Opinion
(December Term, 1844.)
1. When an execution from a justice has been levied on personal property, and is afterwards stayed according to law, the levy is released and the owner may sell the property to whom he pleases.
2. When an execution issued by a justice is returned to the county court levied on land, no execution against the goods and chattels of the defendant can issue from that court unless on application of the plaintiff a judgment has been there previously rendered for the amount of the recovery before the justice. If such execution issues, it is void.
APPEAL from HENDERSON Fall Term, 1844; Battle, J.
No counsel for either party.
Trespass for seizing and taking away a quantity of corn which the plaintiff alleged was his property. Under the instructions of (219) the court, the jury found a verdict for the plaintiff, and judgment being rendered accordingly, the defendants appealed.
The facts are fully stated in the opinion delivered in this Court.
In this case it appears that the plaintiff purchased from one Robert Orr a parcel of corn, the subject of this suit, before February Term, 1843, of Henderson County Court. At the time this purchase was made by the plaintiff the corn had been levied on to satisfy an execution issued by a single magistrate, which execution had been stayed by Orr, the defendant, according to law, before he sold to the plaintiff. By the defendants it was admitted that the corn was originally the property of Orr, but that they had purchased it at a sale made by the sheriff of Yancey under two executions issuing from the February Term, 1843, of Henderson County Court; and, further, that the plaintiff acquired no title by his purchase from Orr, because the corn had been levied on to satisfy the magistrate's execution. Upon this last point the judge decided that after the defendant Orr had stayed the judgment the levy was removed and the corn was restored to the possession of Orr, and he had the right to sell it to whom he pleased. In this opinion we concur with his Honor, from the plain and manifest meaning of the act of assembly authorizing the stay; and for the additional reason that if it were not so it is a question in which no one had an interest but the plaintiff in that execution; and that the present defendants could not avail themselves of it. To support their second objection, the defendants offered in evidence two executions which had issued from February Term, 1843, of Henderson County Court, founded upon alleged judgments upon executions issued by a magistrate, levied upon land and returned to the court. The plaintiff objected that there were no judgments upon which the executions could issue. This objection was sustained by the court and the (220) papers not permitted to be read to the jury. These papers are made a part of the case. If we were to take the exception simply as it is stated, we should at once say that the objection on the part of the defendants cannot be sustained. They claim title to the corn under a sale made by the sheriff by virtue of two executions which issued from the February Term, 1843, of Henderson County Court. But before that term the case states the plaintiff had purchased the corn from the owner, Robert Orr. But it is obvious that the question the parties intended to submit is whether by the proceedings in the county court previous to February Term and the executions issuing from September Term, 1842, taken in connection with the executions from that term, the power of Robert Orr to sell the corn at the time he did was not taken away, and whether in that case the plaintiff had by his purchase acquired any to it. The case states that two judgments had been obtained before a magistrate, one at the instance of Ephraim Henry and the other at that of Robert Henry, against Joseph Wood and Robert Orr. These executions had been levied on the same tract of land, and the land sold and return made to September Term, 1842, of Yancey County Court, showing a balance due upon each execution. From September Term fi. fas. issued in the case of Ephraim Henry against both the defendants, and in the case of Robert Henry against Robert Orr alone. These executions were returned to February Term, 1843, and indorsed by the sheriff, "No goods"; and from that term fi. fas. again issued, the one in the case of Ephraim Henry against Orr alone and the other as the execution had issued from September Term. Under these executions the corn was sold, and the defendants purchased and took possession. These executions were not alias fi. fas., nor do they profess so to be, and have no connection with those which had issued from September Term. If they had been alias fi. fas. they would have kept up and continued any lien upon the corn created by the original fi. fas. But the executions from September Term were void, because there were no judgments authorizing them. Borden v. Smith, 20 N.C. 27; Irwin v. Sloan, 13 N.C. 351. And the fi. fas. which issued from February Term, 1843, were clearly void for the same reason. They were executed against Robert Orr alone, and there were no judgments in that (221) court against him. At the time, then that the plaintiff purchased the corn the title to it was in Robert Orr, unincumbered by any liens of any kind, as far as the case shows, and he had an unquestionable right to sell it to the plaintiff, and who by his purchase acquired the title. We agree with his Honor on all the points decided by him.
PER CURIAM. No error.