McKee v. Lineberger

• Decision Date: 30 June 1873
• Citation: 69 N.C. 217
• Parties: G. W. MCKEE, Sheriff, v. JACOB LINEBERGER.
• Court: North Carolina Supreme Court

69 N.C. 217

G. W. MCKEE, Sheriff,

v.JACOB LINEBERGER.

Supreme Court of North Carolina.

June Term, 1873.

Proof without allegation is as ineffective as allegation without proof: Hence, The Court cannot take notice of any proof unless there be a corresponding allegation.

A sheriff selling land under execution, may maintain an action in his name against the purchaser for the amount bid, upon tendering a deed for the land sold.

The relation of creditor and debtor exists between the sheriff and such purchaser, by force of contract of sale, and the sheriff is left to enforce his rights by the usual remedy of action, unless he elects to rescind the contract of sale and sell the land again.

Nor is it necessary to enable the sheriff to bring such action, that he should first make a return of the sale on the execution.

A bidder at a sheriff's sale occupies a relation altogether different from a bidder at a sale made by order of a Court of Equity. In the latter case, the Court takes the bidder under its protection and control, and manages the whole proceeding until the sale is in all things carried into effect: Whereas, In the former the sheriff makes the sale by himself, without any confirmation or other act of the Court, and acts by force of a statutory power to sell, &c.

A bidder at a sheriff's sale of a tract of land, known as the “Neagle tract,” cannot avoid his bid, because the sheriff refused to convey a narrow strip of land and mill site and water power adjoining the same, and which the sheriff did not sell, although such water power, &c., was some six months before the sale, advertised as belonging to the “Neagle Tract.”

CIVIL ACTION, at first commenced in Gaston county, and thence regularly removed to LINCOLN, where it was tried before Logan, J., at Spring Term, 1873.

The following is the case, signed and sent by the counsel of the parties, with the record to this Court.

This is an action brought by the plaintiff in his official capacity as sheriff of Gaston county, to recover of defendant the amount of a bid made by him for a tract of land sold by plaintiff at a judicial sale under a venditioni exponas, and which bid the defendant after said sale refused to pay.

The plaintiff in his own behalf testified that having in his hands a fieri facias against H. W. Rumfelt, Wm. R. McLean and J. E. Neagle, returnable to the Spring Term, 1869, of Gaston Superior Court, and before levying and advertising the lands of defendant, Rumfelt, for sale, he summoned Wm. McKee, Rufus J. Beatty and James Wagstaff as commissioners to lay off to said defendant his homestead and personal property exemption; that he met said commissioners on the day appointed on the premises, and after administering the oath to them he left and did not return; that the lands of Rumfelt consisted of several different tracts all adjoining each other, and after laying off the homestead he advertised the same in written notices posted at the Court-house door, and three other public places in the county, to be sold on the 3d day of April, 1869; that at the request of said William R. McLean, he consented for McLean to make an advertisement in the Charlotte Democrat, in his, McKee's name, as calculated to attract the attention of a larger number of persons; that said Wm. R. McLean wrote the advertisement and procured its insertion in the Democrat, but witness was not positive as to whether he saw the advertisement in writing before its publication, but thinks he did. He saw it afterwards. The advertisement is in words and figures as follows:

“IMPORTANT SALE OF REAL ESTATE.--AT THe courT-house in dallAs, on Saturday, the 3d of April, 1869, I will sell that valuable tract of land known as the ‘J. B. Neagle Tract,’ on the Catawba river, containing 208 acres, more or less, with a good mill site and water power.

Also one other tract, known as the ‘Rumfelt Home Tract,’ containing 200 acres, more or less, on which is the well-known and valuable Rumfielt gold mine.

Also one other tract, known as the McLean Gold Mine tract, containing 50 acres, more or less, levied on as the property of H. W. Rumfelt, to satisfy executions in my hands in favor of J. M. Hutchison, assignee, v. H. M. Rumfelt, W. R. McLean and J. E. Neagle. The above land will be divided to suit purchasers. Terms cash.

G. W. MCKEE, Sheriff.

March 1st, 1859.”

“In regard to the valuable quality of the above lands, reference is made to W. F. Davidson, Esq., M. L. Wriston, Esq., and W. J. Yates, editor of the Charlotte Democrat.”

