Wayne County NcArchives Court.....M'Kinne, Barden V. 1826 ************************************************ 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: Guy Potts http://www.genrecords.net/emailregistry/vols/00017.html#0004214 September 20, 2008, 1:44 am Source: Nc Reports Written: 1826 Doe on dem. of Barden v. M'Kinne June Term 1826 From Wayne A levy on chattels vests in the Sheriff a special property, and he may therefore sell after the return day of the writ, without a ven. ex., but a levy on land gives him neither property, nor a right of possession; he has a naked authority to sell only; his sale transfers a right of property to the purchaser, and with the consent of the tenant the Sheriff cannot give actual possession. Therefore, a sale by a Sheriff of real estate, after the return of a fi. fa. and without a new writ, is made without authority, and passes no title. It seems that a levy on real estate shown only by an endorsement on the writ, made after the return day, is not valid. Ejectment, tried before Ruffin, Judge. Plaintiff claimed title to the lands described in his declaration, as follows: George Bradbury recovered a judgment in Wayne County Court, at May Term, 1820, against the Defendant William M'Kinne, for $1,096.33, with interest thereon and costs, on which judgment a fi. fa. issued, tested of May Term, 1820, returnable to the succeeding August Term; this was delivered to the sheriff on the 27th of May, 1820; upon which writ (it never having been returned, nor any other execution having been issued on said judgment), the land in dispute was sold to the lessor of the Plaintiff for one dollar, on the 31st of January, 1822, and the sheriff executed a deed. George Bradbury died in October, 1820, leaving a will, of which Barden, the lessor of the Plaintiff, is executor; the will was proved at November Term, 1820, of Wayne County Court, and Barden then qualified as executor. The sheriff who sold under Bradbury's execution, was called as a witness for Plaintiff, and stated, that between May and August Terms, 1820, he levied the execution on the land in dispute, and also on M'Kinne's negroes, that he did not then give any notice of said levy, nor endorse it on the execution, until after February, 1821; that in February, 1821, he sold the negroes levied on, which did not fully satisfy the execution; that the lessor of the Plaintiff, as the executor of said George Bradbury, soon afterwards (but when the witness could not remember) directed him to sell the land, and that in pursuance of such instructions, he advertised the land, and sold it on the 31st of January, 1822. He further said, that between February, 1821, and January, 1822, he had advertised and offered the land for sale, but did not sell for want of bidders. Upon these facts, the Court instructed the jury, that the sale of the land to the lessor of the Plaintiff on the 31st of January, 1822, upon the fi. fa. issued in May, 1820, and after the death of George Bradbury in October, 1820, was without lawful authority in the sheriff, and therefore void, notwithstanding any levy thereon, made between May and August, 1820. There was a verdict for the Defendants, new trial refused, judgment and appeal. Badger for the appellant. Gaston, contra. Taylor, C.J. - A new trial should be granted. File at: http://files.usgwarchives.net/nc/wayne/court/mkinne657nwl.txt This file has been created by a form at http://www.genrecords.net/ncfiles/ File size: 3.7 Kb