Opinion
August Term, 1849.
1. Where a venditioni exponas has issued and the land mentioned in it has been sold, another venditioni exponas cannot issue, but if it does, it is invalid and the purchaser under it acquires no title. The proper execution, if a balance of the judgment is unpaid, is a fi. fa.
2. Where a defendant in an execution is sued in ejectment by the purchaser under that execution, he is not prevented from contesting the right to recover, unless the execution was a valid one.
APPEAL from the Superior Court of Law of BUNCOMBE, at Special Term, in July, 1849, Caldwell, J., presiding.
On the trial of this ejectment the lessor of the plaintiff offered in evidence a judgment of a justice of the peace, at the instance of one Poor, against the defendant, an execution thereon and a levy on land endorsed, then a memorandum on the docket of the County Court, in these words, "Order of condemnation," then a venditioni exponas and a sheriff's deed, and proved the defendant in possession. In behalf of the defendant it appeared that the said tract had been sold, some time before the sale of the lessor, under a venditioni exponas that had previously issued on the same judgment and proceedings, and had been purchased by one John Davis, to whom the sheriff had executed a deed for the said land of older date than that under which the plaintiff claimed. For the defendant it was insisted that the second sale was void. Other points were made, but it is not necessary to state them.
A verdict was taken for the plaintiff, subject to the opinion of the court. It was agreed that the verdict should be set aside and a nonsuit entered in case the court should be with the defendant on the questions reserved, or either of them. The court directed the verdict to be set aside and a nonsuit entered, from which judgment the plaintiff appealed. (38)
J. W. Woodfin for plaintiff.
Avery for defendant.
It is only necessary to notice one objection, as that is fatal to the plaintiff's right to recover. The lessor is a purchaser at a sheriff's sale, under a venditioni exponas, issuing upon a constable's levy. The land had been before sold under a venditioni exponas issuing upon the same levy, and one Davis had become the purchaser and taken the sheriff's deed. This rendered the levy functus officii, and there was no authority to issue the second venditioni exponas under which the lessor purchased. As the price given by Davis did not satisfy the debt, a judgment might have been taken in the County Court, upon which a fieri facias might have issued.
The principle that the debtor is not at liberty to resist the recovery in ejectment by the purchaser at a sheriff's sale, does not apply, because the lessor has not shown himself to be a purchaser within the meaning of that rule. Such a purchaser must show a valid execution. The lessor has failed to do so in this case, and is not entitled to the rights of a purchaser at a sheriff's sale.
PER CURIAM. Judgment affirmed.
Cited: Smith v. Fore, 46 N.C. 490; Peebles v. Pate, 86 N.C. 440; S. c., 90 N.C. 353, 4.
(39)