Brunswick County NcArchives Court.....Hanson Kelly, Benj. Smith V. 1819
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File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 3, 2009, 6:48 pm

Source: Nc Reports
Written: 1819

Den on Demise of Benj. Smith v. Hanson Kelly

From Brunswick

November Term 1819

This Court will award a writ of certiorari. An appeal bond, with a statement 
of the case made out by the presiding Judge, was filed in this Court, but 
there was no transcript of the record certified by the Clerk under the seal of 
the Court in which the appeal had been granted. A diminution of the record 
being suggested, a certiorari was awarded, such a writ being necessary for the 
exercise of the powers given to this Court.

The Sheriff returned on a fieri facias, that the Bank of New Bern purchased 
the lands in question. A. upon the trial of an ejectment for these lands, gave 
in evidence a resolution of the President and Directors of the Bank, 
requesting the Sheriff to make the deed to him, and then gave in evidence the 
deed. Held, that this deed is good to pass the title as against the Defendant 
in the execution, notwithstanding the Sheriff's return; for the purchaser's 
title is not dependent upon any special return the Sheriff may make on the 
execution. The law permits one person to bid off property at a Sheriff's sale, 
and then relinquish his bid to another.

In this case an appeal bond, with the statement of the case made out by the 
presiding Judge, was filed in this Court, but there was no transcript of the 
record sent up certified by the Clerk under the seal of the Court. A 
diminution of the record was suggested, and a motion made that a writ of 
certiorari be issued to the Clerk of Brunswick Superior Court of Law. This 
motion, after much consideration, was allowed: for that the writ moved for was 
necessary in this instance for the exercise of the powers given to this Court. 
The Court cannot proceed but upon the whole record, and they had here 
conclusive proof of an appeal having been prayed for and granted, from there 
being an appeal bond. The certiorari issued, and the record was certified.

The case was that Benjamin Smith, the lessor of the Plaintiff, being seised of 
the lands in question, judgment was recovered against him by the Bank of New 
Bern, execution issued, and was levied on the lands, and the Sheriff's return 
on the execution set forth that the Bank of New Bern had, at the sale of the 
lands under the execution, become the purchaser. The Sheriff executed a deed 
to the Defendant, who, upon the trial, gave this deed in evidence, and with it 
a resolution of the President and Directors of the Bank of New Bern, directing 
the Sheriff to make the deed to him. The Court charged the Jury that the 
Plaintiff was entitled to recover; for although it appeared that the lands had 
been seized and sold by the Sheriff, yet it did not appear that the legal 
title to the lands had been divested, out of Smith, inasmuch as the Sheriff, 
by virtue of his office, could convey that title only to such person or 
persons as the record shewed had purchased the lands. Here he had returned on 
his execution that the Bank of New Bern had purchased the lands, and the deed 
had not been made pursuant to this return; that if the Sheriff executed a deed 
to the Defendant in consequence, of the resolution of the President and 
Directors of the Bank, he did it not as Sheriff, but as agent, and before the 
deed could be operative, it must shew there was title in the principal, and 
that proper authority had been given to the agent to make the deed. The Jury 
found for the Plaintiff. A rule for a new trial was obtained, and it being 
discharged by the Court, the Defendant appealed.

Gaston, for the Plaintiff.

Taylor, Chief-Justice: The Defendant, in producing a judgment against Smith, 
an execution, a levy upon property liable thereto, and a deed from the 
Sheriff, has established a title in himself; because he has thereby shewn a 
lawful authority in the Sheriff to sell, and the due exercise thereof.

If a judgment be erroneous, and be afterwards set aside or reversed, the title 
of an intermediate bona fide purchaser at a Sheriff's sale cannot be affected: 
nor in an ejectment against a purchaser at a Sheriff's sale can the regularity 
of an execution be questioned. It would be inconsistent then to make the 
purchaser's title dependent upon any special return the Sheriff makes on the 
execution; more especially when such return is contradicted by his deed. A 
return is nothing but the Sheriff's answer relative to that which he is 
commanded to do by the writ; and is intended to inform the Court of the truth 
of that alone which it concerns them to know. Third persons ought not to be 
injured by a return, because the Sheriff has departed from its proper object, 
and mingled with it irrelevant matter.

It is not necessary to express any opinion as to the effect of a return in 
point of evidence of any fact stated in it; for however conclusive it may be 
in that view, it cannot be more be than a fact stated and agreed to by the 
parties in the case. So that although the return states the Bank to have 
become the purchaser, yet a fact agreed is, that the Sheriff's deed to the 
Defendant was made with the consent of the Bank. Taking the facts from the 
case and the return, the truth is, that the Bank bid off the property, and 
relinquished the bid to the Defendant, in which there is nothing unlawful. 

There must be a new trial.


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