{ "id": 8650779, "name": "HENRY FARRIOR v. GEO. E. HOUSTON and another", "name_abbreviation": "Farrior v. Houston", "decision_date": "1888-02", "docket_number": "", "first_page": "369", "last_page": "374", "citations": [ { "type": "official", "cite": "100 N.C. 369" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "40 W. 40", "category": "reporters:state", "reporter": "W.", "opinion_index": -1 }, { "cite": "9 W. 44", "category": "reporters:state", "reporter": "W.", "opinion_index": -1 }, { "cite": "95 N. C., 573", "category": "reporters:state", "reporter": "N.C.", "opinion_index": -1 }, { "cite": "89 N. C., 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683307 ], "opinion_index": 0, "case_paths": [ "/nc/89/0402-01" ] }, { "cite": "87 N. C., 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8688560 ], "opinion_index": 0, "case_paths": [ "/nc/87/0181-01" ] }, { "cite": "87 N. C., 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8692814 ], "opinion_index": 0, "case_paths": [ "/nc/87/0372-01" ] }, { "cite": "12 Ired., 108", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 8685983 ], "opinion_index": 0, "case_paths": [ "/nc/34/0108-01" ] }, { "cite": "5 Ired., 22", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 11273637 ], "opinion_index": 0, "case_paths": [ "/nc/27/0022-01" ] }, { "cite": "4 D. & B., 414", "category": "reporters:state", "reporter": "D. & B.,", "opinion_index": 0 } ], "analysis": { "cardinality": 622, "char_count": 11420, "ocr_confidence": 0.515, "pagerank": { "raw": 4.7492960360752035e-08, "percentile": 0.29781137819231934 }, "sha256": "446273920b6589abc0a5c496ee22c32de96fbdd6f7d1fdf99833633763c08e13", "simhash": "1:f7b7bfe09261e5b5", "word_count": 2033 }, "last_updated": "2023-07-14T18:59:04.640355+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HENRY FARRIOR v. GEO. E. HOUSTON and another." ], "opinions": [ { "text": "Smith, C. J.,\n(after stating the facts). The only question presented is, whether the alleged imperfect description of the land in the levy invalidates the subsequent proceeding to sell, and renders the sale and Sheriff\u2019s deed void.\nThere have been numerous cases in which defects were alleged to exist in a levy upon land made under an execution from a Justice of the Peace, the imperfect description of the land being held to be too vague to warrant further proceedings for a sale.\nThe necessity of a reasonable certainty in ascertaining and identifying it, grew out of the fact that the process, with the levy, were required to be returned to the County Court where issued and order made -to the Sheriff to sell the land so- levied on. A levy was therefore a necessity in such cases, and of course the land must be sufficiently described to enable the Sheriff, under the venditioni exponas, to know what he was to sell, and that bidders might understand what they were buying, and yet very imperfect descriptions have been upheld. Thus, a levy \u201c upon all the lands of the defendant lying on Queen\u2019s creek,\u201d was held to be fatally defective without evidence of identity, but a levy \u201c upon all the lands of the defendant lying on the head waters of Ketchum\u2019s mill pond, adjoining the lands of said Ketchum,\u201d was held to be sufficient to warrant the sale. Huggins v. Ketchum, 4 D. & B., 414.\nAgain, in McLean v. Paul, 5 Ired., 22, Ruffin, C. J., says that a constable\u2019s levy upon land in this form: \u201c This day levied on the legal and equitable interest of Abraham Paul to 450 acres of land, more or less, in Robeson County, adjoining the lands of Giles S. McLean, Dugal McCallum, John McLean and others,\u201d is not objectionable upon its face so as not to admit of proof of identity.\nIn Judge v. Houston, 12 Ired., 108, the Sheriff, with a writ of fieri facias in his hands, endorsed on it: \u201c Levied this execution upon the land of Stephen M. Houston, on the east side of North East river, adjoining the lands of Stephen M. Grady and others, and, after due advertisement, sold the land levied on,\u201d &c. There were two tracts of land, on one of which the defendant lived, and had cultivated for several years, in turpentine; the other, which did not adjoin the first, but was two miles from it. The defendant in the action, who was defendant in the execution, objected to the levy, for its vagueness and uncertainty, and that it could not embrace the second tract, which did not touch the lands of Stephen M. Grady, as was conceded. In noting the objections, which were overruled in the Superior Court and brought up for examination by the defendant\u2019s appeal, PeaesoN; J., uses this language: \u201c The defendant\u2019s counsel did not advert to the difference between such a levy, which need not be returned, and the levy of a constable, which creates a lien, and must he returned, and must have a certain degree of particularity, so as to identify the land and enable the Sheriff to know which land to sell under the venditioni exponas, and of which, notice must be given. It is not easy to perceive,\u201d be adds, \u201cwhy a levy is required when the land is sold under the ft. fa.