Aycock v. Harrison

• Decision Date: 31 January 1871
• Citation: 65 N.C. 8
• Court: North Carolina Supreme Court
• Parties: BENJAMIN AYCOCK to use of B. M. ISLER v. J. M. F. HARRISON and others.

65 N.C. 8

BENJAMIN AYCOCK to use of B. M. ISLER

v.J. M. F. HARRISON and others.

Supreme Court of North Carolina.

January Term, 1871.

Where there is a judgment, and a fi. fa. or vend. expo. issues during the life of the defendant, the Sheriff may proceed to sell, although the defendant dies before the sale; and so he may, when the fi. fa. or vend. expo. issues after the death, if tested before. But if the Sheriff, for any cause, return the process without a sale, no alias can issue tested after the death of the defendant without a sci. fa. against his heirs.

The cases of Wingate v. Gibson, 1 Murph. 492, and Samuel v. Zachary, 4 Ire. 377, cited and approved.

The present case, when before the Court at January Term, 1869, and reported in 63 N. C. Rep. 145, referred to and explained.

This was a motion to set aside an execution made before his Honor, Clarke, J., at the last Term of the Superior Court of WAYNE County.

The material facts were, that at the August Term, 1861, of the County Court of Wayne County, the plaintiff obtained a judgment against the defendants. Successive executions were duly issued thereupon, and previously to May Term, 1866, a levy had been made upon the lands of the defendant J. M. F. Harrison, who resided in the County of Craven. This defendant died in November, 1864, leaving a last will and testament, which was proved by John D. Flanner, who duly qualified thereto as executor. From May Term, 1866, a vend. expo. was issued, and at the August Term thereafter, it was returned “no sale on account of the stay law.” After the adoption of the new Constitution and the Code of Civil Procedure, the judgment was transferred to and docketed in the Superior Court of Wayne County, and on the 27th June, 1870, an alias vend. expo. was issued from that Court to the Sheriff of Craven County, commanding him to sell the lands of the said J. M. F. Harrison, so previously levied on, which the Sheriff advertised for sale.

The motion to set aside the execution was made by the executor, J. D. Flanner, and his Honor having sustained it and ordered the execution to be set aside, the plaintiff appealed to the Supreme Court.Manly & Haughton, for the plaintiff .

No counsel, for the defendants.

READE, J.

A fi. fa. issued after the death of the plaintiff, and when he had no representative in Court, must be set aside as having been erroneously issued. Wingate v. Gibson, 1 Murph. 492.

So, a ven. ex. to sell land, tested after the defendant's death without a sci. fa. against the heirs, is null and void. Samuel v. Zachary, 4 Ire. 377.

Where there is a judgment, and a fi. fa. or ven. ex. issues during the life of the defendant, the Sheriff may proceed to sell, although the defendant die before the sale. And so he may, when the fi. fa. or ven. ex. issues after the death but is tested befor...