Fennel Sauls, levied on as aforesaid, he cause to be made the said sum of $81.60 and costs, and if a balance of said judgment and costs remain due, then make the said residue out of the other goods and chattels, lands and tenements of the said defendant. The other judgment of Richard Smith was for $59.13, rendered on 14 November, against Fennel Sauls and Willis Pealer. The justice's execution was dated on the same day and returned forthwith, "Levied on land only." An execution from the court tested the third Monday of November thereupon issued reciting the judgment and execution and that the constable had returned on the justice's execution aforesaid "Levied on the lands of Fennel Sauls," and commanding the sheriff that of the lands and tenements of the said Fennel levied on as aforesaid he cause to be made the said judgment and costs, with a similar command, in case a balance should nevertheless remain due, to cause the same to be (29) made out of the other goods and chattels, lands and tenements of the said defendant. The six other executions were issued on 16 November, the day of thetesteof thefi. fa. from the court, and were on that day levied upon "land" without any further specification or description.

From the order of the county court directing the money in the hands of the sheriff to be applied to the satisfaction of thevenditionisissued upon the levies made by constables under the justice's executions in preference to thefi. fa. on the judgment obtained in court, the plaintiffs appealed to the Superior Court, where, on the last fall circuit, before his Honor,Judge Dick, the order of the county court was modified so as to confine the preference to thosevenditioniswhich purported to issue upon levies made before thetesteof thefi. fa. of the plaintiffs, and to direct the payment of the residue of the money to the satisfaction of thatfi. fa. and the othervenditionispro rata. From this judgment the plaintiffs appealed.

Badger for the plaintiffs.J. H. Bryan, contra.

GASTON, J., after stating the case, proceeded as follows:

The claims of the twovenditionispurporting to be founded on levies made 14 November will be first considered. Many objections have been made to the regularity of these proceedings, two of which apply to both thevenditionis, and are so decisively fatal as to render it unnecessary to consider of the others.Page 24

Executions on justices' judgments command the officer to make the money recovered out of the goods and chattels of the party cast, and for want of goods and chattels to levy on his lands and tenements, and make return of such levy to the justice. It is required that this levy shall set forth "the lands and tenements levied on, where situate, on what water course, and whose lands adjoining." It is the duty of the justice to whom such return is made to return the execution to the county court with all the papers on which the judgment shall have been (30) rendered, and the land so levied upon, or so much thereof as shall be sufficient to satisfy the judgment, shall, by order of the court, be sold by the sheriff, and the clerk shall record the whole of the papers and the proceedings had before the justice (see 1 Rev. Stat., c. 62, sec. 16). The plaintiffmayalso apply to the court to enter up a judgment in court for the amount of his recovery before the justice and the costs, and on such judgment being rendered, if a sale of the lands so levied on shall not produce a sufficient sum to satisfy the judgment and costs, the plaintiff may sue out execution for the unsatisfied part thereof (see 1 Rev. Stat., c. 45, secs. 8 and 9). No order of the court and no judgment was shown, and we are not at liberty to presume any other than that which the writs issued from it necessarily establish. These writs which are in the nature ofvenditionisrecite that the executions from the justice were levied "on the lands of Sauls" and command the sheriff to sell "the lands and tenements levied on as aforesaid." The command thus far is inefficient, because it nowhere appears from the writ, nor from any of the proceedings wherewith the writs are connected, what lands and tenements have been so levied on. The authority of the court in enforcing levies on executions upon justices' judgments is special. It may order all the land levied on to be sold — or a part of it only — but it can order none to be sold to satisfy thejustice's judgmentbut what has been levied on under the justice's executions. The court in the first part of these writs professes to execute this authority, and commands the whole of the land so levied on to be sold; but the writs in no way show forth or enable the sheriff to find out what is the land which he is commanded to sell. It is manifest from the provisions above recited — thespecificationsrequired in the constable's return with respect to the land levied on, and the order of the court thereon with respect to the sale either of the whole of the land so levied on, or such part of it as shall be deemed necessary — as well as from the very nature of the writ ofvenditioni exponas, that it is indispensable to the efficacy of such a writ that the thing to be sold should be set forth in it either expressly or by reference to some matter of record. The sheriff owes active obedience to the writ, but he cannot under the pretence of obedience do what (31) it commands not. Where an order of sale has been regularlyPage 25made of land levied on under a justice's execution, that order effectuates the levy by distinct relation to it. The sale when consummated under the order takes effect as from the levy. The sale, the order, and the levy are all constituent parts of a legal transfer — of the seizure and application of the debtor's land to the satisfaction of his creditor. The sale must correspond with the order, and the order with the levy. What is there to show that theland sold, the proceeds whereof are the subject of dispute, is that land which the constable had levied on under Smith's executions and which the court ordered to be sold in pursuance of such levy? It is impossible, we think, under this view of the subject, to allow a priority to these executions.

