Wade v. Sanders

• Decision Date: 31 January 1874
• Court: North Carolina Supreme Court
• Parties: C. C. WADE and NOAH SMITHERMAN v. AARON SANDERS and others.

70 N.C. 277

C. C. WADE and NOAH SMITHERMAN

v.AARON SANDERS and others.

Supreme Court of North Carolina.

January Term, 1874.

A purchaser at a Sheriff's sale, as against the defendant in the execution who withholds possession, is entitled to recover as of course; and the debtor cannot justify his act of refusing to give up the possession on the ground of the title's being in a third person.

This is the same as the preceding case, in which the facts are fully stated. In the preceding, the appeal of the defendants is considered; this comes up upon the appeal of the plaintiffs.

Battle & Son, for appellants .

Pemberton and Neill McKay, contra .

PEARSON, C. J.

Appeal by plaintiffs. An action is instituted by a purchaser at Sheriff's sale, against the defendant in the execution, to recover posession of the land and damages for withholding it. The right of the plaintiff, to have judgment, as a matter of course, had been long settled by the cases in this State. But notwithstanding this well established principle, the counsel of the defendant offered to read in evidence a deed by which the debtor purported to convey the land to his son Jesse A. Sanders, prior to the sale made by the sheriff.

His Honor instead of rejecting the evidence and directing a verdict for the plaintiffs, as a matter of course, complicates the case, by a suggestion, that if the son was made a party the evidence would be admitted; thereupon Jesse A. Sanders is made a party defendant, this was objected to on the part of the plaintiffs, but was allowed by his Honor, on what is, in the opinion of this Court, a misconception of the true meaning and purpose of sec. 61, C. C. P., to which he makes reference.

We can see nothing in that section which leads to the conclusion, that it means to expunge the well settled rule of our Courts “a purchaser at sheriffs sale, as against the defendant in the execution who withholds possession is entitled to recover as of course, and the debtor cannot justify his act of refusing to give up the possession, on the ground of title in a third person.”

It is true, the wording of this section is very broad, “any person may be made a defendent, who claims an interest in the controversy, adverse to the plaintiff.” We are of opinion his Honor erred in supposing these words to mean “any person who claims an interest in the thing which is the subject of controversy. This distinction makes all the difference in the world, for the controversy between the plaintiffs and the original defendants Noah Sanders and his tenant Morton, was in regard to the posession of the land, and any claim which Jesse Sanders set up to the land, was outside of this controversy, and could not in manner be effected by the judgment in this case, under the maxim “““ res inter alias acta.” So, Jesse Sanders had no concern with this controversy, as constituted...