\"\nStill less reason exists for a levy upon land under the new practice, by which, the command of the writ in the nature of a venditioni exponas is to sell, in the absence of any personal estate which can be seized by the officer, the real property belonging to the debtor when the j udgment was docketed in the county', or acquired by him thereafter. The Code, \u00a7 448, par. 1.\nAccordingly, in answer to an exception to the absence of any levy, this Court say: \u201cThere would seem to be'little, if any, advantage, and certainly no necessity, for making a levy on the real property of the debtor under the present system of practice, which makes a lien, &c. * * * The only effect of a previous levy is, the specific appropriation of the property on which it is made, out of other equally liable to the plaintiff\u2019s debt, and may confer an equity on others to have the property first levied on sold and exhausted before resorting to the other real property of the debtor.\u201d Surratt v. Crawford, 87 N. C., 372; and the proposition is reiterated in Barnes v. Hyatt, decided at the same term, and reported at page 315. All that is essential is, that the requirements of the law be observed, and that it be fully made known what property, describing it with sufficient certainty, is exposed to sale, and what the bidder, who may purchase, acquires. The Sheriff\u2019s deed, whose recitals as to his own acts are prima facie evidence of the facts recited, expressly declaxes that the sale was made on the day and at the place specified by law,' of the lands and tenements of the said George B. Houston, levied and \u201c hereinafter described,\u201d and the boundaries of each tract are definitely set out in the deed. McKee v. Lineberger, 87 N. C., 181; Miller v. Miller, 89 N. C., 402.\nWe must, therefore, declare there is error, and reverse the judgment; - and it is so ordered.\nError. Reversed.", "type": "majority", "author": "Smith, C. J.," } ], "attorneys": [ "Mr. W. R. Allen, for the plaintiff.", "Mr. H. R. Kornegay, for the defendant." ], "corrections": "", "head_matter": "HENRY FARRIOR v. GEO. E. HOUSTON and another.\nLevy of Execution \u2014 Sale of Land under Execution \u2014 Sheriff\u2019s Deed; recitals in.\n1. A sale of real estate under an execution, issued on a judgment which is a lien thereon, is valid without a levy.\n2. All that is essential to a valid sale of real estate, under execution, is, that the requirements of the law be observed, and that it be fully made known at the sale what property is being sold.\n3. The recitals in a Sheriff\u2019s deed arejprima facie evidence as to his acts recited therein.\nCivil ACTION of Ejectment, tried before Philips, J., at November Term, 1887, of DupliN Superior Court. \u25a0\nWhen this cause was before the Court, upon the defendant\u2019s appeal from a ruling, that under the pleadings, and upon an averment of title to the land in themselves, they could not be heard to controvert that of the plaintiff, by opposing evidence merely, the ruling was declared to be erroneous, the judgment reversed, and a new trial awarded; 95 N. C., 573.\nUpon the last trial, the plaintiff, who claimed the property under one I. B. Kelly, exhibited in evidence an execution issued in the name of the said Kelly, against the defendant George E. Houston and Edward W. Houston, administrator, to Bland Wallace, Sheriff of Duplin, under which, after a levy of the same, the premises claimed were sold and conveyed to said Kelly. The levy was endorsed thereon in these words:\n\u201c Levied this execution upon George E. Houston\u2019s interest in 679 acres of land, more or less, in Kenansville Township, adjoining the lands laid off to him as a homestead, and others. B.\" WALLACE, Sheriff.\u201d\nIt appeared from the testimony of one A. B. McGowen, that 182 acres were assigned for the debtor\u2019s homestead, and,, that outside of this tract, the said George B. Houston then owned 679 acres of land in Kenansville Township, and no more, and that of these 679 acres, 353 acres adjoined the homestead, and 326 acres, that are now in controversy, do not adjoin the homestead, and are two miles distant from it.