We concur with his Honor both in the reception of the testimony objected to and in his charge. The lessor of the plaintiff and the defendant both claimed the premises in dispute, under Allen Cheyne, who was a citizen of Georgia and resident there. Allen Cheyne claimed to be a devisee under the will of his father, Henry Cheyne, and, being largely indebted to the estate, the executors (471) took out an attachment against him and caused it to be levied upon the land in question, and other property, and such proceedings were had that a regular judgment was obtained against the defendant, Allen Cheyne, at November Term, 1847, of Union County Court; and at same term one Williams and Milton Ching, who had been summoned as garnishees, upon the examination confessed that each was indebted to Allen Cheyne, and the debts were condemned to the satisfaction of plaintiff's debts, and judgments were rendered against each of them to the amounts severally admitted to be due. These garnishees were solvent, and are still so. A venditioni exponas issued; and at the sale the lessor of the plaintiff, it is alleged, became the purchaser, and to show that fact he offered in evidence the venditioniexponas and the sheriff's return thereon. This was objected to by the defendant, upon the ground that the venditioni exponas and the sheriff's return constituted no part of the record and were not admissible as evidence to establish the sale by the sheriff and the purchase by the lessor. The objection was overruled, and the testimony admitted by the court as proof that the execution was in the hands of the sheriff at the time of the sale, that there was a sale by him, and that the lessor of the plaintiff was the purchaser at such sale.
Defendant claimed the land under a deed from Allen Cheyne, bearing date April, 1847, before the attachment issued, and it was contended by the lessor of the plaintiff that it was made to defraud the creditors of Allen Cheyne, and therefore void. On the part of the defendant it was insisted that the plaintiff could not recover, for that a sum sufficient to pay the debt in the attachment had been condemned in the hands of the garnishees, and that the plaintiffs in the attachment, of whom the lessor of the plaintiff in this case was one, could not sell the land in controversy until he had collected the sums so (472) condemned or showed that he could not collect them. The objection was overruled by the court, and the jury were instructed that if the deed from Allen Cheyne to the defendant was made to defraud his creditors, it was void, and the plaintiff was entitled to a verdict. The objection of the defendant to the venditioni and the sheriff's return is twofold: first, that is was no part of the record; and secondly, that the return was but the certificate of the sheriff of what he had done under the precept. *Page 320
It is certain that the venditioni is not a part of the record, so as to carry absolute verity with it; but it was the authority under which the officer acted, and his only authority to sell. It was, therefore, a necessary part of the evidence in making out the plaintiff's title, and for the purpose for which his Honor admitted it, it was clearly competent; as to their return on the venditioni, it is an official act, rendered necessary by the law, which compels the sheriff to make due return of every precept which comes to his hands, and this return is a notification to the court of what the officer has done under the precept. It is not conclusive evidence, being not a judicial but a ministerial act, so neither is the conveyance by the sheriff to the purchaser. In both cases the opposing party may show that no sale did take place, or that the land specified in the deed was not levied on or sold. But they are both prima facie evidence and stand effective until rebutted. This position is sustained by Smith v.Low, 27 N.C. 197, and Patterson v. Britt, 33 N.C. 389.
The second objection urged by the defendant is equally untenable. The plaintiff in the venditioni exponas, so far as the defendant is concerned, had a right to have the land sold under it, although he had judgments against the garnishees at the time. This objection is founded on the general principle that a debtor's personal property is first to be made subject to an execution. It is unnecessary to investigate that doctrine here; for we hold that if an injury has been inflicted (473) by a sheriff's departing from this order, it is a matter between him and the owner of the property, the defendant in the execution.Mordecai v. Parker, 14 N.C. 435. In this case the jury have found that the conveyance from Allen Cheyne to the defendant was made to defraud his creditors. It is, therefore, void as to the latter, and, as far as they are concerned, conveyed no title to the defendant, but left it still in Cheyne, who is no party in this suit.
PER CURIAM. No error.
Cited: Simpson v. Hiatt, post, 474; Walters v. Moore, 90 N.C. 49;Miller v. Powers, 117 N.C. 220; Comrs. v. Spencer, 174 N.C. 37.