The jury, under the directions of the judge, found a verdict for the plaintiff, and the defendant appealed. *Page 16 It was said at the bar that this case was the same in principle as Frost v. Etheridge, but I think it is very distinguishable from it. That was the case of a levy on lands in the husband's lifetime, and sale after his death under a fieri facias. This, where both levy and sale were in the husband's lifetime; but the marshal's deed was executed to the purchaser after the husband's death. In the case of Frost v.Etheridge, it was held that the levy did not divest or disturb the husband's seizin; and that the purchaser was in from the purchase, not from the time of the levy, or teste of the fieri facias. But the lien or charge on the land, arising from the teste of the writ of fieri facias, was only against those who came in by contract with the defendant; and not as to those who came in by operation of law; that the lien was created by law, to protect the estate from the fraudulent acts of the defendant in the execution; and to that end, all liens or transfers of the estate by him, after the teste of the execution, were made fraudulent in law, whatever might have been the actual intent; but that where such fraudulent intent could not be imputed from the nature of the claim, there such presumption could not apply. And such was the nature of the widow's claim to dower, in which no presumption of fraud could arise. For it could not be supposed that her husband died to defeat the creditor. She was therefore entitled to dower. But the present (5) is a case where there was an actual sale, which, if evidenced in the manner prescribed by law, entirely defeated the husband's estate, not by a fiction or relation to guard the estate from the acts or claims of anyone, but an ipso facto determination of it. I do not mean to say that the bare act of sale or crying out the property passes the title of land, or even returning it on the execution. But when the deed is afterwards made in conformity to the sale, the title to the estate is taken out of the defendant in the execution, and vested in the purchaser, from the time of the sale, whatever may be the effect on the possession; I mean the intermediate possession between the sale and the deed. I do not intend in this to overrule the case of McMillan v. Hafley, 4 N.C. 186, where it was decided that an action of trespass will not lie for the purchaser for an intermediate trespass. For the doctrine of that case does not stand in the way of this; and it may be sustained possibly upon something peculiar to the action of trespass. But I am much disposed to doubt its correctness.
We are all of opinion that the sheriff's or marshal's deed, so far as regards title, relates to the time of the sale, and divests the estate from the sale, and vests it in the purchaser, and gives to him the rights and *Page 17 imposes on him the obligations of the legal owner, whether or not in analogy to the execution of a power, I am not disposed to say; but I rather think that it is upon the ground that it evidences a transaction, to wit, the sale, which divested the title.
PER CURIAM. Judgment affirmed.
Cited: Pickett v. Pickett, post, 11; Hoke v. Henderson, post, 16;Testerman v. Poe, 19 N.C. 105; Pressnell v. Ramsour, 30 N.C. 507;Woodley v. Gilliam, 67 N.C. 239; Cowles v. Coffey, 88 N.C. 342; McArtanv. McLauchlin, ibid., 393.
(6)