Isler v. Andrews

• Decision Date: 31 January 1872
• Citation: Isler v. Andrews, 66 N.C. 552 (N.C. 1872)
• Court: North Carolina Supreme Court
• Parties: B. M. ISLER v. JOHN S. ANDREWS, Sheriff.

66 N.C. 552

B. M. ISLER

v.JOHN S. ANDREWS, Sheriff.

Supreme Court of North Carolina.

January Term, 1872.

1. A sheriff, on a sale by him under execution, can demand cash of the purchaser, and on his refusal to pay it (even though such purchaser, as an execution creditor, is entitled to the proceeds of sale, less the costs, and offered to pay cash to the amount of the costs and enter satisfaction for the residue) may immediately resell.

2. Whether a sheriff so acting, arbitrarily, does not subject himself to an action, quere.

3. It seems that on a rule against a sheriff at the instance of such bidder to show cause why he should not execute a deed, the purchaser at a resale of the property ought to be made a party.

4. And, on the death of such sheriff, by virtue of the provisions of the Revised Code, chap 37, sec. 30, the rule should be served on h??s successor.

5. Before such successor can be required to convey to such first bidder, he is entitled to demand clear and conclusive evidence that a sale was made by his predecessor and also that the price was paid to him.

6. The natural evidence thereof is the return, though it seems that other evidence may be received.

7. Per RODMAN, J., arguendo: Perhaps such bidder might (by procuring the determination of the proper Court, of his right to priority of payment out of the proceeds of sale and an order to enter satisfaction pro tanto, on his execution,) be regarded as having become the purchaser, but, held, that in the absence of all such proof and in the face of a direct denial by such successor, no such in ference can be made.

8. Whether the execution creditor has any other remedy, quere.

The cases of Owen v. Barksdale, 8 Ired, 81, and Harris v. Irwin, 7 Ired.; 432, cited and approved.

This was a rule nisi originally obtained on O. R. Colgrove, late sheriff of Jones, requiring him to show cause why he should not execute a deed as sheriff, to the plaintiff for a tract of land sold by him under execution.

The salient facts necessary to a proper understanding of the controversy, appear to be: that on the 2d day of January, 1869, said Colgrove having in his hands sundry executions, amongst which was one in favor of the plaintiff, which had priority of satisfaction, sold the land and it was knocked down to the plaintiff at a sum less than his execution called for; he offered to pay Colgrove the costs in cash and receipt on the execution for the balance, but Colgrove having refused to accede to this proposition, and having demanded the full amount of the bid in cash, and the plaintiff having refused to pay his entire bid, or any more than the costs in cash, Colgrove immediately put up the land again for sale, when one D. D. Colgrove, who knew of plaintiff's bid, became the highest bidder; O. R. Colgrove made no return on the execution nor did he or D. D. Colgrove pay the money into Court but O. R. Colgrove, as Sheriff, executed a deed to D. D. Colgrove.

O. R. Colgrove died before a determination was had on the rule, and one Pearce first, and then the present defendant Andrews, as his successor respectively were made parties defendant in his stead.

An answer was filed, stating that O. R. Colgrove had publicly proclaimed before the sale commenced, that owing to the conflicting claims of the execution creditors he should require cash and should pay the same into Court and ask advice, &c. The rule coming on to be heard before His Honor, Judge Clarke, at Spring Term 1871, of June Superior Court, he discharged the same, and the plaintiff appealed.

Shipp in support of the rule .

No Counsel contra .

RODMAN, J.

The plaintiff obtained a rule on the present Sheriff of Jones county to show cause why he should not make to the plaintiff a conveyance for a piece of land purchased by plaintiff at an execution sale, made in 1869, by O. R. Colgrove, then Sheriff of Jones county. The Judge finds in substance, that the Sheriff Colgrove sold the property of one Harrison at the time alleged, that he then had in his...