Den Ex Dem. Douglass v. Short , 14 N.C. 432 ( 1832 )

Henderson, Chief-Justice.

There are several questions made in the cause, which it is not necessary to consider, as we think the sale is void in Mo, and gives no title to the purchaser, for want of power in the sheriff to sell for the taxes of the year 1824. The rule in regard to the validity of'a sheriff's sale under siji.fa. where he sells all the land levied on, does not apply ; there the surplus of the money, after satisfying the Ji.fa. belongs to the defendant in the execution. Therefore, if the sheriff professes to sell under several Ji. fas. and all are void but one, the sale is valid by virtue of the good execution, and the surplus of the money, after satisfying it, belongs to the defendant in the execution, and his title is not affected by the misapplication, by the sheriff, of the purchase money to the void executions. This is matter of adjustment between the sheriff and the defendant in the execution, and the purchaser has nothing to do with it. It is sufficient that the sheriff had an authority to sell, and the valid execution gave him that authority. But a sale for taxes is governed by a different rule; there the whole thing is not sold, but the offer or proposition is, who will pay the tax demanded, for the least quantity of the land. Every cent of tax therefore, demanded, takes from the owner a portion of the land, while the sum over-claimed docs not go into his pocket, or for his benefit. For although as in this case, some of the taxes may be really due, he may not choose to have them paid by this sacrifice, and the rule must be general. The quantity of laud sold was therefore, improperly swelled, and we cannot separate and say how much was sold for the taxes., which the sheriff had a right to collect, and how much for those for which he had none. Neither can we settle it by the rule of proportion ; for non constat, that there was no one present, who, had the proper sum been demanded, would not have paid that sum for a much less proportion of the land. A variety of causes might thus operate ; a by-stander might have money enough to pay the fax which ought rightfully to have been demanded, and not •enough to pay what was actually demanded, or he might not choose to purchase as much of the land. Sales for taxes, are sufficiently rigorous by the acts of the legislature, without being made more so by construction. I have -not gone through the acts to shew that the sheriff could ■not. when he sold, include the taxes for the year 1824, .as it is evident from a slight examination of them.

Per Curiam. — Judgment reversed»