Witness further testified that he did not sell the lands aforesaid on the 2d of April for want of bidders, and he made such return on the execution; from the Spring Term a venditioni exponas issued to sell the lands levied on, and he advertised them by notices posted as usual, but in them merely recited the J. B. Neagle tract as containing 208 acres, without saying anything as to a mill site and water power; on the 4th of October he offered for sale the lands of Rumfelt, stating the Neagle tract as containing 208 acres without mentioning a mill site and water power when the defendant at a single bid offered the sum of $2,625, and the same was knocked off to him at that sum; that shortly before the sale commenced, the defendant came to him and said he thought of bidding for some of the land, and wished to know if he did so, whether he would give him some little time in which to raise the money; and he agreed that he would give him such time; after the defendant bid off the land he came to witness to know within what time he must raise the money, and two weeks were given as the time for the payment of the money; at the end of that time the defendant came to pay the money, alleging that he had it, and demanded a deed. After referring to the Register's books, plaintiff offered to convey the “J. B. Neagle tract” by metes and bounds of the original tract; but defendant insisted that they did not include the mill site and water power, which he alleged were the principal objects of his purchase, and if he did not get them, he did not want the land; plaintiff said he did not sell any mill site and water power to defendant; in fact, he did not know anything about them, but was willing to convey the J. B. Neagle tract of 208 acres as described in the original on the Register's books to which he had reference for the metes and bounds; defendant refused to take any such deed, and went off without paying his money; above six or eight week afterwards, and two weeks after Gaston Court, he, plaintiff, prepared a deed and went to defendant's house and tendered it to him, containing the 208 acres by the metes and bounds in the original deed, and demanded the amount of the bid; defendant asked if it contained the mill site and water power opposite the narrow strip of land; plaintiff told him it did not; the defendant replied he would not have it; witness then told him he had sold the narrow strip of land at the foot of the shoal to his father, Wm. McKee, and he, defendant, could get it for twenty-five dollars; defendant replied he had bought it once and did not wish to buy it again from a third person; plaintiff then told him that he had not yet made a deed to his father, and he could control the matter, and he would insert the mill site and water power in the deed if defendant would pay the money; defendant said he believed he would buy other lands with the money; he also testified that he had never been on the land, and knew nothing about the shoal or mill site at that time; plaintiff thereupon left him.

Witness further testified that upon the venditioni exponas he had indorsed a return of the sale to Lineberger, and after he refused to pay he went into the clerk's office with the venditioni exponas and asked the advice of the clerk as to what he should do; the clerk told him he had no advice to give; that if he made a return it would be entered on the execution docket, and if he made no return it would be his duty to issue an alias venditioni exponas; he then asked the clerk if he could not make no return and let an alias issue and then sell the land again, and hold Lineberger responsible for the difference; clerk said he did not know; he must advise for himself; that he, the plaintiff, concluded to make no return, and took his pen and erased the return of sale already written upon the venditioni exponas; that he did not order any of the alias fi fas to issue, nor did his counsel; that the tendering of the deed was in accordance with the advice of his counsel obtained at Court after the sale; that he also said in the conversation with the clerk that he would strike out the return until he could see his counsel at Court; that the clerk did issue an alias venditioni exponas which was returned to the Spring Term, 1870; another returnable to Fall Term, 1870; and another to Spring Term, 1871, on which last he made returnable as follows: “The within named property, the fifty acre tract known as the Gold Mine tract, was sold, bid off by J. L. Rumfelt; the J. B. Neagle tract was sold and bid off by Jacob Lineberger, for which there is a suit now pending. The forty-three acres, part of the Mine tract, was bid off by William McKee.”

Cross-examined--Prior to sale he had according to the Act of Assembly appointed John Smith and W. R. Rankin to appraise the land; they had made such appraisement, and he had it on day of sale, but after searching for it could not find it--supposed it might be in the clerk's office; Lineberger's bid was three-fourths of the appraisement. He further testified that subsequent to his tender of a deed to Lineberger at the defendant's own house he did make a deed to his father for forty-three acres, which included the strip of land in controversy, which strip did not belong to the Neagle tract but belonged to the Lattimer tract.

Jacob Lineberger in his own behalf testified that in the Spring of 1869, he was looking about for a tract of land with a good water...