Jennings v. Stafford

• Citation: 1 Ired. 404,23 N.C. 404
• Court: United States State Supreme Court of North Carolina
• Decision Date: 30 June 1841
• Parties: DEN ex dem. JENNINGS v. STEPHEN STAFFORD.

1 Ired. 404

23 N.C. 404

DEN ex dem. JENNINGS

v.STEPHEN STAFFORD.

Supreme Court of North Carolina.

June Term, 1841.

Though a judgment be erroneous, or obtained irregularly, and against the course of the Court, yet, while it remains unreversed, it warrants an execution conforming thereto, and upholds the title of a purchaser at execution sale.

But if a judgment be rendered by a Court having no jurisdiction of the subject matter, or against a person who has not had notice to defend his right, or if it order what the Court has not the power to order, it is null and void, and an execution issuing thereon will not protect a purchaser.

Where a judgment is rendered upon a former judgment, and execution issues thereon, it is not necessary for a purchaser at a sale, under this execution, to produce the first judgmentin support of his title.

The case of Leary & ux. v. Fletcher, 1 Iredell's Rep. 259, cited and approved.

This was an action of ejectment, tried at the Spring Term, 1841, of Pasquotank Superior Court, before his Honor Judge NASH, upon the following case, agreed: The land in dispute, was the property of the ancestor of the lessor of the plaintiff, and descended to him on the death of his ancestor. In September, 1829, a warrant was issued against the administrator of the ancestor, and returned before a magistrate, and judgment entered up as follows, viz: “Judgment for twenty dollars and costs. L. C. Moore, J. P. The administrator pleads fully administered and no assets.” Upon this judgment, an execution issued, directed to the constable, against the goods and chattels of the lessor's ancestor, in the hands of the administrator; and upon the execution, the constable made the following return, viz: “The administrator denies that he has assets, and this execution is levied on the lands of James Jennings: bounded, &c.” The judgment and execution were then returned to the County Court, and entered upon the docket, and a scire facias, reciting said judgment as a judgment rendered by the County Court issued against the heirs, a guardian at litem was appointed by the Court, who accepted service of the scire facias, and judgment was entered up in Court pursuant to sci. fa. by default. The only question in the case was, whether the judgment on the sci. fa., without the finding of no assets before the proper tribunal, was sufficient to authorize an execution and sale of the land. His Honor was of opinion, that it was sufficient, and that the defendant, who was the purchaser under the execution issued upon the judgment, obtained the title; and the plaintiff, in submission to this opinion, suffered a nonsuit, and appealed to the Supreme Court.

Kinney for the plaintiff , contended, that under the act of Assembly, Rev. St. c. 46, s. 25, & c. 63, the want of assets in the administrator must be ascertained by a trial or admission in Court, before a sci. fa. against the heirs could issue, and as that had not been done in the present case, the Court had no jurisdiction as against the heirs, and the judgment and execution issued thereon, were null and void; that consequently, no title passed to the purchaser under the execution. He cited Leary v. Fletcher, 23 N.C. 259.

A. Moore for the defendant . A purchaser at execution sale, is only required to shew in support of his title, a judgment of a Court of competent jurisdiction, and an execution issuing thereon; he is not affected by any irregularity in the judgment; unless the judgment be utterly void, he gets a title. And he contended, that the judgment in this case was merely irregular, but not void. He cited Oxley v. Mizle, 2 Mur. 250. Skinner v. Moore, 2 Dev. 138. White v. Albertson, 3 Dev. 241. Dev. Eq. 506.

GASTON, J.

It is the law of this State, that a purchaser at execution sale must shew, not only the execution under which the Sheriff sold, but a judgment warranting that execution. The only reason assigned for this doctrine is, that it must appear that the execution was not the unauthorized act of the clerk, but was awarded by the Court. Although the judgment be erroneous; nay, if it be obtained irregularly, and against the course of the Court;...