McLeod v. . Pearce , 9 N.C. 110 ( 1822 )

The answer of the defendants admitted the bequest by Jesse Pearce as stated in the bill and admitted that Elizabeth Pearce had possession of the slave, and alleged that she delivered the possession to the defendant, Levy. Further answering, they said that the defendant Levy, in 1810, for a fair and valuable consideration, sold to the defendant Bryan the slave, and executed a bill of sale for him. It was not admitted that any sale of the slave was ever made by the sheriff of Johnston under executions against the defendant Levy, but if any sale was made by the sheriff, defendants averred that the slave was not present at such sale and that, if made, it was fraudulent and void; nor was it admitted that the complainant had purchased of Jesse Pearce, but it was averred that if such sale and purchase had been made it was illegal and void, because the said slave had not been out of the possession of one of these defendants, claiming him as their absolute property, from a period anterior to (112) the pretended sale by Jesse Pearce to complainant. Defendants denied all intention of removing the slave out of the State.

The jury, on the several issues submitted to them, found, among others, the following facts on which the case turned, that all the interest of Levy Pearce in the property of Elizabeth Pearce left to her for life was set up by the sheriff and sold, all together, and bid off by Jesse Pearce. It is unnecessary to decide the question so much discussed at the bar, whether the defendant Pearce had such an interest in the negro as could be sold by fieri facias, for we are of opinion that the sale is void, on the ground that the whole of defendant's interest in the property held by his mother for life, was put up by the sheriff and sold at one time and even without pointing out what the property consisted of. Such sale was unfair as tending to lessen the price, to give one bidder who might have a knowledge of the property an advantage over the rest, and to encourage speculation. The law, which constitutes the sheriff the agent of the parties without their consent, will see that he acts fairly, and it is upon this principle that it is necessary for the sheriff to seize the property and have it ready to deliver to the purchaser when from its nature it is capable of seizure. The Court would not be understood to say that where property consisted of a variety of small articles each article should be sold separately, or to sell separately where it is usual for the owners to sell in the gross; for instance, hogs in parcels, a flock of geese or sheep, or other things where it is customary for the owners of them to sell in such manner. Nor would a sale be invalidated, where there might be difference of opinion as to the common or proper mode; it must appearpalpably wrong. No man would adventure here, unless he had a knowledge which it was not to be supposed others possessed, or (113) was a mere speculater.

PER CURIAM. Dismissed with costs.

Cited: Blanton v. Morrow, 42 N.C. 49; Bevan v. Byrd, 48 N.C. 398;Williams v. Dunn, 163 N.C. 219.