Crawford v. Dalrymple , 70 N.C. 156 ( 1874 )

PhaesoN, C. J.

With every disposition to support the title of purchasers at sheriffs’ sales and to relieve them from the effect of a mere non-observance of matters of detail by the officers of the law, we find ourselves unable to do so in this, case, because it appears of record, that there is no j udgment to support the execution under which the sheriff sold the land, there could have been none, for there was no personal representation of the deceased against whom a judgment could have-been rendered.

According to the mode of procedure, in 1831, in order to subject land to the payment of a debt, there was, in the first place, a judgment against the personal representative, fixing the debt. The plea of fully administered being admitted, or found by the jury, and in the second place a sci. fa. setting out the judgment and calling upon the heirs to show cause why execution should not issue against the land which had descended. This gives to the heirs a day in Court in order to make a “ collateral issue” as to the due administration of the personal estate.

In our case there is “no personal representative,” no judgment against him to fix the debt,” no day in Court for the heirs to show why execution “ ujpon said judgment” shall not issue to sell the real estate. But when the suit abated by reason of the death of William Crawford, (the plaintiff) there issued a fi. fa. to make “ his part of the cobís of the goods and chattels,” “leaved on 210 acres of land,” then follows a sci. fa. against the heirs to show why the land should not be sold, and a venditioni exponas, under which the land is sold. These proceedings are not merely irregular but void and of no effect, for the want of a judgment against the personal repse-sentative. So Campbell, under whom the defendant claims had no title, by power of the sheriff’s sale.

There is error.

Per CukiaM. Venire de novo.