Opinion
December Term, 1826.
From Moore.
An agent cannot be appointed by parol to convey real estate for his principal. But where a levy on personalty was made under a fi. fa., and lands, in lieu thereof, were sold by the sheriff, without levy or advertisement, at the request of the debtor, and bid off by A. and B paid the sum bid to the sheriff under a parol agreement that the sheriff should convey to him: Held, that as an official act of the sheriff, his deed passed the estate.
IN 1822 Isham Sheffield obtained judgment and sued out execution thereon against Hussey, the defendant's intestate, one Garner, and others. The execution was levied by McNeil, the sheriff, upon the personal property of Hussey, who was the principal debtor. On the day of sale, at the request of Hussey, the sheriff sold his real estate, which had not been levied on, in lieu of the personal property, and the same was purchased by Garner, at a sum greater than the amount of the judgment, and he being then unable to pay, the sheriff indulged him until the term at which the execution was returnable, at which time the plaintiff paid to the sheriff the amount of Garner's bid, upon an agreement between the plaintiff, Hussey, and Garner, that the sheriff, or Hussey, or both, as the plaintiff (2) might prefer, should convey to him. The plaintiff accordingly took possession of the lands, and the sheriff executed to him an official deed in the usual form. Afterwards, the defendant's intestate dying without having released or conveyed, and the plaintiff supposing that the deed from the sheriff conveyed no title, brought this action to recover back the money paid.
On the trial in the court below, his Honor, Judge Norwood, was of opinion that the deed from McNeil, whether he were considered as sheriff, acting under the authority of the writ, or as the agent of the defendant's intestate, under the parol agreement, was sufficient under the circumstances to pass the title, and directed a nonsuit, whereupon the plaintiff appealed.
The deed executed by McNeil, the sheriff, to the plaintiff, being an official act, conveyed a good and valid title. Smith v. Kelly, 7 N.C. 507. In the other view of the case taken by the judge, supposing the sheriff did not act officially, but as the agent of Hussey, I do not concur, unless McNeil had been duly authorized, by a written power of attorney, to execute the deed for him. An authority by parol would not be sufficient, because titles to land must be evidenced by written conveyances. I think the nonsuit ought not to be set aside.
PER CURIAM. Judgment affirmed.
Approved: Testerman v. Poe, 19 N.C. 103; Ward v. Lowndes, 96 N.C. 367.
(3)