Ormond v. Faircloth
| Decision Date | 31 December 1804 |
| Citation | 5 N.C. 35 |
| Court | North Carolina Supreme Court |
| Parties | THOMAS ORMOND v. KINCHIN FAIRCLOTH. |
A sheriff cannot purchase property at his own sale.
THIS was an action for detinue for a negro, to which the plaintiff deduced the following title: The negro was the property of William Faircloth, deceased, at his death, and came to the hands of his administrator.
Benjamin Sheppard obtained two judgments against the administrator, in the County Court of Lenoir, upon which writs of fi. fa. were issued to the sheriff of Glasgow, and levied on the negro in question, amongst others, of which levy a return was made, and the sale of the property was stayed by consent of the plaintiff. After this levy a distribution was made, and the negro allotted to defendant.
At a subsequent term, writs of venditioni exponas issued, bearing test the first Monday in January, 1793, and returned the first Monday in March following, upon which writs the sheriff of Glasgow, after the test and before the day of return, exposed the negroes to sale at public vendue, and bid off, himself, the one in question. On a subsequent day, before the day of return of the writs of vend, expo., the sheriff sold at private sale and delivered the negro in question to John Grimsley, for the full worth of him. Grimsley continued in possession of the negro about four years, and delivered him to his daughter, wife of the plaintiff. The plaintiff had him in possession till the first day of May, 1802, when the defendant took him.
Upon the trial, the court instructed the jury that the purchase of the sheriff, at his own sale, was void, and that the subsequent sale made by him to Grimsley could not operate as a sheriff's sale, because it was not made at publicauction; whereupon the jury found for the defendant.
The plaintiff moved for a new trial, on the ground of misdirection to the jury, and obtained a rule to show cause.
BY THE COURT. A sheriff cannot purchase property at his own sale. If he bids off property, the bidding is void. Nor can a sheriff sell, at private sale, property levied on by him by virtue of an execution. The rule is therefore discharged.
Cited: McLeod v. McCall, 48 N. C., 89.
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