Currie v. Clark

• Decision Date: 28 February 1884
• Citation: 90 N.C. 355
• Court: North Carolina Supreme Court
• Parties: JAMES L. CURRIE v. J. B. CLARK and others.

90 N.C. 355

JAMES L. CURRIE

v.J. B. CLARK and others.

Supreme Court of North Carolina.

February Term, 1884.

EJECTMENT tried at Fall Term, 1883, of MOORE Superior Court, before McKoy, J.

The plaintiff appealed.

Messrs. Hinsdale & Devereux and W. A. Guthrie, for plaintiff .

Messrs. John Manning, M. S. Robins and R. P. Buxton, for defendants .

SMITH, C. J.

The plaintiff's title to the land in dispute is derived from a sale under executions issued against the defendants, made on August 7th, 1879, and the sheriff's deed executed on the next day. The answer, after denying the plaintiff's allegation of ownership and wrongful withholding, while admitting possession, sets up a defence to the action that the sale was brought about and the land bid off and conveyed by the sheriff through the fraudulent procurement and unfair practices of the plaintiff, by means whereof he became the purchaser of the property, worth several hundred dollars, for the inconsiderable sum of twenty-five dollars, and thereby acquired no estate in the premises.

Four issues were submitted to the jury, the first three enquiring as to the plaintiff's title, the defendants' wrongful possession and the damages therefrom, and the fourth involving the essential matters of defence, in these words:

4. Did the plaintiff obtain the title through means of the sheriff's sale by fraudulently suppressing the biddings therefor by means of fraud or fraudulent representations, or fraudulent practices?

The jury found all the issues upon the evidence and under the instruction of the court against the plaintiff, and from the judgment rendered thereon he appeals.

The last and material issue is somewhat vague and confused, and does not present the intended enquiry into the plaintiff's conduct, in connection with the sale and the mala fides and fraud imputed to him, in a form calculated to be understood and explicitly answered by the jury, and restrictive of the evidence to be heard. But no exception was taken, and the issue seems to have been framed with a view to the admission of impeaching and sustaining testimony in regard to the plaintiff's action in securing the title through a judicial sale by practices not tolerated by the law, and the fruits of which it will not permit him to retain. The evidence upon this point may be thus summarily stated:

There had been several judgments recovered against the defendants, two of them on debts contracted before the adoption of the constitution in 1868, and entitled to priority of satisfaction, and all docketed in the superior court of Moore county, on which executions had been issued to the sheriff, and were in his hands at August term, 1879, of the court.

The first and earliest docketed judgment was in favor of H. and E. J. Lilly, and had been assigned to the plaintiff, and the next, in favor of E. L. Pemberton, was in charge of his attorney, J. C. Black, for management and collection. The amount due on both, with costs, was about seven hundred dollars, which sum, increased by the other executions, made an aggregate of near one thousand dollars, the value of the land upon the estimate of a witness for the plaintiff.

The sheriff with these writs advertised the sale of the land to take place on August 4th, the first day of the term of the court, and while he sold other property under other executions, postponed the sale of this until the next and again the day following, Wednesday, when amid considerable bidding it was sold to the said attorney for the sum of seven hundred dollars, the defendant N. D. J. Clark being present, the sheriff giving notice that if the bid was not complied with the land would be again put up at 10 A. M. of the ensuing day. On Thursday, as the sheriff was proceeding to resell, during the recess between the morning and evening sessions of the court, he was stopped by the plaintiff, who asked him to wait a few moments, during which the plaintiff and the attorney withdrew for private consultation, at the end of which the plaintiff returned and directed the officer, in his own language, to “go ahead.” During this interview the plaintiff proposed to buy the Pemberton debt, and was informed by Black that he had assured Clark the day before that the land, if resold, should bring enough to pay that execution; and thereupon the plaintiff said: “If you will let me have the judgment the sale may go over.”

Under these circumstances the assignment was made to him of the Pemberton debt and the sale proceeded, when the plaintiff became the purchaser at the price of twenty-five dollars. Clark was not present on this occasion, nor was the attorney, who testifies he would have been, had he known of it. The testimony of the plaintiff is in opposition to that of Black in reference to any suggestion of deferring the sale and his assent thereto.

It does not appear how many, if any other, persons were present on the occasion of the last sale, or whether any bid except that of the plaintiff was made.

The appellant's exceptions are now to be considered:

1. The defendant, N. D. J. Clark, to whom the land is understood to belong, and who is referred to when the name is used, was allowed, after objection, to say that his absence on Thursday was in consequence of the assurance received from Black that the land should bring seven hundred dollars.

We do not see why it was not competent in him to explain the cause of his non-attendance and apparent inattention to his own interest, when he was aware of the intended resale, if the first bid was not complied with by payment, or in what respect the answer could be obnoxious to just complaint.

2. The court refused to charge that there was no evidence to sustain the 4th issue and it should be withdrawn, or the jury directed to return a negative answer.

The court properly declined to so charge in the face of the testimony of the circumstances under which the sale was made to the plaintiff. The manifest result of his management, if upheld, is to put in him the title to land worth twenty times the sum paid, and this by practices, if the testimony be accepted, inconsistent with good faith and fair dealing towards the owner whose property has been sacrificed, and fails to meet a proper share of his indebtedness. The difficulty is not obviated by the proffer of the plaintiff's counsel to apply the full amount of the previous bid to the executions, that is, in effect to raise the price to that sum, for the defendant's legal right is to have a fair sale, and that his property shall bring the largest sum that any bidder may be willing to give, and this sum appropriated to the discharge of his debts. Whatever means are used to obstruct this legal right of the debtor and secure his property to the execution creditor for an unreasonable price, is an abuse of legal process which the law will not recognize and uphold. In our view there was evidence, and its weight and sufficiency it was the province of the jury to determine.

3. The next and most serious objection to the charge is, that it was not all put in writing, after a request from plaintiff's counsel that it should, according to the directions of C. C. P., §238, which provides “That every judge, at the request of any party to an action on trial, made at or before the close of the evidence, before instructing the jury on the law, shall put his instructions in writing, and read them to the jury; he shall then sign and file them with the clerk as a part of the record of the action.”

It is stated in the case that when a new trial was asked, after verdict, the plaintiff assigned as error, that, after the request for a written charge, the court said “anything orally to the jury.” The statute neither in purpose nor terms goes to this extent, nor does it apply to the requirement in the preceding section (237), that the judge ...