Den on Demise of Smith v. Fore , 32 N.C. 37 ( 1849 )

It is only necessary to notice one objection, as that is fatal to the plaintiff's right to recover. The lessor is a purchaser at a sheriff's sale, under a venditioni exponas, issuing upon a constable's levy. The land had been before sold under a venditioni exponas issuing upon the same levy, and one Davis had become the purchaser and taken the sheriff's deed. This rendered the levy functus officii, and there was no authority to issue the second venditioni exponas under which the lessor purchased. As the price given by Davis did not satisfy the debt, a judgment might have been taken in the County Court, upon which a fieri facias might have issued.

The principle that the debtor is not at liberty to resist the recovery in ejectment by the purchaser at a sheriff's sale, does not apply, because the lessor has not shown himself to be a purchaser within the meaning of that rule. Such a purchaser must show a valid execution. The lessor has failed to do so in this case, and is not entitled to the rights of a purchaser at a sheriff's sale.

PER CURIAM. Judgment affirmed.

Cited: Smith v. Fore, 46 N.C. 490; Peebles v. Pate, 86 N.C. 440; S.c., 90 N.C. 353, 4.

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