Den Ex Dem. Mordecai v. Speight , 14 N.C. 428 ( 1832 )

His Honor charged the jury that as the sheriff's sale did not commence on Monday, the return day of the writ, his authority expired with that day, and that a sale made by him on Tuesday was void.

A verdict was returned for the plaintiff, and the defendant appealed. There are two questions in this case distinct in themselves, though relating to the same subject. The first is, whether the sale of land under a fi. fa. be good if made on the day after the process is made returnable, and before it be returned, and during the term of the court to which it is returnable. This is answered by the case of Lanier v. Stone, 1 Hawks, 329, affirmatively, and we see no reason for being of a different opinion.

The second is, whether the acts of Assembly directing the manner in which sheriffs shall sell lands and slaves (Taylor's Revisal, chs. 1096 and 1153) do not render such a sale as this void. This, we think, is answered negatively by Pope v. Bradley, 3 Hawks, 16. That case is said not to be in point, because the sale was opened, and because the reason for adjourning it was a good one. Those circumstances were adverted to for the purpose of establishing the propriety of the sheriff's conduct, even had he been called on to answer in that action; but not as establishing the purchaser's title. For the Chief Justice plainly says that on no principle could an irregularity in the adjournment annul the sale, and he founds himself in this on the act being directory to the sheriff, and giving a penalty against him. And those are the grounds of the opinion we entertain. It would be dangerous to purchasers, and ruinous to defendants in execution, to require bidders to see that the sheriff had complied with all his duties. It is said, however, that this will allow sales to be made at other places besides the courthouse, as the same section fixes both the place and the day. The difference is this: a purchaser knows, and is bound to take notice, that the sheriff cannot sell but at the courthouse, and that a sale elsewhere must be void. But the sheriff may sell on Monday, or in certain cases, and under certain regulations; he may also sell the next day. Now, a bidder can no more know whether those provisions have been complied with than whether (430) the sale has been duly advertised. We think, indeed, that postponing the sale entirely by proclamation is the same for this purpose as beginning and then adjourning it. But that respects the remedy against the sheriff, and is not the principle which governs this case. For these reasons, the instructions given in the Superior Court are deemed erroneous, and the judgment is reversed.

PER CURIAM. Judgment reversed.

Cited: Collins v. Nall, post, 458; Kelly v. Craige, 27 N.C. 135; S. v.Rives, ibid., 314; Brooks v. Ratcliff, 33 N.C. 326; Reid v. Largent,49 N.C. 454; Woodley v. Gilliam, 67 N.C. 239; Mayers v. Carter, 87 N.C. 147;Burton v. Spiers, 92 N.C. 505; Williams v. Dunn, 163 N.C. 212.