Opinion
(December Term, 1846.)
1. Where, in the county court, the suit was against three, and on an appeal to the Superior Court the judgment was only against one, without its appearing on the record what had been done as to the others: Held, that although the judgment in the Superior Court might have been erroneous or irregular, yet the judgment was good until reversed, and under an execution issuing on it the sheriff had legal authority to sell the property of the defendant against whom it issued, in conformity to such judgment.
2. A good execution in the sheriff's hands sustains a sale under it, though wrongly recited or not recited in the sheriff's deed.
3. A vested remainder or a reversion in slaves may be sold under a fieri facias, subject to the temporary right of a hirer or other particular tenant.
4. The bid of one person at an execution sale may be relinquished to another, who may take the sheriff's deed.
5. Where the purchaser of a slave has two different places of residence in two different counties the registration of his deed in either of those counties is sufficient.
APPEAL from HYDE Fall Term, 1846; Bailey, J.
Detinue for a slave, tried on the general issue. The plaintiff claimed title under an execution sale by the sheriff of Hyde and his bill of sale. One Joel McLean instituted an action of debt on a bond, in the county court or Orange, against the defendants Cason G. Spencer and Peleg Spencer, the administrators of Isaiah H. Spencer, deceased, and against Daniel Murray and John Buffalow. In that court judgment was rendered for the plaintiff against Spencer, who appealed to the Superior Court, and there a verdict and judgment were, in June, 1843, rendered for the plaintiff against Spencer's administrators for $1,610 debt, besides damages and costs, and a fieri facias issued thereon to the sheriff of Hyde, de bonis intestati, in the hands of the said administrators. There were also two judgments in Orange County Court in favor of (15) James Webb against Spencer's administrators, on which writs of fieri facias were likewise issued to Hyde County. The latter writs, however, did not name the persons, who were the defendants, as administrators of Isaiah H. Spencer, but commanded the sheriff to make the money "of the goods and chattels of Isaiah H. Spencer, deceased, in the hands of his administrators," and in other respects did not conform to the judgments. All the executions came to the hands of the sheriff of Hyde in July, 1843, who seized several slaves, of which the negro claimed in this action was one, and sold them, under the three executions, on 31 July, 1843, and on that day made a bill of sale for this slave to the plaintiff as the purchaser. The negro had in the beginning of 1843 been hired out by the administrators to a person in Hyde, for one year, and the hirer had the possession until the sale by the sheriff, when the negro was present; and after the sale the hirer again took him and kept him until the end of that year, and then the present defendant, claiming as one of the administrators of Isaiah H. Spencer, took the slave again, and, after a demand, refused to deliver him to the plaintiff, and this action was brought.
When the plaintiff offered in evidence the sheriff's bill of sale, the defendant objected to its competency for want of due registration. It was registered in Hyde County in November, 1844, and the defendant insisted that Hyde was not the proper county. In support of the objection he proved by witnesses that the plaintiff for several years before 1840 resided and kept a hotel in Raleigh, to which place he removed from a farm he owned in Hyde, and which he cultivated and occasionally visited; and that in 1840 the plaintiff went with his family to the farm in Hyde, and generally remained there until June, 1843. At the latter period the plaintiff went with his family again to Raleigh, where he had a dwelling, and the family remained in Raleigh, until the autumn (16) of 1844, and the plaintiff also remained there principally during that period, though he visited Hyde in the winter of 1843 and 1844. In November, 1844, the plaintiff resided and has continued to reside in Hyde exclusively. The court received the bill of sale in evidence.
In the bill of sale the executions in favor of Webb are alone referred to as being in the sheriff's hands, and no notice is taken of that of McLean. For that reason the defendant, insisting that Webb's executions were void because of their form and variance from the judgments, as before mentioned, prayed an instruction to the jury that nothing passed by the sheriff's sale and conveyance. But the court refused the instruction prayed for, and informed the jury that although Webb's executions were void, yet that the purchaser might get a good title if the sheriff sold under McLean's execution, notwithstanding that execution was not recited in the sheriff's deed. The defendant then further objected that the fieri facias of McLean was not valid because his suit was brought originally against Murray and Buffalow, as well as Spencer, and the record did not show in any proper manner that it had been determined as to Murray and Buffalow. By the transcript of the record of McLean's suit in Orange Superior Court it appears that in the transcript sent to that court from the county court, upon Spencer's appeal, it is not stated why the judgment was against Spencer alone, or how Murray and Buffalow were discharged from the suit; but that in the Superior Court Spencer's administrators alone appears as appellants and defendants, and the judgment was against them alone; and, moreover, that at March Term, 1846, the Superior Court of Orange (after reciting that the plaintiff McLean had entered a nolle prosequi in the county court as to Murray and Buffalow, and that the clerk of the county court had, by mistake, omitted to insert the same in the transcript sent to the Superior Court) ordered that the transcript in that court be (17) amended by inserting therein the nolle prosequi as to the proper period. Thereupon his Honor held that the writ of fieri facias in that case gave a valid authority to the sheriff to make sale.
