Maynard v. Moore , 70 N.C. 546 ( 1874 )

PeaRSON, C. J.

The deed of the sheriff, dated oth January, 1870, recites that the land was sold at public sale, on the 4th of September, 1869, when J. G. Moore became the last and highest bidder, at $250, “ who then and there assigned his bid to Robert Maynard,” the plaintiff, to whom the sherifi executes the deed on payment of the sum bid.

The defendant objected to the introduction of the deed as evidence, for the reason that upon the ven. ex. is the following endorsement, in pencil, “ $120,” and in ink, “ No sale for want of compliance.” His Honor held that the endorsement was immaterial and incompetent.

We concur with his Honor, that the deed was competent evidence, notwithstanding the endorsement on the ven. ex. Surely, a question -of title is not to be disposed of on a question in regard to the competency of evidence, by reason of an objection collateral to the title.

We do not concur in the position taken by the counsel of the defendant, that the return “no sale for want of compliance,” is proof that there was no sale. On the contrary, we look upon it as a “ negative pregnant,” (as the books term it.) It affirms there was a sale, under the writ of ven. ex., but that the sheriff had made his election to abandon the contract of sale, because the bidder had failed to comply with the terms. But the evidence was material and competent, in order to present several questions in regard to the merits of the case. Was this evidence of an election on the part of the sheriff to abandon the contract of sale, conclusive and peremptory.? or did the sheriff have a locus penitentim, so that he had power to change his purpose, and to receive the money from the plaintiff, as assignee of the bidder, and execute a deed for the land?

This would lead to a further question if the deed of the sheriff be inoperative, inasmuch as the plaintiff has discharged the debt, is he not substituted to the rights of the creditor, so as to have an equity to charge the land with the amount of the judgment which he has paid and also to the excess of the price, provided the sheriff has paid such excess over to the defendant

Or is the act of the plaintiff, in paying the money and discharging the execution to be deemed so entirely efficacious as to leave him without remedy ? Gan the defendant, with a good conscience, keep the land, and take the benefit of having his-debt paid off by the plaintiff?

These questions were all cut off by the exclusion of the evidence as to- the endorsements upon the venditioni exponas-. We are of opinion his Honor erred in rejecting this evidence.

judgment reversed.

Pee Cukiam. Venire de novo.