Mclean v. Paul

• Decision Date: 31 December 1844
• Court: North Carolina Supreme Court
• Parties: DEN ON DEMISE OF MILES McLEAN v. ABRAHAM PAUL.

5 Ired. 22

27 N.C. 22

DEN ON DEMISE OF MILES McLEAN

v.ABRAHAM PAUL.

Supreme Court of North Carolina.

December Term, 1844.

Where the execution of a justice of the peace is on the same paper with the judgment, it must be considered as referring to the judgment, and is made certain as to the debt, interest and costs, and the person who recovered the same.

Where the levy of a justice's execution was “on 450 acres of land, adjoining the lands of A. B. and C. (mentioning their names,)” the court can see no objection to the levy on its face, and without further evidence cannot say that the land was not sufficiently identified, as our Act of Assembly requires.

It is not competent, on the trial of an action of ejectment, for a party, who claims under a levy made by virtue of a justice's execution, to prove by parol that due notice had been given of such levy by the constable, as required by Act of Assembly.

The awarding of the venditioni exponas, or order of sale by the County Court, imports, that notice has been duly given to the defendant, unless the contrary clearly appear.

Especially is that the case, when the Court expressly declare that notice has been given.

The cases of Forsythe v. Sykes, 2 Hawks 54. Governor v. Bailey, 3 Hawks 463, and Burke v. Elliott, 4 Ired. 355, cited and approved.

Appeal from the Superior Court of Law of Robeson County, at the Fall Term, 1844, his Honor Judge BAILEY presiding.

The lessor of the plaintiff claimed the land sued for, as a purchaser at a sale made by the sheriff under several executions issued from the County Court of Robeson. The plaintiff produced the sheriff's deed and copies of the records of the judgments and executions, under which the sale was made. From them it appeared, that the defendant confessed four several judgments before a justice of the peace, in favor of the lessor of the plaintiff, on the 10th of November 1841. On each of them a fierie facias was issued on the 13th of November; on each of which a levy was endorsed by one John McLean, a Constable, in the following words: “This day levied on the legal and equitable interest of Abraham Paul to four hundred and fifty acres of land, more or less, in Robeson County, adjoining the lands of Giles S. McLean, Dugald McCallum, John McLean, and others, to satisfy the above judgment, this 13th of November, 1841. To the best of my knowledge there are no goods or chattels of the defendant.” One of the executions was in the words following:

+-------------------+
                ¦“North Carolina: ¦)¦
                +-----------------+-¦
                ¦Robeson County:  ¦)¦
                +-------------------+
                

To any lawful officer: You are hereby commanded to execute and sell as much of the goods and chattels of the defendant as will satisfy the above judgment for debts and costs. For the want of such, levy on the lands and tenements as much as will be sufficient to satisfy the above judgment and the costs.”

The others were substantially the same, though less formal even than the above.

The records then shewed, that at the court, which sat on the 4th Monday of November, 1841, John McLean, the constable, returned the judgments, executions and levies aforesaid; and thereupon follows this entry in each case:

“Due and legal notice having been given to the defendant, on motion it is ordered by the court, that the judgment of the justice of the peace be affirmed with costs; and it is further ordered, that a writ of venditioni exponas issue to sell the land levied on, to satisfy the plaintiff's said debt, interest and costs.”

In each record is also set forth a written notice purporting to be a copy of a notice by the constable to Abraham Paul, dated the 13th of November, 1841, that he had...