Aydlett v. . Elizabeth City , 121 N.C. 4 ( 1897 )

"That E. F. Aydlett owned a farm about 4 miles from Elizabeth City, and had upon the farm, among other things, a lot of cattle, all of which property and farm was in the possession of J. B. Sylvester, who was in charge of the farm and the stock; that E. F. Aydlett, who lives in Elizabeth City, did not look after the stock in any way and did not know all the stock, and especially did not know the cow that was taken up by the defendant and sold; that the cow was on the farm, in the possession of J. B. Sylvester, and got out and strayed in the corporate limits of Elizabeth City, into the garden of _____ Dozier, who drove her out and drove her in the streets, being the first time seen by the town authorities on the streets, and being the first time taken; that the town authorities took the cow up from the street and placed her in a lot kept for cattle taken up by the town; that defendant kept her for ten days, advertised her and sold her at the courthouse door according to the town ordinances made for the corporation of Elizabeth City, which ordinance is made a part of this statement, and at the sale A. Aydlett bid for the cow, $5, which was the last and best bid, and paid the money for her to the defendant, and the cow was delivered to said A. Aydlett; that E. F. Aydlett afterwards claimed and proved the cow to be his, and took possession of her. The town authorities have offered to pay E. F. Aydlett the (6) difference between $5 and what it cost to feed the cow for the ten days, and the fees of the constable, which he declined and claimed the cow. The plaintiff presented his bill, demanding the $5, to the board of commissioners of the defendant, before the commencement of this action, and asked to have it audited and allowed, and the commissioners refused to do so."

The town ordinance referred to is as follows:

Town Ordinance.

"SEC. 6. No cow, ox, sheep, goat, hog, horse, mule, or goose shall be allowed to run at large in any of the streets or on any of the uninclosed lots of the town within the corporate limits. It shall be the duty of the constable to take up and impound any such animal or goose so at large until the penalty or fine and costs for such taking, keeping and impounding shall be paid by the owner or claimant. There shall be paid for each goose so impounded or found running at large the sum of 25 cents, and for each cow, ox, sheep, goat, hog, horse, or mule, $1. One-half of said fine shall go to the constable and the other half to the corporation: Provided, That if, one week after any of said animals shall have been impounded, no claimant shall appear and pay the fine and costs of keeping, the same shall be sold, after three days advertising by the constable at the courthouse door, to the highest bidder for cash. Proceeds of sale shall be applied to the payment of fines and costs of keeping, and $1 to the constable for making and posting the advertisement. Excess, if any there be, shall be paid to the treasurer of the corporation."

The defendant put in evidence the Private Laws of 1895, ch. 15, Private Laws 1889, ch. 126, and also Private Laws 1895, ch. 85, showing the charter and amended charter of Elizabeth City.

His Honor held that the plaintiff was not entitled to recover, (7) and gave judgment accordingly, from which plaintiff appealed. The plaintiff acquired a good title to the cow at the sale made by the town authorities. If the plaintiff's contention that the animal belonged to a nonresident of the town, who lived 4 miles away, and that the owner could not, under section 2, chapter 141, Laws 1895, be made to pay any poundage or penalty for the first three times of impounding, should be conceded to be true, the cow certainly could have been sold under the town ordinance for the cost of feeding her while impounded. The charges for feeding cannot, under the act referred to, be embraced in the words "pounding or penalty." It was the duty of the town constable to impound all cattle running at large within the town limits. The section and act referred to do not prohibit the town authorities from impounding the cattle of all persons, nonresidents of the town as well as residents, found astray within the corporate limits; it only prohibits the charging of fines and poundage in cases where the animals belonged to nonresidents of the town who live a mile or more from the corporation limits. It does not attempt to prevent the town authorities from collecting the cost of feeding stock impounded, in all cases. There was due to the town authorities from the owner the cost of feeding the animal for ten days, and the amount so due entered into the sale and was sufficient inducement to justify and authorize the authorities to make the sale.

But suppose the town officer acted without authority in making the sale, the plaintiff, in this case, who was the purchaser, acquired no title, and the true owner had a right to the possession of the animal, (8) and the plaintiff did what was proper in surrendering it to him.

At such sales made by public officers the purchaser is charged with notice of all defects of title and of all such gross irregularities as amount to a lack of authority to sell. The plaintiff paid the bid for the cow and took possession of her under the sale. The town is liable to him for nothing. If he has any remedy, it is not against the town.

No error.

Cited: Owen v. Williamston, 171 N.C. 60.