Humphries v. Baxter

• Decision Date: 30 June 1846
• Citation: 6 Ired. 437,28 N.C. 437
• Court: North Carolina Supreme Court
• Parties: DEN EX DEM. JOHN HUMPHRIES v. ISAAC BAXTER.

6 Ired. 437

28 N.C. 437

DEN EX DEM. JOHN HUMPHRIES

v.ISAAC BAXTER.

Supreme Court of North Carolina.

June Term, 1846.

Under the acts of 1820, 1821 and 1822, the sales of land under execution, in the county of Currituck, are excepted from the general provisions of those acts, directing the places where such sales should be made.

One part of a statute may be public in its nature, while another is local and private; and those parts of these acts which concern “particular counties” merely, are to be taken to be of the latter kind, and are therefore saved from the general repealing clause of the act of 1836, ch. 1, sec. 2, by the proviso in the 8th section.

In Currituck county, therefore, lands may be sold under execution by the sheriff, at any place which in his sound discretion he deems most proper.

Appeal from the Superior Court of Law of Currituck County, at the Spring Term 1846, his Honor Judge BAILEY presiding.

Ejectment for a tract of land situate in Currituck county. Both parties claim under sales made by the sheriff on writs of fieri facias against Jesse W. Doxey. That at which Baxter purchased, was prior in time and was made on the premises in dispute. Afterwards, the sale under which the plaintiff claims, was made at the court-house, which was also the usual place of holding the petit musters of the militia company to which Doxey belonged. For the plaintiff, the acts of Assembly of 1820, c. 32, 1821, c. 19, 1822, c. 25, were adduced; and it was thereupon insisted, that the sale to Baxter was void, because it was made on the premises, and not at the court-house and the place of petit muster. The Court, however, was of opinion, that the sale to the defendant was lawful and valid; and the plaintiff was therefore non-suited, and appealed.

A. Moore, for the plaintiff .

Heath, for the defendant .

RUFFIN, C. J.

This Court concurs in the opinion given by his Honor. We have held at the present term, in the case of Den on demise of Grandy v. Morris, that, until the act of 1820, the place for the sale of land under execution was in the discretion of the sheriff, whether it was the premises or elsewhere. Therefore the sale to the defendant was good, unless avoided by one of the three acts mentioned. They all enact, as the general law for the State at large, that the court-house shall be the place of sale. But the county of Currituck, doubtless from its situation and form, is excepted in the acts themselves from the operation of the general enactment. The act of 1820 provides, in the third section, that sales in that county shall be held at the usual place of holding the petit musters. It is upon this provision, that the plaintiff insists, that the sale on the premises was unlawful. So it would be if the act of 1820 was still in force. But the act of 1821, after re-enacting that the court-house...