Civil action to enjoin sale of land under execution.
These facts present the controversy:
Plaintiffs claim title to land in question by virtue of deed from the sheriff of Moore County pursuant to sale held on 7 November, 1932, under an execution issued out of the Superior Court of said county on 13 August, 1932, upon a judgment of Southern Security and Guaranty Company against R. H. Scarboro and Percy L. Gardner, and returnable "not less than 40 nor more than 60 days from the date" thereof — the sale having been held after the expiration of 60 days.
Thereafter, on 26 December, 1932, defendant Bank obtained a judgment in the Superior Court of said county against Percy L. Gardner et al., and in September, 1942, had execution issued thereon, pursuant to which the sheriff of Moore County advertised the land in question for sale for the purpose of satisfying the execution.
Thereupon this action was instituted and temporary restraining order issued. Upon hearing, the parties having waived jury trial and agreed *Page 855 for court to find the facts and to enter judgment thereon, the court found facts of which the above is brief summary, and held as a matter of law that, under the provisions of C. S., 672, as amended by chapter 172, Public Laws 1931, concerning return of executions, the sale on 7 November, 1932, as made under the execution of 13 August, 1932, under which plaintiff claims, is valid. From judgment in accordance therewith, and permanently restraining defendants from selling the property under the execution upon the judgment of 26 December, 1932, defendant Bank appeals to the Supreme Court and assigns error. One member of the Court, Schenck, J., not sitting, and the remaining six being evenly divided in opinion as to the correctness of the ruling of the court below, the judgment of the Superior Court stands affirmed as the disposition of this appeal, without becoming a precedent, accordant with the usual practice in such cases. Howard v. Coach Co., 216 N.C. 799,4 S.E.2d 449; Elmore v. General Amusements, 221 N.C. 535,19 S.E.2d 5.
Affirmed.