A judgment having been obtained in RUTHERFORD at the instance of Ann Waters against the defendant Allen Twitty, execution was sued out thereon, and by the present plaintiff was placed in the hands of the sheriff, who made thereon a return that he had "Levied on 1,050 acres of land on Green River, and on both sides of Walnut Creek, including the plantation on which Allen Twitty and William Twitty live, including the whole of their improvements and mills; and on 7 June levied on sixteen negroes, the property of Allen Twitty, and on this day, 28 June, the above land was exposed to sale, when Joseph Wilson, Esquire, became the last and highest bidder for the sum of $800." The return went on to state that the sale of the negroes was postponed, and afterwards a part of them (seven) sold for $1,301. (45)
Allen Twitty and the other defendants, his sons, were in possession of the lands at the time of the sale and the bringing of the action; and Allen Twitty had been in possession nearly thirty years, claiming as his all the lands which were levied on and sold. The present plaintiff, who was interested in the judgment under which the lands were sold when he delivered the execution to the sheriff, directed him to levy it on Allen Twitty's land and negroes, and when the sheriff went to make the levy he asked Twitty how much land he had there, and was answered 1,050 acres, and the sheriff levied accordingly. The sheriff did not know, nor was it made known at the time of the sale, that the land was held under different and distinct deeds; but he did know at the time of the levy that William Twitty and Allen Twitty lived on different parts of the land, at the distance of a mile from each other. Allen Twitty did not inform the sheriff at the time of the levy on the negroes that they belonged to William; the sheriff left the negroes with Allen Twitty, taking from him a bond to produce them on the day before the day of sale, but they were not produced on that or the following day. William Twitty at the sale attended and claimed the property as his, forbidding a sale.
The tracts of land were meadow or cleared lands, some lying on the river and some back, and not all contiguous, and in 1814 and 1815 Allen Twitty gave in the lands to the assessor, describing them as distinct tracts and belonging to him. *Page 24
Three objections were taken below to plaintiff's recovery: first, that the mode in which the sheriff sold the lands (in one lot) was illegal; secondly, that the plaintiff's lessor having been beneficially interested in the judgment under which the land was sold, was bound by an (46) illegality or irregularity in the sheriff at the sale; thirdly, that the land was sold before the negroes.
The defendant produced several deeds under which the land was held to show them to be distinct tracts, and also proved that if all the negroes levied on had been sold they would have paid the debt, supposing them to sell as well as those which were sold.
Nash, J., who presided, charged the jury that in an action of ejectment, brought by a purchaser at sheriff's sale, against the defendant in the execution, it was not necessary for the plaintiff to show that the defendant had any title, nor was the defendant at liberty to show title out of himself; but that the plaintiff had made out his case when he showed a judgment, execution, sale, and sheriff's deed to himself, and possession in the defendant at the time the action was brought. Upon the first objection made the jury was instructed that where a sheriff levied on lands consisting of different tracts it was his duty to levy on them as such, and also sell them separately, but that where land was levied on by an officer, under a description given of it by the owner, a sale of it by the officer under that description, so far as the owner, the defendant in the execution, was concerned, was illegal, but lawful; the officer not being apprised before the sale of the fact of there being different tracts, nor requested to sell them separately.
As to the second objection, the judge charged that the plaintiff, having been substantially interested in the execution under which the land was sold, was affected by any irregularity or illegality in conducting the sale; and further, that any combination between a purchaser and an officer so to conduct a sale as to occasion any injury to the owner of the property rendered the sale void; and whether there was any such combination in this case was left to the jury as matter of fact.
As to the third point raised, the jury was told that when, to (47) satisfy an execution, an officer levies upon real and personal property, the law requires him to sell the latter first; but where under the provisions of the act of Assembly the sheriff leaves negroes in the possession of the debtor, taking bond and security for their forthcoming on the day of sale, and at that time they are not produced, he was not only at liberty to sell the lands, but might be punished if he did not.
Verdict for the plaintiff's lessor; judgment and appeal on the refusal of the court below to grant a new trial. *Page 25 It is much to be regretted that a more particular rule of conduct has not, by the law, been prescribed to sheriffs in sales of landed property under execution. A difficulty exists in this country (which the law has not provided for) from the circumstance (49) that most of the lands are uncultivated and covered with wood, and on that account their boundaries are more difficult to be ascertained; and it has not been made the duty of sheriffs to set forth their boundaries in their advertisements, or to make them known, particularly on the day of sale. They have not been required to ascertain and set them forth in any better way than they are enabled to do from common report, and from the common channels of information through which people generally acquire a knowledge of them.
The practice has been to put up the land for sale by a general description of it, as the land on which the defendant lives, or his lands lying on such a water-course, or as known by such a name. It has not been made the sheriff's duty to ascertain and make known the title, whether it be held under one or more grants or deeds, or from whom the defendant purchased it.
I believe it is not usual to sell at once two unadjoining tracts, nor do I know that it is forbidden in express terms. It is surely the sheriff's duty to sell in that way that will likely be most beneficial to both parties. I mean in that way that will produce the most money.
In the present case the lands were adjacent to each other, but were held under different titles, and did not lie adjoining to each other, but their boundaries were not far apart. It did not appear that this fact was known either to the sheriff or to the purchaser. It was woodland that separated them. Twitty, with the exception of his son's possession, was possessed of and claimed title to all the lands, and told the sheriff that he had 1,050 acres in that part of the county.
It seems that all the lands when sold, did not produce as much money as the execution called for; and if the lands had been sold in separate lots, one probably would not have sold for more than both together brought when sold together. (50)
The question of fraud had been fairly left to the jury; they have been directed to find for the defendant, if there was fraud practiced either by the sheriff or purchaser. Of course, no inquiry is to be made of that at this time.
Another circumstance may be here noticed, and that is, Why did not the defendant object to the sale, at the return of the execution? There would have been less difficulty then in setting aside the sale if it had *Page 26 been made with loss to the defendant, on account of any misunderstanding either of title or location. But the purchase money was suffered to be paid, and there has been an acquiescence under the sale until the bringing of this action. The sheriff was not to blame for not selling the personal property first. The negroes were kept back by the defendant himself. He, therefore, ought not to complain on that account.
Without, therefore, adopting rules for the government of sheriffs, which have not been prescribed and enforced heretofore, and from a view of the whole case, and circumstances attending it, I am of opinion that the rule for a new trial should be discharged.
The rest of the Court concurred.
Cited: Thompson v. Hodges, post, 55; Huggins v. Ketchum, 20 N.C. 557;Jones v. Lewis, 30 N.C. 73; Pemberton v. McRae, 75 N.C. 499; McCanlessv. Flinchum, 98 N.C. 365; Williams v. Dunn, 163 N.C. 217.
(51)