Edgecombe County NcArchives Court.....Arthur Dew, Hattan & Wife V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 30, 2009, 2:51 pm

Source: Nc Reports
Written: 1819

Den on demise of Hattan & Wife et al v. Arthur Dew

From Edgecombe

May Term 1819

An execution issued from February term 1807, on a judgment recovered in the 
County Court, and was returnable to May term following. The execution was 
continued, and by virtue of the one which issued from May term, 1808, the same 
being on 9 May, and made returnable to August term following, the land in 
dispute was levied on and sold, and the lessor of the Plaintiff became the 
purchaser. Judgment was recovered against the same Defendant before a Justice 
of the Peace, and the execution which issued thereon was levied by a Constable 
prior to the levy made of the first execution by the Sheriff. The order of 
sale was made by County Court at August term, 1809. A venditioni exponas was 
issued, by virtue of which the land was sold, and the Defendant became the 
purchaser. The deed to the lessor of the Plaintiff recited that the sale, 
under which he claimed, was made by virtue of the execution which issued from 
February term of the County Court 1807; whereas in truth, it was not made 
until 27 July, 1808. The Plaintiff is entitled to recover the lands: for,

1. The lien created by the teste of the execution, which issued 9 May, 1808, 
was not destroyed by the levy afterwards made by the constable; particularly 
as there was no sale under that levy until a levy and sale under the first 
execution.

2. The erroneous recital in the deed to the lessor of the Plaintiff, does not 
affect the operation of the deed. The recital is not an essential part of the 
deed; its use is only to explain more fully the intention of the parties, or 
to serve us a reference in the future investigation of the title. It affirms 
no fact, and can never amount to an estoppel. The execution gave the Sheriff 
authority to sell, and although his power be incorrectly set forth in the 
deed, yet the deed is good.

And it would seem that the Sheriff may be admitted a witness to prove the 
mistake, that he sold under the execution of 1808, and not under that of 
February, 1807.

This case was sent up to this Court upon the following special verdict, to-wit:

"A judgment was obtained against Hattan, in Nash County Court, at February 
Sessions, 1807. Execution issued thereon, and was returned to May, 1807, 
without any levy having been made. A second issued, tested May, and returnable 
to August term, 1807, on which was a return, "Rec'd Clerk's and Sheriff's 
fees" - And the execution directed to the Sheriff of Edgecombe, tested the 
second Monday of May, 1808, and returnable on the second Monday in August 
following was issued, and returned with the following endorsement, "Rec'd 40s. 
in part of this judgment, by sale of land: no more property to be found in my 
County" — The Sheriff levied the last mentioned execution on 8 or 9 June, 
1808, and sold by virtue of it on 27 July following, the land in question, 
when Coleman, one of the lessors of the Plaintiff, became the purchaser, and 
the Sheriff executed to him a deed. But the deed recites that a sale was made 
by virtue of an execution issued from Nash County Court, tested the second 
Monday of February, 1807. Hattan acquired his interest in the land by marrying 
his wife, and his marriage took place between the time of the judgment 
rendered, and the issuing of the execution on the second Monday of May, 1808. 
This is the title set up by the lessors of the Plaintiff.

"As to the title set up by the Defendant, the Jury find, that on 13 May, 1808, 
a Judgment was obtained, and execution issued thereon, against the goods and 
chattels, lands and tenements, of Hattan. A Constable, to whom it was 
directed, levied it eight or ten days before the sitting of Edgecombe County 
Court, and returned it to that Court. It was entered on the appearance docket, 
at August term, 1808, and continued until August term, 1809, when an order of 
sale was made, and an execution tested the fourth Monday of August, 1809, and 
returnable to November term following, was issued, under which the land was 
sold, and the Defendant became the purchaser. The defendant is in possession; 
and if, upon this finding, the law be in favor of the lessors of the 
Plaintiff, the Jury find the Defendant guilty, and assess his damages to six 
pence and costs: If the law be for the Defendant, they find him not guilty."

Upon the trial, the Sheriff was admitted as a witness, to prove that he levied 
the execution which issued on the second Monday of May, 1808, on 8 or 9 June 
following, and sold the land in question, by virtue of that execution, on 27 
July. And upon his evidence, the Jury found these facts, as stated in the 
special verdict.

Upon this case, the Court were divided in opinion. Chief Justice Taylor and 
Judge Henderson being of opinion, that judgment should be rendered for the 
Plaintiff, and Judge Hall being of opinion, that judgment should be rendered 
for the defendant.

Taylor, Chief-Justice: The first execution against Hattan issued from February 
term, 1807, of Nash County Court, where the judgment was rendered: but the 
levy was made on the third execution, which bore teste the second Monday in 
May, 1808, and the Jury have found, upon the evidence of the Sheriff, that the 
levy was actually made on the 8th or 9th of June following. The Sheriff's 
deed, however, recites that the sale was made by virtue of the first 
execution; and as this recital is erroneous, the question is, Whether the deed 
shall operate to convey the land to the purchaser, Coleman? If a recital were 
an essential part of a deed, or if the land were conveyed according to the 
recital thus erroneously stating the levy, there would be some ground for the 
objection to rest upon. But the use of it is only to explain more fully the 
intention of the parties, or to serve as a reference in the future 
investigation of the title. It affirms no fact, and never amounts to an 
estoppel. Coke Lit. 352. b. Law, 33.