There is another view of the subject which, on account of the interest of the question that it presents, we deem it our duty to notice, although it is notessentialto the determination of the case. The act of 1828, c. 9, sec. 6 (1 Rev. Stat., c. 45, sec. 19), requires, whenever a justice's execution shall be levied on land, that the defendant shall have five days notice in writing of the levy before any order of sale can be made, with a proviso in case of concealment or removal from the county, or a residence in another state, that a publication in some newspaper may, by order of court, be substituted for such actual notice in writing. It is indispensable, we think, to the effectual execution of this legislative requirement to hold that an order of sale, made without notice — unless the defendant appear and waive notice — is altogether null. The sheriff may not be a trespasser for selling under such an order, because he is always justified in obeying a writ issued to him by a court possessing jurisdiction over the subject-matter on which it acts; but the sale transfers no title to the purchaser — the thing sold remains the property of the defendant, and is liable to be seized, notwithstanding such sale upon a generalfi.fa. of one of the defendant's creditors. The notice of the levy required by the act of 1828 was not given, and could not be given in time to support the order of November Term, and the record does not show that Sauls appeared at that term and waived notice.

Our next inquiry with respect to the executions in favor of (32) Richard Smith is whether they cannot claim to be satisfiedparipassuand ratably with thefi. fa. from court in favor of A. Borden Co. We think not. When a justice's execution is returned to court it is in the power of the plaintiff, supposing the levy to have been sufficiently special, to apply to the court and have a judgmentthererendered in his behalf for the sum recovered before the justice and costs, and we incline to the opinion that upon a fair construction of the statutory provisions he may, after obtaining such a judgment, sue out avenditionito sell the land so levied upon with a specialfi. fa. in case the amount of the judgment and costs be not made by such sale, to levy generally for thePage 26unsatisfied part of the judgment. But unless a judgment be rendered in court, if the recovery remain altogether a justice's judgment, the authority of the court extends no further than to enforce the sale of the land levied upon by the constable. It is a general rule that an execution cannot issue from any court but that in which the judgment has been rendered; and wherever a departure from this rule is authorized, it must be confined within the prescribed limits. Besides, the county court derives all its jurisdiction to act upon such subjects from the levy made and returned to it, and thefirst stepwhich it is authorized to take is to order the land levied upon to be sold. We have seen that this step cannot be taken without a notice to the defendant in execution unless he appear and waive notice. Ifthisbe an indispensable requisite to the first action of the court, it is necessarily prerequisite also to further action. The court has nooriginalauthority to issue afi. fa., but one dependent upon and suppletory to its authority to sell what has been returned to it as levied. With every disposition to view with indulgence proceedings in which a strict adherence to form is not often observed, we must nevertheless be cautious in upholding those fundamental rules which the Legislature has deemed necessary for the security of property. We are obliged, therefore, to holdtheseexecutions invalid asfi. fas.

If we are correct in the conclusion that thefi. fa. from the court has priority over these two executions, there is no difficulty in assigning to it a preference over the six other executions. These were issued (33) on 16 November, the day of thetesteof thefi. fa. from the court, and were on that day levied upon "land" without any further specification or description. No judgment nor order of court is shown, nor notice to the defendant nor appearance by him, but writs issued from the court on the same day, reciting levies "on the lands and tenements of Fennel Sauls," and following the language used in the executions in favor of Richard Smith, which have been before examined.

It is the opinion of this Court that the judgment of the Superior Court of Wayne is erroneous, and that the whole of the money brought into court by the sheriff ought to be applied towards the satisfaction of the judgment in favor of the plaintiffs.

PER CURIAM. Judgment reversed.Cited: Huggins v. Ketchum, post; Jones v. Austin,32 N.C. 22;Morriseyv. Love,26 N.C. 41;Burke v. Elliott, id., 358;Hamilton v. Henry,27 N.C. 270;Presnell v. Landers,40 N.C. 256;Powell v. Baugham,31 N.C. 155.Page 27