Opinion
December Term, 1852.
To authorize a sale of land, by order of the county court, there must have been a levy of the execution issued by the justice; and proof by the officer, that he adopted the levies endorsed on the executions, before issued on the same judgments, and that he considered them as his levies, is insufficient. In such case, the court had no power to grant the order of sale, and its proceeding was a nullity.
(The cases of Dickson v. Peppers, 29 N.C. 429, cited and approved.)
THIS was an action of ejectment, tried before his Honor, Judge Dick, at CHATHAM, on the last fall circuit.
No counsel for plaintiff.
Kelly for defendant.
The lessor of the plaintiff, to support his title, offered in evidence three judgments, rendered by a justice of the peace against one John Thomas, and executions thereon, of date 6 May, 1848. It appeared that levies of said executions on the land in controversy were made on 7 May, and duly endorsed on the judgments. These executions were returned to August County Court, 1848, at which term the justice's judgments were confirmed, and writs of venditioni exponas ordered to issue to the sheriff, and the land was by him publicly sold, and the lessor of the plaintiff became the purchaser; and the sheriff's deed was read in evidence. From an inspection of the judgments, it appeared also, that executions thereon were issued 9 August following; and it did not appear that any levies thereof were made by the officer.
The defendant objected to the title as made out by the lessor of the plaintiff. (1) Because the executions being issued on 6 May, and levied on the 7th, they should have been returned to the May Term of the court, which was held on the second Monday. (2) That as the last executions issued on 9 August, 1848, which was before the second Monday, the time for holding said court, there was an abandonment of the levies made in May, and consequently there was no levy to authorize the county court, at its August Term, to direct a sale.
The plaintiff then proved by one Womack, the constable, that he considered he had made levies of the executions of 9 August, but did not endorse them on the judgments, nor reduce them to writing; but adopted the levies already endorsed on the judgments and executions, as his levies, under the executions last issued. His Honor held, that as the court of Pleas and Quarter Sessions had regularly entered up (29) judgments and granted orders of sale, the court could not properly go behind said judgments, and hold that there were no levies to authorize said judgments; but must respect them as judgments of a competent tribunal, until they were reversed. The jury returned a verdict for the plaintiff, and the defendant moved for a new trial, which was refused, and he appealed to the Supreme Court.
Unless there was a case properly constituted before the county court, its judgment was a nullity; and the rule of law announced by his Honor had no application. So, the only question is, was the case properly constituted before the county court? The levy under the executions issued on 6 May was waived by the executions issued on 9 August. These latter executions were not levied. What the officer means by saying, "he adopted the levies already endorsed on the judgments and executions as his, under the last named executions," is not intelligible. He did not endorse the levies on the executions, and did not reduce them to writing; so, whatever was his mental operation, which he supposes amounted to an adoption of levies, which had been endorsed on executions that had spent their force, and been waived by taking out later executions, there certainly was no levy within the rule established by Dickson v. Peppers, 29 N.C. 429. Consequently the county court had nothing to act on — there was no case before it — and it had no power to render a judgment and grant an order of sale. So, the principle "that this Court cannot go behind a judgment of a competent tribunal until it is reversed," has no application; for there was no judgment, and the proceeding of the county court was void and of no effect.
PER CURIAM. Judgment reversed, and venire de novo awarded.
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