The defendant then further gave evidence that the plaintiff was not the purchaser of the negro at the sheriff's sale, but that James Webb was, at the price of $459.99; and contended that, for that reason, the plaintiff could not recover. The plaintiff then gave evidence that Webb, immediately after he was declared the highest bidder and purchaser, transferred his bid to the plaintiff and directed the sheriff to make the bill of sale to him, and the plaintiff paid the price bid and received the deed at once. Thereupon the defendant insisted that the bid could not be thus transferred, and especially as the person who had hired the negro for the year 1843 was entitled to him during that year, and the possession was adverse to the sheriff and to Webb. But the court refused so to instruct the jury. There was a verdict for the plaintiff, and judgment, and the defendant appealed.
Shaw for plaintiff.
No counsel for defendant.
The opinion of the Court is that the judgment be affirmed. Nearly every point made by the exceptions has been repeatedly decided in this Court contrary to the argument of the defendant.
The amendment in the Superior Court of the transcript from the county court makes the judgment consistent with the record and right, as in our law all contracts are joint and several. But if the amendment had not been made, the sale would still have been good. The execution conformed to the judgment, which was against the administrators of Spencer alone. If there was error in any part of the proceedings, therefore, it was in the judgment. Now, error or irregularity in the (18) judgment of a court of competent jurisdiction, remaining unreversed, does not affect the execution or the sale under it. Smith v. Kelly, 7 N.C. 507. Hatton v. Dew, ibid., 260, establishes that a good execution in the sheriff's hands sustains a sale under it, though wrongly recited or not recited in the sheriff's deed.
A vested remainder or a reversion in slaves may be sold under a fieri facias, subject to the temporary right of a hirer or other particular tenant. Knight v. Leak, 19 N.C. 130. The possession of a hirer is, in truth, that of the general owner, and not adverse to him. Whitaker v. Whitaker, 12 N.C. 310. In Smith v. Kelly it was also ruled that the bid of one person may be relinquished to another, who may take the sheriff's deed; and the same doctrine was held in Testerman v. Poe, 19 N.C. 103.
The remaining question, upon the registration, is the only one of any novelty; and upon that our opinion accords with that of his Honor. The counsel for the plaintiff has, indeed, argued that the bill of sale is good without registration, as there is no creditor or purchaser in the case. But whether the sale of a sheriff stands upon the same ground with that of the owner himself, or whether the construction of the Rev. Stat., ch. 37, sec. 19, which reenacts section 7 of the act of 1784 without its preamble, is to be the same as that of the original act with the preamble, the Court does deem it necessary now to decide; for we hald [held] that the deed was properly registered in Hyde. The statute, Rev. Stat., ch. 37, sec. 20, requires the conveyance of a slave to be registered in the county where the purchaser resides, if he be in possession of the slave; but if, under any special agreement at the time of sale, the seller shall remain in possession, then it shall be registered in the county in which the vendor lives. The act does not, in any case, requires a registration in more than one place. It is to be either in the county of the purchaser or the seller, but not in both, when they happen to be (19) different counties. If this be a case in which the registration is to be in the purchaser's county, we think the act has been complied with, because Hyde was his residence, or one of his places of residence. He, with his family, had been living on his plantation in that county continuously for about three years and up to the month before the purchase. That was certainly sufficient to gain him a domicil there. Nothing appears from which it is to be inferred that the plaintiff meant to give up that domicil. At most, it may be said that he acquired a residence in Raleigh by coming to his house there. That is not clear, since there is nothing to show how long he intended to remain up the country when he came. But suppose he intended to fix a residence in Raleigh: he might do that without giving up his previous residence in Hyde; and upon his death the court of either Wake or Hyde had jurisdiction in granting administration or probate of his will. In the same manner this conveyance might be registered in either of the counties as that of his residence; for, as before noted, the act does not require registration in two counties as to the same slave, and either county was a county of the plaintiff's residence. But the plaintiff here was not in actual possession of the slave, and, therefore, the case does not fall within the first provision of the section, which directs the registration in the county of the purchaser's residence. So that, at all events, Wake was not the proper county at any time after the deed was made. The case, indeed, is not literally within either clause of the section; for, strictly speaking, it cannot be said that there was a special agreement that the vendor should retain possession. That language is appropriate to a sale by the owner of a slave of the present property, and not to the sale of a reversion by a sheriff. But it is clear the Legislature must have intended that the sheriff's deed, in such a case, should be registered somewhere; and the purposes for which registration is required (20) are best answered by a registration in the county in which the slave was sold and the hirer and possessor of him lived. If not within the words of the latter part of the clause, the case then is within the spirit and meaning of it. In this case, indeed, it so happened that at the time of registering the bill of sale, November, 1844 (which was in due time under the act enlarging the period of registering deeds), the plaintiff had resumed his residence in Hyde as his exclusive residence; so that it was then the county both of the vendee and vendor, and must have been the proper county. In every point of view, therefore, the registration is sufficient.
PER CURIAM. No error.
Cited: Owen v. Barksdale, 30 N.C. 83; Hardin v. Cheek, 48 N.C. 138; Wade v. Pellitier, 71 N.C. 75.