Smith v. Low

• Decision Date: 30 June 1842
• Citation: Smith v. Low, 2 Ired. 457, 24 N.C. 457 (N.C. 1842)
• Court: North Carolina Supreme Court
• Parties: DOE ON DEMISE OF FREDERIC SMITH v. JOHN LOW.

2 Ired. 457

24 N.C. 457

DOE ON DEMISE OF FREDERIC SMITH

v.JOHN LOW.

Supreme Court of North Carolina.

June Term, 1842.

The Superior Court has no right, on a trial before it, to permit a return of a constable to a County Court to be amended.

A constable is not bound (though it is safest for him to do so) to describe the land, returned by him to the County Court as levied on, precisely according to the directions of the statute, (Rev. Stat. c. 62, s. 16.) It is sufficient if he gives such a description as will distinguish and identify the land.

The cases of Huggins v Ketchum, 4 Dev. & Bat. 414, and Proctor v Pool, 4 Dev. 370, cited and approved.

Appeal from the Superior Court of Law of Guilford county, at March Term, 1842, his Honor Judge DICK presiding.

This was an action of ejectment. The plaintiff claimed title under a sheriff's deed; and, in order to support his action, read in evidence two warrants against one Coley, and judgments thereon by a justice of the peace, and executions thereon, dated 23d March, 1839. On the 3d of May, 1839, these executions were levied, and the levy endorsed on the back of each as follows, viz: “For want of goods and chattels of the defendant, Julius Coley, I levied this execution on three tracts of land, the home place, the Lynn place and the Leonard Greeson place, containing four hundred acres, be the same more or less;” which levy was signed by the constable, John Rightsell. These warrants, with the judgments, executions and levies aforesaid, were returned to the County Court of Guilford, at May Term, 1339. Notices in both cases were ordered to issue and did issue returnable to August Term, 1839, of Guilford County Court, and were returned “made known the 9th day of July, 1839.” At August Term the cases were continued, and at November Term, 1839, orders of sale were granted in both cases, and from that term two writs of venditioni exponas were issued to the sheriff of Guilford, commanding him “to expose to public sale three tracts of land, the home place, the Lynn place and the Leonard Greeson place, containing four hundred acres, the property of Julius Coley, which was levied upon by virtue of an execution at the instance of” A. B. and C. D., (mentioning the names of the plaintiffs in the warrants.) Upon these writs, at February Term, 1840, the sheriff made the following return: “The within described land, after being advertised according to law, was sold at the Court-House door, in the town of Greensborough, on the 17th of February, 1840; at which time Frederick Smith became the highest bidder for the home place, at the sum of $17 25--also the Lynn tract Frederick Smith became the highest bidder for at $27, and Eli Smith became the highest bidder for the Leonard Greeson place.” The defendant objected to the plaintiff's recovery, upon the ground, that the levies of the justice's executions were too vague and uncertain. His HONOR entertained the opinion that the objection was fatal. The plaintiff insisted that the description of the lands levied upon need not be in the precise words of the Act of Assembly, (A^a1) and that he had a right to shew as a fact that the return of the levy by the constable, in the cases referred to as above, identified the lands levied upon as effectually as they would have been identified by a description conforming to that prescibed in the act. And he offered to show, by oral evidence, that there were no water courses on either of the said tracts, except springs and the branches which run therefrom--that they were generally known in the neighborhood as “the home place,” “the Lynn place” and “the Leonard Greeson place,” belonging at that time to the defendant Coley--that the lands sold by the sheriff were the same as those levied on by the constable, Rightsell. The counsel, being asked by the court if he expected to shew that the lands sold had a notoriety to be better known or more distinguished by those names than the other neighbor's lands, replied in the negative. Thereupon the court intimated that evidence, short of that, would not cure the defect in the levy. The plaintiff then moved the court, that the constable, Rightsell, might be permitted to amend his return of his levies, as he was present in court. To this the defendant objected, and insisted that the warrants, judgments, executions and returns of levies, upon their return to the County Court, became records of that court, and that the Superior Court had no authority to alter or amend the records of the County Court; which objection was also sustained by the court. Under an intimation of these opinions by his HONOR, the plaintiff submitted to a nonsuit and appealed.

No counsel for the plaintiff.

J. T. Morehead and Waddell for the defendant .

RUFFIN, C. J.

For the reasons stated in the record, the court concurs in opinion with his Honor, that there could be no alteration made in the constable's return.

But, in our judgment, it was error to reject the evidence offered by the plaintiff for the purpose of sustaining the levy of the constable and the sale by the sheriff, by shewing that the land was well identified by the description therein given. It has been stated by this court, Huggins v Ketchum, 4...