Guilford County NcArchives Court.....Hamilton, Vs. Adams 1811-18
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 12, 2008, 11:07 pm

Source: North Carolina Reports
Written: 1811-18

July Term 1812.

Den on Demise of John Hamilton v. John Adams. 

From Guilford.

1. In ejectment, the purchaser at a sheriff's sale is bound to show the 
judgment on which the execution issued. And where he purchases under an order 
of sale made by the County Court, upon a return of a constable that "he had 
levied the execution upon the lands of the defendant. There being no personal 
property found," he must shew the judgment recovered before the justice of the 
peace.

2. No person shall be deprived of his property or rights without notice and an 
opportunity of defending them.

The lessor of the plaintiff claimed the land in this case under a sale made by 
the Sheriff of Guilford County, at which he became the purchaser. On the trial 
he gave in evidence the docket of Guilford County Court for February Term, 
1807, on which were entered three cases against the defendant, John Adams, 
each purporting to be an execution issued by a justice of the peace, and 
levied by a constable on the land in question, and that the court had directed 
orders of sale to be issued. He also gave in evidence the orders of sale, with 
the return of the sheriff on each, that he had, in obedience to the order, 
sold the land, and that the lessor of the plaintiff had become the purchaser. 
But he did not produce in evidence any judgment rendered by a justice of the 
peace, nor any execution issued by a justice of the peace against the 
defendant; and it was insisted, on behalf of the defendant, that the plaintiff 
was not entitled to recover without giving in evidence such judgment and 
execution.

Hall, J. The first question in this case is whether the lessor of the 
plaintiff, claiming to be a purchaser at a sheriff's sale, be bound to show 
the judgment on which the execution issued. Not to require a party, claiming 
under an execution, to produce the judgment is to say that the execution would 
convey the property, although no judgment exists, or, in other words, that the 
execution is sufficient evidence of the judgment, and that the purchaser under 
it shall retain the property against the true owner, although no judgment was 
ever obtained against him. We should pause before we adopt a rule that would 
give rise to such consequences. It is a principle never to be lost sight of, 
that no person should be deprived of his property or rights without notice and 
an opportunity of defending them. This right is guaranteed by the 
Constitution. Hence it is that no court will give judgment against any person 
unless such person have an opportunity of showing cause against it. A judgment 
entered up otherwise would be a mere nullity. Courts of justice adhere so 
strictly to this rule that when a judgment is produced the strong presumption 
arises that the parties to it had notice.

It may be said that an execution is evidence of a judgment, and that a 
judgment presupposes notice; this presumption in the latter case is much 
weaker. A judgment is matter of record, and entered up under the inspection of 
judicial officers; an execution issues out of term-time by the clerk, who is 
altogether a ministerial officer, and such execution does not become a record 
until it be returned. It is true that where an execution issues to a distant 
county it would be inconvenient to require the purchaser to ascertain the fact 
whether a judgment had been rendered; but he is not required to search for the 
judgment when he purchases; he advances his money at his own risk, and is 
required to show the judgment when the right to the property is contested. Is 
it not better that this should be the case than that a man should lose his 
property when no judgment has been rendered against him? Would it not be 
iniquitous to say that if a clerk be corrupt enough to issue an execution 
where there is no judgment to support it, the property of the defendant in the 
execution shall be transferred to the purchaser, when the true owner had no 
notice of such execution? If there be a judgment, it ought to be produced; if 
there be none, the right of property ought not to be changed; the execution 
should have no other effect than to justify the officer who acts under it.

It has been argued for the plaintiff that, as Adams was the defendant in the 
execution under which the defendant purchased, the plaintiff is not bound to 
produce the judgment on which the execution issued; and the case of Lake v. 
Billers, 1 Ld. Ray., 753, has been relied upon, as well as some other cases, 
in which the one in Lord Raymond is mentioned with approbation. To this we may 
repeat what has been said, that when a person claiming under an execution 
produces it, but is excused from producing the judgment upon which it issued, 
such person can successfully contest the right of property under such 
execution, although no judgment was ever obtained. It matters not whether a 
thing exist or not, if it be not required to be shown. The defendant would be 
awkwardly situated if he were required to show the negative fact that no 
judgment existed against him. If there be no judgment, an execution cannot 
change the right of property.

What constitutes such a judgment, and execution in cases like the present is 
pointed out in the act of 1794, ch. 13. Section 25 of that act directs that 
when an execution issues to a constable, in case of deficiency of personal 
estate, he shall levy upon lands, etc., and make return thereof to the justice 
who issued the same, which justice shall return such execution, with all other 
papers on which judgment was given, to the next County Court to be held for 
his county. It is then declared to be the duty of the clerk to record the 
whole proceedings had before the justice and all the papers. The court are 
then required to make an order directing the sheriff to sell such lands, or so 
much of them as will be sufficient to satisfy such judgment, a copy of which 
record is directed to be made by the clerk; and such order of sale by the 
court constitutes the judgment required in this case. The judgment before the 
justice necessarily forms part of the proceedings. Judgment for the defendant.

Cited: Hoke v. Henderson, 15 N. C., 16; Ingram v. Kirby, 19 N. C., 23; 
Rutherford v. Raburn, 32 N. C., 145; Lyerly v. Wheeler. 33 N. C., 289; Green 
v. Cole. 35 N. C., 429; Wilson v. Jordan, 124 N. C., 715; Wainwright v. 
Bobbitt, 127 N. C., 276; Daniels v. Homer. 139 N. C., 240, 270.

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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