Opinion
August Term, 1850.
1. Where the land of a debtor has been sold by execution and an action is brought against him to recover possession, he has no right to object that the sheriff has not made the deed to the purchasers at the execution sale, since the sheriff may convey to an assignee, whether he be an assignee by law or by contract.
2. In cases of verdicts subject to the opinion of the court, all the points on which either party means to insist ought to be reserved for all points not reserved are taken to be given up. If one of the parties cannot have inserted a question on which the presiding judge inclines against him, he ought not to consent to a verdict, but peremptorily claim that an opinion shall then be given to a jury, as he has a right to do.
3. Where an action was brought in the name of James Brooks, William E. Colton and William E. Churchill, partners trading under the name and firm of "Brooks, Colton Co." and the judgment was in the name of Brooks. Colton Co,: Held that this was a variance, for which the judgment might have been reversed at common law, but the error was cured by our statute of amendments, Rev. St. ch. 3. Sec. 5.
4. A purchaser of land at an execution sale gets a good title, although the sale was made on a Tuesday or Wednesday of the week, on the Monday of which the writ was returnable, but was not returned.
5. A deed, after reciting a sale of land by execution, proceeds thus: "In consideration, etc., the said P. R., sheriff, etc., doth hereby bargain, sell, alien, enfeoff, convey and confirm with the said James T. Brooks, etc., their heirs and assigns, etc., to have and hold the same to the said, etc., their heirs and assigns": Held, that the use of the word with does not affect the sense or operation of the instrument: as, upon the context, it is evident between or with whom the contract is, and by and to whom the estate is conveyed.
APPEAL from the Superior Court of Law of BUNCOMBE, at Special Term, in February, 1850, Caldwell, J., presiding.
N.W. Woodfin and J. G. Bynum for plaintiff.
J. Baxter and Gaither for defendant.
The lessors of the plaintiff set up a title by virtue of a (322) sheriff's sale under a judgment and execution against the defendant, Ratcliff. By the transcript of the record it appeared that the action was debt by James S. Brooks, William E. Colton and William E. Churchill, partners trading under the name and firm of "Brooks, Colton Co.,"upon a bond given by the defendant to "Brooks, Colton Co.," and that a fieri facias was issued thereon, running also in the name of "Brooks, Colton Co.," by virtue of which the sale was made under which the plaintiff claims. For that variance or defect the counsel for the defendant insisted he was entitled to a verdict; but the court held otherwise. The plaintiff then gave in evidence the return of the sheriff on the execution, that on 4 October, 1843, he sold the premises to the plaintiffs in the said execution, and also a deed from the sheriff, dated 18 September, 1846, to James S. Brooks, William E. Churchill and William M. Colton and Eli Colton, in which is recited the levy of the execution and the sale of the premises to James S. Brooks, William E. Colton and William E. Churchill, copartners under the firm of Brooks Colton Co., and that, afterwards, the said William E. Colton died and left surviving him the said William M. Colton and Eli Colton, who were the only children and heirs at law of the said William E. Colton, deceased; and then the premises are conveyed therein to the said four persons, James S. Brooks, William E. Churchill and William M. Colton and Eli Colton in fee. After those recitals and stating the price bid and the payment thereof, the deed proceeds thus: "In consideration, etc., the said P. R., sheriff, etc., to have and to hold the same to enfeoff, convey and confirm with the said James S. Brooks, etc., their heirs and assigns, all, etc., to have and to hold the same to the said, etc., they heirs and assigns." By reason of an alleged defect in the deed in using the word "with" instead of "to" in the conveying part, the counsel for the defendant insisted that it did not pass the title to the lessors of the plaintiff. (323) But the court held to the contrary. The defendant then called as a witness the sheriff who made the sale; and he deposed that he did not sell on the first Monday of October, 1843 (which was the return day of the execution), but that, at the request of the defendant, he postponed the sale from Monday until Tuesday, and again from Tuesday to Wednesday of that week, and that on this last day the sale was made. The counsel for the defendant thereupon insisted that if that testimony was true, the said sale was void; but the court held that it was, nevertheless, valid. The counsel for the defendant thereupon excepted to the opinions of the court upon those several points. The counsel for the defendant then insisted that, forasmuch as there was no evidence, besides the recitals in the sheriff's deed, that William E. Colton had died or that William M. Colton and Eli Colton were his heirs, the plaintiff could not recover.
The court gave no opinion thereon to the jury, but, by the request of the counsel in the cause, the point was reserved; and thereupon a verdict was taken for the plaintiff, subject to be set aside and a nonsuit entered if the court should be of opinion on that point for the defendant; otherwise, judgment to be entered on the verdict. Afterwards the court set the verdict aside and ordered a nonsuit, and the plaintiff appealed, and then the defendant appealed also.