\nThe Sheriff\u2019s deed is as follows;\nSTATE OF NORTH CAROLINA, 1 Duplin CouNty. /\nKnow all men by these presents, that the undersigned, Sheriff of the County of Duplin, and State above written, by virtue of an execution issued from the Superior Court of said county, in the case following, to-wit: in favor of Isaac B. Kelly against George E. Houston and Edward W. Houston, administrator with the will annexed of Calvin J. Houston, deceased, and other executions and ven. ex., as of record doth appear, having levied said execution, or fieri facias, on the lands and tenements of the said George E. Houston, hereinafter described, on the 20th day of September, 1869 \u2014 said lands being in excess of his homestead, which had first been duly laid off \u2014 and having made advertisement according to law, and sold said lands and tenements at public sale, for cash, on the first Monday of November, 1869, at the courthouse door in said county, when and where Isaac B. Kelly, of the county of Duplin, and 'State of North Carolina, became last and highest bidder, at the sum of three hundred .and thirty dollars, which said sum has been paid to the undersigned, in accordance with the terms of said sale. In \u25a0consideration of the premises, and in further consideration \u25a0of the purchase money, paid as aforesaid- by the said Isaac B. Kelly, the. receipt whereof is .hereby acknowledged, hath \"bargained and sold, and by these presents doth bargain and :sell unto the said Isaac B. Kelly and his heirs, all the right, -.title and interest of the said George E. Houston, as aforesaid, \u25a0in and to the following tracts or parcels of land, levied on as aforesaid, situate in Kenansville Township, in said County of Duplin, and bounded as follows: 1st tract: Beginning at an ash in Dark Branch, and running S. 9 W. 44 poles to a pine at the road, same course continued to Neal\u2019s line; thence with his line N. 75 W. about 50 poles to a pine; thence with his other line S. 36J W. 249 poles to a pine in the calf pasture, N. 35J W. 186 poles to a pine; thence N. 40 W. 40 poles to a pine; thence N. 14 W. about 96 poles to the run of Dark Branch; thence down the run to the beginning \u2014 \u25a0 containing 326 acres, more or less. 2d tract includes all the land devised by George E. Houston, Sr., to\u2018said G. E. Houston, except 182 acres set apart and allotted to him as a homestead, and is bounded as follows, viz.: Beginning at a pine near the colored people\u2019s church, on the public road \u2014 Mc-Gowen\u2019s corner, formerly James Pearsall\u2019s \u2014 and the beginning corner of said George E. Houston\u2019s homestead tract, and runs with McGowen\u2019s line to Dr. I. O. M. Loftin\u2019s corner; then with his line to John A. Bryan\u2019s, formerly Oliver\u2019s corner ; then with his line, to the public road, west of the branch crossing the road; then along the road westerly to the foot of a cart-path at the turn of the road, the last corner of said G. E. Houston\u2019s homestead tract; then with his line to the beginning, supposed to contain-acres, more or less. To have and to hold said lands and premises, with all and singular the privileges, improvements and appurtenances to the same belonging, to him the said Isaac B. Kelly, his heirs and assigns, in as full and ample a manner as the undersigned is empowered by virtue of his office to convey and assure the same. And the undersigned, Sheriff as aforesaid, doth covenant, promise and agree to and with the said Isaac B. Kelly, his heirs and assigns, that he and they shall and may at all times hereafter, have, hold, occupy, use and possess said lands and premises, free and clear of, and from all incumbrances had, made or done by the undersigned, or by his order, means or procurement; and that the undersigned will forever warrant and 'defend said lands and premises to the said Isaac B. Kelly, liis heirs and assigns, so far as his said office of Sheriff will authorize and enable him to do, and no further.\nIn testimony whereof, the undersigned, Sheriff aforesaid, hath hereunto set his hand and seal, this 3d day of May, 1878. BLAND WALLACE, Sheriff, [Seal].\nSigned, sealed and delivered in presence of R. W. Hargrave.\nThe Court being of opinion that the plaintiff was not entitled to a verdict upon his proofs of title, and having so intimated, he submitted to a nonsuit, and appealed.\nMr. W. R. Allen, for the plaintiff.\nMr. H. R. Kornegay, for the defendant." }, "file_name": "0369-01", "first_page_order": 393, "last_page_order": 398 }