Blanchard v. Blanchard.

• Court: North Carolina Supreme Court
• Writing for the Court: GASTON
• Citation: Blanchard v. Blanchard., 3 Ired. 105, 25 N.C. 105, 38 Am.Dec. 710 (N.C. 1842)
• Decision Date: 31 December 1842
• Parties: DOE ON DEMISE OF JOHN H. BLANCHARD v. MARY BLANCHARD.

3 Ired. 105

25 N.C. 105

38 Am.Dec. 710

DOE ON DEMISE OF JOHN H. BLANCHARD

v.MARY BLANCHARD.

Supreme Court of North Carolina.

December Term, 1842.

The purchaser at an execution sale must shew a judgment, and an execution corresponding thereto. An execution at the instance of B. is not warranted by a judgment in favor of A.

If a constable in returning to court a levy on land does not describe it as required by the Statute, Rev. St. c. 46, s. 16, a purchaser under a venditioni exponas, issued by the Court, in order to support his title in a trial at law, must shew by extrinsic evidence, that the return does as completely identify the land as it would have been identified by a literal observance of the Statute.

The cases of Huggins v Ketchum, 4 Dev. & Bat. Rep. 414. Smith v Law, 2 Ired. Rep. 457. Den on dem. Dobson v Murphy, 1 Dev. & Bat. 586, and Ingram v Kirby, 2 Dev. & Bat. 21, cited and approved.

Appeal from the Superior Court of Law of Duplin county, at Fall Term, 1842, his Honor Judge MANLY presiding.

On the trial of this ejectment the lessor of the plaintiff, as a part of his title, produced a judgment in favor of William McCurdy against Noah Blanchard, obtained before a justice of the peace, and a separate execution with subsequent legal proceedings in favor of Reuben Blanchard, against Noah Blanchard. This execution was indorsed as follows:

“Levied on the land of Noah Blanchard, joining the lands of H. Blackmore, Reuben Blanchard, and others. 8th April, 1831.

JES. LAWSON, Dep. Sheriff.

This execution was returned to court, and notice given to the defendant in the execution. A venditioni exponas issued from the court founded on this levy, and, at the sale of the land, Reuben Blanchard became the purchaser, and under him the lessor of the plaintiff claims. The court intimated an opinion, that the plaintiff in the execution, who became the purchaser at the sale, acquired no title on account of the defectiveness of the proceedings, that the execution was not supported by the judgment, and, if it were, there was no sufficient levy endorsed upon the execution, and, without them, the subsequent judgment and order of sale were nullities.

In submission to this opinion, the plaintiff suffered a nonsuit, and appealed to the Supreme Court.

No counsel for the plaintiff.

D. Reid for the defendant .

GASTON, J.

The plaintiff undertook to deduce a title in the premises to his lessor, under a purchase and conveyance from the Sheriff. The execution, under which the Sheriff sold, was a venditioni exponas, purporting to have been issued from the County Court, and commanding the Sheriff to expose to sale, “the land of Noah Blanchard, joining H. Blackmore and others,” which land, the execution recited, had geen theretofore levied on by a constable, by virtue of judgment against the said Noah, in favor of Reuben Blanchard, and which levy had been returned to court and confirmed, and an order of sale thereon made. It does not appear that the order of court was exhibited, but the plaintiff gave in evidence a writ of fieri facias issued by a justice in favor of Reuben Blanchard against Noah Blanchard, a return thereon by the constable, of a levy on the land of Noah Blanchard, “joining the lands of H. Blackmore, Reuben Blanchard, and others,” and a notification from the constable to the said Noah, of the levy aforesaid, that it would be returned to the court, and that the said court would be moved for an order of sale thereon. The plaintiff also gave in evidence a judgment before the justice, which he alleged to be that whereon the fieri facias was sued out, but the same was a judgment rendered for William McCurdy, against the said Noah. Upon this evidence the court was of opinion that the plaintiff had not made out a title in his lessor, and, the plaintiff thereupon submitted to...