Burke v. Elliott

• Decision Date: 30 June 1844
• Citation: 4 Ired. 355,42 Am.Dec. 142,26 N.C. 355
• Parties: DOE EX DEM. MOSES BURKE et al. v. STANTON ELLIOTT.
• Court: North Carolina Supreme Court

26 N.C. 355

4 Ired. 355

42 Am.Dec. 142

DOE EX DEM. MOSES BURKE et al.

v.STANTON ELLIOTT.

Supreme Court of North Carolina.

June Term, 1844.

A judgment of the County Conrt, upon a justice's execution returned levied on land, under which judgment there are an execution and sale of the land, precludes all collateral enquiry into the regularity of the previous proceedings.

Therefore a purchaser under such judgment and execution will acquire a valid title to the land, although the levy of the justice's execution may have been by one not legally authorized to act as an officer.

The acts of officers de facto are as effectual, as far as the rights of third persons or the public are concerned, as if they were officers de jure.

What shall constitute an officer de facto may admit of doubt in different cases. The mere assumption of the office by performing one or even several acts appropriate to it, without any recognition of the person as officer by the appointing power, may not be sufficient to constitute him an officer de facto. There must at least be some colorable election and induction into office ab origine and some action thereunder, or so long an exercise of the office and acquiescence therein of the public authorities, as to afford to an individual citizen a strong presumption, that the party was duly appointed; and, therefore, that every person might compel him, for the legal fees, to do his business, and for the same reason was bound to submit to his authority, as the officer of the country.

The cases of Jones v Judkins, 4 Dev. & Bat. 454; Borden v Smith, 3 Dev. & Bat. 35; Armstrong v Harshaw, 1 Dev. 187; Irby v Wilson, 1 Dev. & Bat. Eq. 568; Skinner v Moore, 2 Dev. & Bat. 138; White v Albertson, 3 Dev. 241 ; State v Shirley, 1 Ired. 597; State v Wall, 2 Ired. 267; and State v Briggs, 3 Ired. 357, cited and approved.

Appeal from the Superior Court of Law of Chowan County at the Spring Term 1844, his HONOR Judge BAILEY presiding.

This was an action of ejectment. The lessors of the plaintiff shewed two judgments, against the defendant, which had been recovered before a justice of the peace, one for the sum of $75 and the other for the sum of $80, upon which executions issued, dated the 25th April, 1843, which, for the want of personal property, were levied on that day on the lands described in the plaintiff's declaration by the officer who served the warrants. They also proved notices of the levies given to the defendant, Staunton Elliott, in due time, and that these, together with the warrants, judgments and levies, were returned to the ensuing County Court of Chowan--that at this term of the Court, on motion, both judgments were affirmed, and orders of sale issued from the said Court, under which the sheriff of Chowan offered the said land for sale, when the lessors of the plaintiff became the purchasers, and took from the sheriff his deed, which was duly proved and registered. They also proved that the defendant was in possession of the land at the commencement of the suit. The defendant then offered in evidence the minute docket of Chowan County Court, upon which appeared the following entry at November Term, 1842, to wit:

“The following justices of the peace of the County being present (naming ten justices) Benjamin A. Hines was duly elected Constable by the Court for one year, whereupon he appeared in open Court and entered into bonds.”

It was in proof that Hines lived in the town of Edenton in the County of Chowan; that he was the same person, who served the warrants, and made the levies and returns above mentioned; that the people had made no election of a constable in the year 1842, for the district in which Hines lived--that the first Court of Pleas and Quarter Sessions after the first of January, 1842, commenced its session on the 1st Monday of February of that year, and that there was no re-appointment of Hines to the office of Constable until November Term, 1843. It was proved, that Hines acted as a Constable of Chowan County, under his appointment at November Term, 1842, until he was re-appointed at November Term, 1843, and that, during that time, he discharged all the duties pertaining to the office of constable, which he was called upon to perform; and that in the service of the two warrants before mentioned, in making the levies and giving the notices, he professed to act as Constable.

It was contended on the part of the defendants, that the appointment of constables must be made, by the proper number of justices, at the first term of the County Courts, which occurs after the first day of January in each and every year, which appointment continues for one year only, and that this appointment on the failure of the people to elect, can only be made at that term--that it ought to appear from the minutes of the Court; that the people had failed to elect a constable in the district, in which Hines lived, or, having made an election, that the office had become vacant by death or removal, before the Court could make an appointment; and as the record did not shew how the office had become vacant, the attempted appointment of Hines was void--and further, supposing the appointment of Hines at November Term, 1842, to be valid, yet the official term expired, by limitation of law, at February Term next ensuing, at which term he should have been re-appointed--that, having failed to obtain a re-appointment at February Term, 1843, all his acts, from that time until after the re-appointment at November Term, 1843, were null and void--and, therefore, as the lessors of the plaintiff claimed under warrants, which had been served by him in April, 1843, and levies, which had also been made in that month, they obtained no title under the sale, which had been made by the sheriff of the land in controversy.

His HONOR being of opinion, upon the facts, that the lessors of the plaintiff had acquired a good title by their purchase at the sheriff's sale, especially as the acts of Hines, even, if he were only constable de facto, were valid so far as third persons or the public were concerned, instructed the jury accordingly.

The jury, found a verdict for the plaintiff, and from the judgment rendered thereon, the defendants appealed.

A. Moore & Iredell for the plaintiff .

Thomas F. Jones for the defendants .

RUFFIN, C. J.

We deem it a superfluous enquiry whether the appointment of Hines to the office of Constable was valid or not, because we think the judgments and orders of the County Court, upon which the executions were issued and the land was sold, preclude a collateral enquiry into the regularity of the previous proceedings.

The Act of Assembly, Rev. Stat. c. 45, s. 8, confers the jurisdiction on the County Court, when a justice's execution is returned, levied on land, to enter a judgment there for the debt recovered and costs, on the application of the plaintiff. There the act, s. 19, provides, that when an officer shall levy such an execution on land, he shall serve the defendant with notice in writing at least five days before the term, to which the execution is to be returned, of the levy and of the term to which it will be returued, and thereupon the Court shall make an order of sale. If it shall not appear, that such notice has been given, then the Court is to order a notice to issue to the defendant and shall not proceed to make any order of sale until notice be served on the defendant five days before Court. These provisions shew, that the proceedings in the County Court upon the return of a levy on land, which consist in rendering a judgment there for the debt, and awarding execution thereof against the land levied on, or against the person, or property generally, of the debtor, at the election of the creditor, is a judicial proceeding, and therefore, conclusive until reversed. Rev. St. c. 31, s. 108. Jones v Judkins, 4 Dev. &. Bat. 454. The rendering of the judgment imports that the requisite notice has been duly given; since the Court is forbidden to enter judgment until notice is served. There must therefore have been evidence to the Court, that there had been notice; and the decision upon that evidence is conclusive, while it stands. We have held, indeed, that when it appears, that the notice had not, and could not have been given, and the want of it was not waived by the party, an order of sale would be void. Borden v Smith, 3 Dev. & Bat. 35. That is the necessary result of the principle laid down in Armstrong v Harshan, 1 Dev. 187. Irbey v Wilson, 1 Dev. & Bat. Eq. 568, and Skinner v Moore, Dev. & Bat. 138, which is, that a judgment against one, not a party, to the suit, is void, and that it can appear that he is a party, only when the record states an appearance or the official service of process on the person or his property. Here the record does not state the appearance of the debtor, but it states the levy of the fieri facias on his land and notice to him personally, being both service of process on the property and on the party. That such service was...