¶1 Two questions were submitted to this Court:
¶2 1. Whether a sale, under these circumstances, can bind the land in dispute.
¶3 2. Whether the court did right in submitting the case to the jury, or ought to have nonsuited the plaintiff.
The sheriff's sale, under the circumstances of this case, did bind the land; but they also deem it regular that the plaintiff in ejectment, who claims under a sheriff's sale, shall establish a title in him against whom the execution issued. A new trial was therefore awarded.
¶4 NOTE. — See King v. Featherston 20 N.C. 259 Gorham v. Brenon 13 N.C. 174 Phelps v. Blount, ibid. , 177; Sikes v. Basnight 19 N.C. 157 Quaere .
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Case posture Posture Ejectment. On the trial the case appeared to be this. A bill of indictment had been found against one George Harkness for perjury; he appeared, pleaded not guilty, and was acquitted, at ________ Term of Salisbury Superior Court. No express judgment was given by the court as to the costs of the prosecution. The clerk, however, under the general understanding and construction of the act passed in the year 1779, ch. 4, sec. 19, then entertained, issued an execution against the goods and chattels, lands and tenements of the defendant Harkness for the amount of the allowances to the witnesses on the part of the State for their attendance. The sheriff levied an execution on the land in question, Harkness being then in possession of it, and claiming it as his property, and sold the same to Worke, the plaintiff. Harkness afterwards sold the land to Hunter, the defendant, who had full (635) notice of the sale by the sheriff and purchase by Worke. The execution was not returned, the sheriff having died before the return day; nor was there any entry or memorandum of the issuing of the execution of record. The only evidence of that fact was the testimony of the clerk. The only evidence of the levying of the execution was acknowledgments of Harkness and of Hunter, the defendant. The only evidence offered by the plaintiff of title in Harkness at the time the
execution issued was his acknowledgment, possession, and claim. On this ground the defendant's counsel moved for a nonsuit. Source: CourtListener
