Bertie County NcArchives Court.....Mizel Et Al, Aquilla Oxley V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 30, 2009, 2:15 pm

Source: Nc Reports
Written: 1819

Den on demise of Aquilla Oxley v. Mizel et al

From Bertie

May Term 1819

In an action against an executor, the Jury find that he has fully 
administered. A scire facias issues against the devisees, to shew cause why 
the Plaintiff shall not have judgment of execution against the lands devised. 
The sci. fa. is returned "executed" generally. The devisees plead to the sci. 
fa. and a collateral issue is made up between them and the executor, to-
wit: "whether the executor has fully administered?" This issue is found in 
favor of the executor, and the Plaintiff has judgment of execution against the 
lands devised. The execution is levied upon lands in the hands of one of the 
devisees who was a minor, and has no guardian, and who appeared and made 
defence to the sci. fa. by attorney, and not by guardian. The lands are sold 
and purchased by a stranger. His title is good; for 

Whatever irregularity there may be in the judgment, it is the act of a Court 
of competent jurisdiction, unreversed and in force when the sale was made.

The execution gave the Sheriff authority to sell, and though the judgment were 
afterwards reversed, or set aside, the title of an intermediate purchaser at 
the Sheriff's sale, shall not be prejudiced.

The same principle applies to an error in the execution, the regularity of 
which cannot be questioned in an action against a purchaser at a Sheriff's 
sale.

An execution issuing after a year and a day, is only voidable at the instance 
of the party, against whom it issues.

If a writ be not void, however irregular it may be, the purchaser, being a 
stranger, will gain a title under the Sheriffs sale.

On the trial of this ejectment, the lessor of the Plaintiff claimed title to 
the lands in question, as devisee of John Oxley, his father. The defendant 
claimed title under a deed executed by the Sheriff of Bertie; to support, 
which deed they produced the record of the County Court of Bertie, from which 
it appeared that one Stephen M'Dowel had brought an action of assumpsit 
against the executor of John Oxley, on the trial of which, the Jury found that 
the Defendant's testator did assume, and they assessed damages: they further 
found that the Defendant had fully administered, and had not assets of his 
testator to satisfy any part of the damages of the Plaintiff. The Plaintiff 
then sued out a scire facias against the devisees of the testator, of whom the 
lessor of the present Plaintiff was one, to shew cause why he should not have 
judgment of execution against the lands devised. This scire facias was 
returned by the Sheriff "executed," generally. The devisees appeared by an 
attorney of the Court, and pleaded to the scire facias, "that the executor had 
assets to satisfy the damages recovered by the Plaintiff." An issue was made 
up between the devisees and executor, to try whether the executors had fully 
administered. This issue was found in favor of the executor; whereupon the 
Court gave judgment of execution against the lands devised for the damages and 
cost. A fieri facias was issued, and the lands in the hands of the present 
lessor of ihe Plaintiff, were levied on and sold by the Sheriff. The 
defendants claim under the deed which the Sheriff made in pursuance of this 
sale.

The lessor of the plaintiff then proved, that during all these proceedings he 
was a minor, under the age of twenty one years and had no guardian. The record 
shewed, that to the scire facias he appeared and made defence by attorney, and 
not by guardian; that the scire facias issued against him, and was served on 
him, as a person of full age.

On this is statment of facts, the presiding Judge directed the Jury to find 
for the Defendant. A rule for a new trial was obtained on the ground of 
misdirection by the Court. This rule was discharged, and the lessor of the 
Plaintiff appealed.

Taylor, Chief-Justice: Whatever irregularity there may be in the judgment on 
which the execution issued, it was the act of a Court of competent 
jurisdiction, and was unreversed and in force, when the sale was made to the 
Defendant. The execution gave the Sheriff full authority to sell, and though 
the judgment should be afterwards reversed or set aside, yet the title of an 
intermediate purchaser at the Sheriff's sale, cannot be prejudiced. "The sale 
shall stand, otherwise none will buy any thing upon execution." Manning's 
case, 8 Co. The same principle applies to an error in the execution, the 
regularity of which, it has been held, could not be questioned in an action of 
ejectment against a purchaser under a Sheriff's sale. And an execution issuing 
after a year and a day, without a revival of the judgment by scire facias, is 
only voidable at the instance of the party against whom it issues. 8 John, 
361, 13 Id. 97. If the writ be not void, however irregular it may be, the 
purchaser will gain a title under the Sheriff's sale. 1 Ves. 195. 1 Maule & 
Selwyn, 425. The law on this point is considered to be settled; and the Court 
are of opinion, that the instructions of the Judge to the Jury were entirely 
correct. 

The rule for a new trial must be discharged.

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