The plaintiff claimed title under a sheriff's deed for the premises in dispute, dated 2 June, 1823, and reciting "an execution" which issued from the county court of New Hanover, against Peter Perry and Dominic Cazaux for $662.90, and produced the record of a judgment against Perry and Cazaux entered up in New Hanover County Court at August Term, 1819, and a fi. fa. thereon, tested the second Monday of August, 1820, and returnable the second Monday of November following, which was returned levied upon the land in question, on 11 November, 1820, as the property of Perry, subject to sundry prior levies, made under executions issuing from Cumberland County and Superior Courts, at the instance of the defendants. The plaintiffs also produced a venditioni exponas, tested the second Monday of November, 1820, and returnable the second Monday of February, 1821, which recited the former levy, and upon which the sheriff returned that he had, on 9 February, 1821, sold the land levied on under the fi. fa. to the lessor (280) of the plaintiff.

The defendants objected that these writs did not confer upon the sheriff a power of sale, and to support the objection, produced the original venditioni exponas, and proved that it had never been sealed with the seal of New Hanover County Court, and urged first, that for this reason the writ was a nullity, and second, that as the sale took place after the return of the fi. fa., it was made without any authority in the sheriff, and consequently was inoperative. But his Honor overruled the objection, thinking that although the writ was not legally authenticated, yet if the sheriff thought proper to act under and recognize it, it warranted his subsequent sale.

The plaintiff also offered in evidence several judgments and executions in favor of the defendants against Perry, and proved that they were in the sherriff's hands at the time of the sale, and that the proceeds of the sale had been applied to their satisfaction; but it appeared that the agent of the defendants had directed the sheriff not to sell under these writs, although he had not withdrawn them, nor paid or tendered the sheriff his fees.

The defendants claimed title from Perry under an assignment of a mortgage, prior in time to the lien of the execution under which the lessor of the plaintiff purchased. This was impeached as fraudulent between the mortgagor and Perry, and a verdict being returned for the plaintiff, the defendant appealed.

HENDERSON, C. J.

A writ issued to another county must be under the seal of the court from which it issues. Without a seal it confers no power on the sheriff, and his acting under it cannot give it validity. This has heretofore been ruled in this Court, in the case of The Governor v. McRae. The Act of 1797 (Rev., ch. 474, sec. 5), dispensing with the sealing of process in the cases mentioned in it, operates only in those cases. And it is a sufficient answer to say that this is not one of them, and therefore must be governed by the general rule. But if that act has any effect in this case, it is to show that a seal is here necessary. For if by the general rule it was not, why make the exception?

It is next contended that the levy under the fieri facias issued from New Hanover County Court, and returned to the succeeding (282) session of that court, levied on the lot in dispute, gave the power to sell, and that although this case may be embraced by the reasoning of the Court in delivering the opinion in the case of Barden v. McKinnie, yet the facts are very different. There the endorsement of the levy was not made until long after the return of the fi. fa., the sale was not made until more than two years after its return day, and in the meantime the defendant in the execution had died. Here the levy was endorsed at the proper time, the sale made shortly after, and in the lifetime of all the parties. It is admitted that the case referred to is a much stronger one than this. But the principle is the same, to wit, that a sale of lands under a fi. fa. is in virtue of a power, and not of a property in the thing sold. The latter is the case, as regards goods. By the seizure, the sheriff acquires a qualified property in them, and may maintain an action founded on that right of property, qualified to be sure, but still it is a right of property. He stands charged to the plaintiff in the fi. fa. for their value, and the debtor is discharged to the same amount. It is in virtue of this property that he makes the sale, and he needs not a venditioni exponas to confer it. He had it before. A venditioni exponas only puts him in contempt for not selling. But in regard to a levy on lands, it is far otherwise. The sheriff makes no seizure; is not liable for the value; the debtor is not discharged to that or any amount; the sheriff acquires no possession. He only sells the defendant's estate in the lands. He does not deliver possession to the purchaser as he does in the sale of goods, but only clothes him with the defendant's estate and leaves him to acquire possession as he can. This shows very clearly that the sheriff sells by virtue of a power, and not by virtue of a property of any kind. When, therefore, that which gives the power is withdrawn, the power ceases. As a venditioni exponas can give no power to sell, it is argued that ex necessitate the power given by the fi. fa. must remain. The argument would prove much were it true. For although it is admitted that a venditioni exponas confers no power to sell in the case of a chattel levied on under a fi. fa., because the power existed before, and therefore could not be conferred again, yet (283) where the power did not exist before, that reason fails; and if not conferred by the venditioni exponas, it does not exist. The reason ex necessitate is therefore turned against the defendant. In these cases we have considered, and must consider, that a venditioni exponas, or order of sale, by whatever name it be called, changes its character from that which it bears where there has been a levy on goods. There it confers no power to sell, because the power existed before. But in the case of a levy on lands, it confers the power of sale, for the very contrary reason. Where goods are levied on under an attachment, and they are afterwards ordered to be sold, or where lands are levied on by a constable, and returned to court and ordered to be sold, the order of sale, whether it be called simply by that name, or dignified with the name of venditioni exponas, is the writ which gives the sheriff power to sell. The very same reasoning is applicable to an order to the sheriff to proceed to sell land levied on by a fi. fa. which has been returned, and the power of acting under it thereby withdrawn or expired. So, also, where an heir is sued on his ancestor's bond, and he confesses and sets out assets, and the plaintiff accepts them, a venditioni exponas, or order to sell them, issues. And certainly in this case no power existed before and independently of the writ.

