Flemming v. . Dayton

This was an action of ejectment for a tract of land sold under two executions against the defendant and one Alfred Keith, and purchased by the plaintiff's lessor. On the trial it was admitted that the defendant was in possession of the land used for, and the lessor rested his case, after showing the judgments, executions and sheriff's deed to himself. The judgments appeared to have been confessed by the defendant, Dayton, for the fine and costs of two indictments against Alfred Keith, (454) in which he was convicted and sentenced to pay a find of $5 and the costs in each case, and for which he was ordered into custody until they should be paid. The executions were issued jointly against both Keith and the present defendant, Dayton.

The defendant's counsel contended that the judgment confessed by him were irregular and void, because he was not brought into court by any process; but if that were not so, the judgments were several, and the executions, being joint against both Keith and Dayton, did not conform to them, and consequently the sheriff's sale under the executions were void and did not convey any title to the purchaser. The presiding judge was of opinion that the latter objection was good, and the lessor of the plaintiff thereupon submitted to a judgment of nonsuit and appealed to this Court. The judgments confessed by the present defendant, Dayton, although there was no process to bring him into court, were regular and proper S. v. Lane,23 N.C. 264. But they were not connected with those against Keith, so as to make them joint against both. They were, indeed, given and accepted by the State as a payment of those against Keith, for which he was ordered into custody until the fine and costs which were adjudged against him should be paid. He could be discharged by the consent of the State by payment of the judgments or by taking the oath for the relief of insolvents. S. v. Johnson2 N.C. 293. The State, by its proper officer, agreed to accept the judgments confessed by Dayton as a payment or satisfaction of those against Keith, in order that he might be discharged from custody. They were judgments against Dayton (455) alone, and the executions issued upon them should have been against him only. Not having been so, the executions were irregular and void, and the purchaser of the land sold under them acquired not title by his purchase. Dobson v.Murphy, 18 N.C. 586; Blanchard v. Blanchard, 25 N.C. 105;Collais v. McLeod, ante, 221.

PER CURIAM. Judgment affirmed.