Craven County NcArchives Court.....Bryan, Vs. Brown 1811-18 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 12, 2008, 11:59 pm Source: North Carolina Reports Written: 1811-18 July Term 1818. Doe on Demise of BRYAN v. BROWN. From Craven. An execution will not protect property in the hands of the purchaser, if it issued without any authority; and in ejectment the purchaser who claims under the sheriff's deed must show a judgment as well as an execution. EJECTMENT. Harvey Bryan died seized in fee of the land described in the plaintiff's declaration; he devised it to his son, John Council Bryan, the lessor of the plaintiff, who is still an infant. The defendant claimed title to the land under a deed made to him by the Sheriff of Craven County, who sold the land by virtue of an execution issuing from Jones Superior Court. It appeared from the record of Jones Court, which made part of the case, that a writ had issued against Nathaniel Tisdale and Dorcas Bryan, executors of Hardy Bryan, at the instance of William Coombs, to which the defendants, among other things, pleaded fully administered, and a jury found that the defendants had fully administered, and on the other issues found for the plaintiff, assessing his damages to £125 and costs. The clerk of the court thereupon issued a paper-writing to the sheriff of Craven, commanding him to summon John Council Bryan, the heir of Hardy Bryan, deceased, by Dorcas Bryan, his guardian, to be and appear at the next term of the court, to show cause why he should not be made defendant in the action brought by Coombs, and why there should not be judgment and execution against him. On the return of this paper endorsed "Made known," the clerk docketed it as a sci. fa., and the entry made was "judgment by default according to sci. fa." It also appeared from the records that a jury had been impaneled in the suit, against Tisdale and Dorcas Bryan, but no judgment appeared to have been rendered. The clerk then issued a fi. fa. against the goods and chattels, lands and tenements of the heirs of Hardy Bryan, reciting therein that William Coombs had recovered against John Council Bryan. On this the sheriff levied on and sold the land in controversy to the defendant. Dorcas Bryan was the widow of Hardy Bryan and mother of John Council Bryan, but was never appointed his guardian by any court. Hall, J. If it be necessary for defendant to produce a judgment, (and I think it is), it will he difficult to find one on the record from Jones. A new kind of process has issued, calling upon John Council Bryan, by his guardian, to show cause why he should not be made party to an action of debt commenced by William Coombs; on this a judgment is taken "by default, according to sci. fa.," thereby meaning the process just spoken of a process which the clerk had no right to issue and on which no person could have a right to enter any judgment. Further, it is admitted that Dorcas Bryan was not the guardian of John Council Bryan; he was, therefore, not a party to the proceeding in court, had they been perfectly regular; her being a defendant in the original suit as an executrix does not alter the case; she was not on that account bound to protect the interest of the heir. I think the proceedings which have been had are altogether void, and that they cannot be made to serve the purposes of a regular judgment or. indeed, of an irregular one. Anonymous, 2 N. C., 73. But suppose that a judgment need not be shown by the defendant: it is taken for granted, and the strong presumption is that there is one; that presumption, while it lasts, is sufficient perhaps for the person claiming under the execution, but, like other presumptions, surely it may be done away by proof. In the present case it is admitted that there is no judgment, unless the record produced show one. I think it will not do to say that an execution protects property in the hands of a purchaser, if a clerk thinks proper to issue it without any authority; this, it is possible, he may do fraudulently, and the person purchasing may purchase honestly; yet, if you say that in such case the purchase is good, you at the same time say that a person may be deprived of property without trial, hearing or notice. To such a doctrine I cannot assent. My opinion, therefore, is that the plaintiff is entitled to judgment. Daniel, J. In the suit which W. Coombs brought against Hardy Bryan's executors, the jury found that the defendants had fully administered the assets. Judgment was signed by virtue of the act of Assembly for £125. Laws 1784, ch. 11, sec. 2, directs that a scire facias shall issue summoning the heir and devisee to show cause why execution should not issue against the real estate for the amount of such judgment, and if judgment shall pass against the heir or devisee, execution may issue against the real estate of the deceased debtor in the hands of such heir or devisee, to satisfy the judgment. The instrument which is set forth as a scire facias in this record does not mention the suit against the executors, the fact of their having fully administered, nor does it state that any judgment for any amount had been signed by the plaintiff—it does not call on the heir to show cause why execution should not issue against the real estate to satisfy any judgment. The return of this instrument and the entry, "Judgment by default according to sci. fa.," was all a nullity; there never has been any recovery against the heir by William Coombs. It is said that the defendant being a purchaser at a sheriff's sale, was bound to look no farther back than the execution, as he was no party to the suit; that the execution having issued, a sale by the sheriff under it and a deed given vested the title in the purchaser. Lord Chief Justice De Gray, in delivering his opinion in Barker v. Braham, 3 Wills., 376, says: "A sheriff, or his officers, or any acting under his or their authority, may justify themselves by pleading the writ only; because that is sufficient for their excuse, although there be no judgment, or record to support or warrant such writ; but if a stranger interposes and sets the sheriff to do an act, he must take care to find a record that warrants the writ, and must plead it; so must the party himself at whose suit such an execution is made." In trespass against a sheriff, it is enough for him to show a writ returned, if returnable; but in trespass against the plaintiff himself or a mere stranger, they cannot justify themselves unless they show there was a judgment as well as an execution, for the judgment may be reversed. 1 Salk., 409; 12 Johns., 213. There being no judgment in the present case to warrant the execution, the defendant derived no title by his purchase. Per Curiam. There must be judgment for the plaintiff. Cited: Whitehurst v. Banks, post, 347; Ingram v. Kirby, 19 N. C., 23. Additional Comments: North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. Uzzell and Company, State printers and binders, 1910. 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