Freeman v. Leonard

• Citation: 6 S.E. 259,99 N.C. 274
• Parties: FREEMAN v. LEONARD, Sheriff.
• Decision Date: 23 April 1888
• Court: United States State Supreme Court of North Carolina

6 S.E. 259

99 N.C. 274

FREEMAN v. LEONARD, Sheriff.

Supreme Court of North Carolina

April 23, 1888

Appeal from superior court, Davidson county; CLARK, Judge.

DAVIS J., dissenting.

Batchelor & Devereux, for appellant.

SMITH C.J.

Jane R Wilkes, doing business in the name of "The Mecklenburg Iron-Works," having recovered judgment in the superior court of Davidson against the plaintiff in this action, A. C Freeman, and J. M. Peacock, trading under the partnership name of Freeman, Southerly & Co., which judgment was docketed in said court on May 8, 1886, sued out execution on the same day, and delivered it to the defendant, who was sheriff of said county to be carried into effect. The latter made return thereof to the ensuing term with indorsements as follows "I have this day levied on the following personal property, and taken the same into my possession, to satisfy the within execution, viz.: One boiler, one engine, one corn-rack, one flour-mill and bolting-cloth, one smutter, one planing matcher, one matching-machine, lot of belting and pulleys, three saws, one big saw, and saw-mill. P. B LEONARD, Sheriff. May 21, 1886." Another indorsement shows a sale of the several articles, and the price obtained for each, and the appropriation of the proceeds of sale, to-wit, $373.41, to the discharge of the debt, interest, and costs, in the aggregate $182.23, bearing date May 31, 1886, and his official signature thereto. The present action, begun on June 19, 1886, is prosecuted by said A. C. Freeman, a defendant in that suit and plaintiff in this, against the said P. D. Leonard, to recover the penalty imposed by section 461 of the Code for selling property under execution contrary to the directions of chapter 10, of which that is part, and, after an adverse judgment of the justice of the peace, removed by defendant's appeal to the superior court. It was there tried upon a single issue: "Did the defendant sell real property, as claimed, contrary to the true intent and meaning of sections 456 and 487 of the Code? Answer. No." It will be observed that no exception is taken to the restricted form of the inquiry; it being confined to lands, while the complaint embraces property of any kind. Besides the facts above summarily stated the plaintiff further proved that, on the date of levy, the sheriff took possession of the grist-mill, saw-mill and planing-mill, all under the same roof, and locked up the building, and delivered the key to J. M. Badgett to hold, with instructions to him to open the mill when necessary to deliver grists to customers, and to allow hands to work in the shed, but not to run the machinery; that the property levied on and sold consisted of a saw-mill, and planer bolted to timbers on the ground, and framed into the building, a boiler in the mill set up and encased in masonry, an engine bolted to the timbers in the building; also millstones, both flouring and corn, running and framed in the mill when built. It was admitted that the defendant advertised at the court-house door, and some other places in the county, by posters,--nine days at court-house, and ten days at the other places. It was admitted that the above property belonged to the defendants in the execution. It was proved also that J. M. Badgett was the general agent of the firm of Freeman, Southerly & Co. in the transaction of the firm business generally. The said J. M. Badgett further testified that on the day of sale A. C. Freeman, one of the firm, placed in his hands $250, and instructed him not to let the property be sacrificed, but to bid it off, which he accordingly did; that after the sale, immediately thereafter, on same day, Southerly, another of the firm, and one of the defendants in the execution, gave him a check for $100, and also that Peacock, the other member of the firm, paid him some money; that he thought Freeman furnished the money out of his own funds. It was further testified by the witness Badgett that none of the property was removed from its position, either by the sheriff or himself after the sale; and that, immediately after the sale, the firm went into possession of all the property, and began operating the mill as usual. His honor held that the property levied on and put up by the sheriff was realty, and required 30 days' notice, as for sale of real estate, and the only question was whether there was a sale as contemplated under the said section of the Code. The plaintiff contended that, as the sheriff actually sold and left Badgett in possession, and made return as shown in the exhibits, he could not be heard to deny in this action that there was a sale, and that according to the evidence there was a sale, and that the issue submitted by the court, which appears in the record, should be answered in the affirmative by the direction of the judge, and asked the judge so...