Opinion
May Term, 1819.
From Cumberland.
In ejectment for lands purchased at a Sheriff's sale under execution, the Plaintiff need shew as against the Defendant in execution only, 1st. a judgment; 2d. an execution, giving to the Sheriff authority to sell; and 3d. the Sheriff's deed.
If, therefore, in the Sheriff's deed, there be a mistake in reciting the judgment, or the execution, or the return endorsed on the execution, it is immaterial, if it appear that there was a judgment, and an execution issued thereon, giving to the Sheriff authority to sell.
The lessor of the Plaintiff claimed the land in question under a deed made to him by the Sheriff of CUMBERLAND county. He gave in evidence a judgment obtained at December term, 1809, of Cumberland County Court, by Dew and Barnes against the Defendant and an execution tested of March term, 1810, on which was indorsed the following return, viz. "Levied on 640 acres of land, the upper side of Little River, the land where P. Hodges lives, about 2000 acres, and not sold, by direction of the Plaintiffs." He then gave in evidence a writ of venditioni exponas, issued in the same case, commanding the Sheriff to sell the lands levied on. This writ was tested of June Term, 1810, and the Sheriff had returned on it, that after advertising the lands, he had sold them at the court-house on the first day of September, when James Atkins became the purchaser. The Sheriff's deed was dated 30 April, 1810, and was made to James Atkins and John Thames. It recited a judgment in favor of Dew an Barnes, against Philemon Hodges and his securities, and an execution issued in pursuance of said judgment, authorizing said sale. It then recited that James Atkins and John Thames became the purchasers at the sale made by the Sheriff, at a price different from that set forth in the Sheriff's return on the writ of venditioni exponas.
The Court was of opinion, that the Plaintiff could not recover, because he had not produced in evidence (547) the judgment and execution recited in the Sheriff's deed, but had produced a judgment and execution against Philemon Hodges only; and because the Sheriff's deed was dated on 30 April, 1810, whereas it appeared by the Sheriff's return, that the lands were not sold till the first day of September following; and lastly, because the return on the writ of venditioni exponas shewed that James Atkins became the purchaser at the sale, and not he and John Thames, and that the price at which Atkins purchased was different from that which the deed recited was paid by him and Thames. The Plaintiff submitted to a nonsuit, declaring that he was ready to prove that the land described, in the declaration was included in the levy, sale, and Sheriff's deed, and had been conveyed by Atkins and Thames to his lessor. A rule for a new trial was obtained; which being discharged, the Plaintiff appealed.
This case comes within the principles which governed Smith v. Kelly, ante, 507. The nonsuit must be set aside and a new trial granted.
Cited: Davis v. Evans, 27 N.C. 532; Lyerly v. Wheeler, 33 N.C. 290. (548)