If one recite a former lease to have been made on such a day to J S, and then 
make a new lease, to begin after the end of the former lease, and mistake the 
date of the old lease, in this case, the deed is good, notwithstanding the 
mistake. Dyer 93, 160. If indeed, the property be described in the effective 
words of the conveyance, only according to the false description given of it 
in the recital, it will pass by the deed, as appears by the following case. If 
I grant to J S, all the lands in Dale which I purchased from J D, or which 
came to me by descent from J D, or, I give all my good's to J S. which I have 
as executor of J D. and, in truth, I have no such lands or goods, but I had 
them by some other means, or of some other person, in these cases, and by this 
mistake, the deed is void. But if I grant to J S, all my lands in Dale by 
name, as White acre, which I purchased of J D, and in truth, I purchased them 
of another, in this case, this mistake will not hurt the deed. Dyer 50, 87, 
376. As, then, it appears in this case, that the Sheriff was duly authorized 
to make the sale, although his power is incorrectly set forth in the deed, a 
majority of the Court are of opinion, the law arising on the special verdict 
is in favor of the Plaintiff.

Hall, Judge: The lien created by the teste of the writ of execution, which 
issued 9 May, 1808, cannot be destroyed by the levy afterwards made by the 
Constable, particularly as there was no sale under that levy until a levy and 
sale under the execution which first issued. In England, it is said that if 
the Sheriff execute the writ last delivered to him, before, the first, he 
shall be answerable himself for the debt due to the Plaintiff in the first 
execution. And of this he has no right to complain: because, as all executions 
are delivered to him, he may know which to execute first: But in this State it 
is otherwise. The Sheriff and Constables of a county, have each a right, in 
many cases, to levy and sell the same property; and it would not do to say, 
that one officer, executing a younger execution before an elder, in the hands 
of another officer, whether he knew of it or not, should be liable to the 
Plaintiff in the first. Whether purchasers under the younger execution would 
be protected, or whether the lien created from the teste of the first would 
subject properly so sold, it is not necessary to decide: because the property 
was here first sold under the execution that first issued. It is said, that 
the reason of altering the law in England by the statute of frauds, in making 
the lien commenced from the delivery, and not from the teste of the writ, was 
on account of purchasers claiming property bona fide purchased under younger 
executions, when there were older ones, the lien whereof reached back to their 
teste. 1 Term, 731. If this were the case, and the law has not been altered 
with us, it would seem that such purchasers would be obliged to yield to such 
lien, particularly when the two executions are in the hands of different 
officers, as in this case, and no remedy can be had against them. As to the 
first part of the case, my opinion is in favor of the Plaintiff. As to the 
other question, my opinion differs from that of my brethren, and I will 
briefly assign the reasons which support my opinion. It is enacted by the 27. 
Hen. VIII, ch. 16, sec. 1, "that no lands or hereditaments shall pass, whereby 
any estate of inheritance or freehold shall be made, by reason of any bargain 
and sale, except the bargain and sale be made by writing and enrolled." It is 
also enacted by our act of 1715, ch. 38, sec. 5, that no conveyance of lands 
shall be good and available in law, unless the same be acknowledged or proved, 
and registered; and that all deeds so done and executed shall he valid and 
pass estates in lands, &c. Here it appears that lands cannot pass from one 
person to another without writing; and it is expected that every one can shew 
a written title to land of which he is the proprietor. It is true, that the 
Legislature have taken away the remedy of claimants, where they have not 
asserted their claims within the time prescribed by law, and vested the title 
in those who during that time have been in quiet possession. But these acts do 
not interfere with the requisite, that titles to land must be in writing; and 
where there is no possession relied upon, there must be no chasm in those 
titles; there must be no link wanting. Now the Plaintiff does not depend upon 
possession for a title. Does he shew a written one? He shews a deed from the 
Sheriff, in which the Sheriff sets forth the authority he had for executing 
it, to-wit, an execution hearing date the second Monday of February, 1807. 
Were that execution shewn, and the judgment on which it issued, the 
Plaintiff's title would rest as far as it could upon written evidence. But it 
is admitted that the land was not sold under that execution: yet parol 
testimony is admitted to shew that it was sold under another execution. This 
is not only connecting the deed and execution by parol testimony, but 
expressly contradicting the very deed under which the Plainliff claims, and to 
which he is a party. If this be allowable, who can find out in whom title to 
land is, by searching records? It is true it appears, from the testimony 
adduced, that the land was sold under another execution issuing from the same 
judgment. But if that can be shewn, why not go a step further, and shew that 
it was sold under an execution issuing from another judgment between different 
parties? Would not this give rise to much confusion and inconvenience? Were 
this allowable, titles to land would in a great measure depend upon parol 
testimony. Is there any necessity for this? Would it not be an easy thing 
truly to recite the execution under which the land was sold? I doubt not, it 
was done in the present instance through mistake; this may be the case again; 
but that is no reason for adopting a rule that would give rise to so much 
uncertainty and inconvenience.

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