Supreme Court of North Carolina, 1875

Smith v. . Smith .

Supreme Court of North Carolina · Decided January 5, 1875 · Pearson

72 N.C. 228

Counsel

Stallings , for defendants. Kornegay , contra, insisted: 1. The title of defendant in the execution, passes to the purchaser by the sale, from the time of the sale; and no subsequent sale will affect his title for the reason there is no title in the defendant to sell. Bell v. Hill , 1 Hayw. 95, decided in 1794. See 85th page. 2. In Ricks v. Blount , 4 Dev. 128, the Court say the rule laid down in Bell v. Hill , has never been questioned. The title passes to the first vendee and can never be defeated, but is valid for every purpose. 3. The same doctrine is laid down again in Smith v. Spencer , 3 Ired. 258; Mardre v. Felton , Phil. 279. 4. The Stay law of 1866 and also of 1868, unconstitutional. Jacobs v. Smallwood , 63 N.C. 112 , and cases following. See also 8 Jones, 366. 5. The priority of the lien of execution, as between creditors is of no moment, as it respects the title of purchasers. Such matters only govern the application of the proceeds of the sale. Woodly v. Gilliam , 67 N.C. 237 . In this case the marshal and sheriff both sold the same day; the marshal selling first. Isler v. Moore, ibid , 74. 6. A sheriff, who advertises a sale of land, levied upon under execution, to take place on Monday, has a right, after postponement from day to day, to sell on Friday. Wade et al . v. Saunders , 70 N.C. 270 . 7. Where ven. ex . and fi. fa . was returned "no sale on account of Stay law," held that such was not a due return. Aycock v. Harrison , 63 N.C. 145 .

Opinion of the Court

Pearson, C. J.

This case is governed by the law, as it was declared to be, before the adoption of the C. C. P. So the question as to how far the title of a purchaser of land at a sheriff’s sale, may be effected by a fair docketed judgment, is not presented. Before the adoption of the 0. 0. P., no rule of law was more clearly settled than the rule, that a purchaser at *231 a sheriff’s sale (the judgment and execution being regular) acquired tke title of the defendant in the execution. Any contest among the judgment creditors, who claimed priority of lieu, effected merely the fund raised by the sheriff’s sale, and left the purchaser secure in his title. 1 will not take the trouble to make a “ rehash ” of the settled principles upon this subject, but will content myself by making a reference to the well digested brief of the plaintiff’s counsel, filed in the case, wherein he gives references to all of the cases upon the subject ; and will leave the subject as to how for the law has been changed by the C. 0. E., in respect to the title acquired by the purchaser under the first sale, made by authority of judicial process to be settled! when the point is presented by the facts of the case.

There is no error.

Pee Cükiam. Judgment affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.