Upon the point reserved the case of Testerman v. Poe, 19 N.C. 103, and those referred to in it are direct authorities against the judgment. The sheriff may rightfully convey to the assignee of the purchaser, and it is not (324) material whether he be assignee by contract or by law. But, in truth, that is a matter with which the debtor in the execution has no concern, it being altogether between the sheriff, the bidder and the alleged assignee. In this case, indeed, the acquiescence by the sheriff and two of the partnership which purchased the land, jointly, with two persons purporting to claim as the children and heirs of the other partner, furnishes a presumption of the existence of those facts, since, otherwise, it would be against the interest of the supposed survivors thus to take the deed. But our opinion does not go on that ground alone, nor even chiefly. It proceeds on the broader one, that the objection is not one which the defendant has a right to raise. It was, therefore, erroneous to set aside the verdict, and there ought to have been judgment on it for the plaintiff, according to the agreement of the counsel. Consequently, that judgment must now be given here.
It will be thus perceived that the defendant has precluded himself from taking advantage of any error which might have been committed in ruling the other points against him. For, although a plaintiff may, doubtless, appeal from a judgment for him, if it be, for example, for less than he was entitled to, yet we do not see how a defendant can bring a writ of error or appeal upon a judgment in his favor, since it is of no consequence to him upon what ground he is discharged. In cases, therefore, of verdicts subject to the opinion of the court, all the points on which the party means to insist ought to be reserved. If one of the parties cannot have that done in respect to a question on which the presiding judge inclines against him, he ought not to consent to such a verdict, but peremptorily claim that an opinion shall then be given to the jury, as he has a right to do. By consenting that the judgment shall depend on this or that particular question, all others are necessarily taken to be given up. These observations are made to prevent an (325) oversight of the kind in future; for it so happens that in the present case the opinion of this Court concurs on each point with that given against the defendant in the Superior Court, and therefore he suffers no prejudice from the manner in which the case was brought up.
There is no variance between the judgment and execution, both being in the name of the firm of "Brooks, Colton Co." There is no doubt such error in the judgment would have been cause for reversing it at common law. But the statute of amendment cures it by the provision that no judgment shall be reversed for any mistake in the name of any party or person when the correct name has been once rightly alleged in any of the pleadings or proceedings. Rev. St., ch. 3, sec. 35. Wall v. Jarrott, 25 N.C. 42. If the judgment could not be reversed, the execution which confirms to it must, of course, be supported. It is said, indeed, that there was no judgment rendered in the action of debt. But we must hold to the contrary. First, that objection was not taken on the trial. If it had been, it would have been untenable, as we have had many cases in which it was held that although the judgment be not formally entered, yet that, upon a verdict which, connected with the pleadings, authorized a judgment, one shall be intended and the minutes be taken for the judgment, if a formal entry could be made up from them. Barnard v. Etheridge, 15 N.C. 295. Gibson v. Partee, 19 N.C. 530. The courts, being aware of the indulgence which counsel and attorneys extend to each other upon these parts of their duty, are obliged to admit such inducements in support of rights derived under judicial proceedings.
The act, which requires sales to be made at the courthouse on the same Monday of each month on which the court of the county sits, expressly authorizes the sheriff to postpone (326) the sale from day to day for any of the reasons mentioned in the act; and it has been held that in respect to the postponement of the sale the act is directory, and, therefore, that the purchaser is not bound to see that the officer complained with his duty in that respect, any more than in duly advertising, or selling all the personalty before offering the land. Hence a purchaser on Tuesday or Wednesday gets a good title; and it is settled that he does so, although his purchase be on those days of the week on the Monday of which the writ was returnable, but was not returned. Pope v. Bradley, 10 N.C. 16; Lanier v. Stone, 8 N.C. 229; [ 8 N.C. 329] Mordecai v. Speight, 14 N.C. 428.
Upon the remaining point, as to the effect of the use of the word "with," in the conveying clause of the deed, the Court is of opinion that it is an inaccuracy which does not affect the sense or operation of the instrument, as upon the context it is evident between whom or with whom the contract is, and by and to whom the estate is conveyed. On the whole case, therefore, the judgment must be reversed; and the Court, proceeding to give such judgment as the Superior Court ought to have given, the verdict must be reinstated and judgment rendered thereon for the plaintiff, in conformity to the agreement between the parties.
PER CURIAM. Judgment reversed for the plaintiff.
Cited: Carson v. Smart, 34 N.C. 371; Cobb v. Hines, 44 N.C. 347; Woodley v. Gilliam, 67 N.C. 239; Holmes v. Marshall, 72 N.C. 40; Maynard v. Moore 76 N.C. 164; Mayers v. Carter, 87 N.C. 148.
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