As to the sheriff's having in his hands writs of fi. fa. against the same defendant, at the instance of the Cape Fear Bank, that gave the sheriff no power to sell. For he was directed by the agent of the Cape Fear Bank not to sell under them. And this order given by parol without withdrawing the writ was good; at any rate, the sheriff obeyed the order and did not act under the writs. And this is not like a case where a person has various powers to do an act, and does it, a misrecital of the power afterwards, under which power he could not rightfully do it, will not vitiate the act. He did it under all, and if either was good, the act is effectual, and his misrecital shall not prejudice. He did not act, nor profess to act, under the bank executions. The directions of the (284) agent were good without paying the fees, and especially if acquiesced in by the sheriff.

We cannot examine into the grounds of the decisions in our sister states for want of their laws in regard to these writs of fi. fa. There must be something in them to warrant the decisions, or we misunderstand the common law.

It is asked, If the sheriff made a levy on lands, and went out of office, is he to sell? I imagine not. Indeed, I say not. And yet if the plaintiff's argument is sound, he must. And if so, all sales made by succeeding sheriffs, where their predecessors had made a levy on lands, would be set aside. For they have uniformly been made by the successors, under writs of venditioni exponas. Nor will the application of the surplus in the sheriff's hands (after applying what he chose to the venditioni exponas) to the bank executions alter the case; that is, make it a sale under the bank executions. This is only matter of evidence, and is entirely contradicted by the full proof to the contrary. As this case is to go back for a new trial, I imagine that it is within the power of New Hanover County Court to affix their seal to the venditioni exponas now, if it was omitted by mistake; that is, if it was intended the venditioni exponas should be a genuine writ. I make this suggestion, that the parties may meet on equal terms at the next trial.

PER CURIAM. Judgment reversed.

Cited: Tarkington v. Alexander, 19 N.C. 92; Purcell v. McFarland, 23 N.C. 35; Love v. Gates, 24 N.C. 16; Smith v. Spencer, 25 N.C. 264; Samuel v. Zachary, 26 N.C. 379; Freeman v. Lewis, 27 N.C. 96; Bailey v. Morgan, 44 N.C. 355; Mardre v. Felton, 61 N.C. 282; Isler v. Colgrove, 75 N.C. 343; Taylor v. Taylor, 83 N.C. 118; Perry v. Adams, ibid., 268; Gifford v. Alexander, 84 N.C. 332; Henderson v. Graham, ibid., 498; Redmond v. Mullenax, 113 N.C. 511; McArter v. Rhea, 122 N.C. 617; Calmes v. Lambert, 153 N.C. 252; S. v. Lewis, 177 N.C. 557.