#### PETER ISLAY v. WILLIAM W. STEWART.

Dec. 1838.

ijijjg purchaser at an execution sale, buys the interest of the defendant in execution, and cannot object, when the price is demanded, that the goods belonged to himself, or to a third person.

Upon a sale of goods made by a trustee, mutually appointed by the parties contending for the goods or their proceeds, if it were part oí the agreement that the trustee should at all events collect the money, and hold it subject to the decision of certain arbitrators, then in a suit by the trustee for the price of the goods before any award made, it would be repugnant to the agreement to permit one of the parties who purchased the goods to withhold the purchase money upon an allegation of a preferable claim, or to sufferthe validity of such claim to be adjudged when its opponents had not an opportunity to contest it.

The legal interest of a defendant in undivided chattels may be seized and Sold -under execution.

Justices’ executions are by law made returnable in three months from their date (see 1 Rev. Stat. ch. 62, sec. 161, but it is not necessary that they should be returned on the last day of the three months. They may be returned sooner, and aliases taken out and acted upon.

Where the controversy in a cause turns upon, the meaning of the parties to a verbal agreement in relation to a matter upon which there is room for dispute, it is proper for the Judge to leave it to the jury as a question of fact to ascertain what was the agreement of the parties in relation to such matter.

When the purchaser of goods takes them away, it amounts to a delivery.

This was an action of assumpsit, brought to recover the price of a quantity of corn sold and delivered, to which the defendant pleaded the general issue. Upon the trial at Guilford on the last circuit before his Honor Judge Pearson, it appeared in evidence that the plaintiff as constable, had, under certain executions against the goods of one Car-mack, levied on his’share in a quantity of corn, of which one undivided third part belonged to the defendant, and the other two Undivided third parts, were supposed to be the properly of Carmack. At the day of sale the defendant appeared, claimed the share levied on as his under a coveyanoe from the said Carmack, and forbade the sale thereof. The plaintiff refused to proceed with the sale without an indemnity, and Smith, the principal execution creditor, instructed the plaintiff to prepare a bond of indemnity. The plaintiff retired to prepare the bond, and in his absence it was agreed between Smith and the defendant, that the sale should proceed, and they, the said Smith and the defendant, would refer to arbitration the decision of the question, which of them *161should .be entitled to the proceeds. It did not d:stinctly appear whether the plaintiff agreed to sell under this arrangement, or refused to sell except as constable, and under the A executions ; nor was there any express declaration of the parties to the agreement, whether,, in the event of either of them becoming the purchaser, payment of the price was to be made to the plaintiff, and the application of the money depend on the award of the arbitrators, or the payment itself to be delayed until the arbitrators should settle the disputed right. The plaintiff, however,a fter this agreement, sold the share which was levied on as Carmack’s, and ihe defendant became the purchaser No award had been made, and it was insisted by the plaintiff, 1st, that the sale was made by him as constable, and not under the arrangement; and 2dly, if made under the arrangement, he was entitled and bound to collect the price and hold the money for the benefit of him or them to whom it might be awarded thereaf er. The defendant offered evidence to show that he had a good title by Carmack’s conveyance to the corn sold, which testimony was rejected by the Court as irrelevant. He then insisted that the plaintiff had not a right to sell as constable, because the executions under which he levied had been renewed before the expiration of three months after ■ they first issued, and secondly, because an undivided share in corn was not liable to execution. He further objected to the claim set up under a sale pursuant to the arrangement between Smith and the defendant; that by that arrangement the defendant was not bound to pay the price before the right to the money was ascertained in the manner agreed on. The Court left it to the jury as a question of fact, in what character the plaintiff sold, instructing them that if the sale were made by him merely as an officer, and by virtue of his levy, the objections to the validity of the sale because of the renewal of the executions and of the joint possession of the corn, did not avail the defendant: — and that if the sale were made by him under the arrangement, the right of the plaintiff to recover would depend upon what the jury should infer from the evidence to have been the understanding, or agreement respecting the payment of the money. If it were a part of that agreement that whether the creditors or defendant bought, *162the money was to be received by the plaintiff, and by him held subject to the award of arbitrators^ the plaintiff was entitled to recover. But if it were a part of that agreement, * 4 — 1 that if the creditors or defendant bought, the price was not to be exacted until an award made, then the plaintiff was not entitled to recover. Another objection was made by the defendant, that the plaintiff had not shown any delivery of the corn to the defendant; upon which the Court instructed the jury, if the defendant after the purchase carried away the corn (as was expressly testified by witnesses) this amounted to a delivery. The plaintiff had a verdict and judgment, and the defendant appealed*

J. T. Morehead, for the defendant.

Mendenhall, for the plaintiff.

Gaston, Judge,

after stating the case as above proceeded : We do not perceive any error in the rejection of the testimony offered, or in the instructions given. Considering the sale as an ordinary execution sale, there was no warranty of title express or implied. The purchaser at such a sale buys the interest of the defendant in execution, and cannot object, when the price is demanded, that the goods bought belonged to himself or to a third person. Regarding the sale as it probably was, the sale of a trustee mutually appointed by the contending claimants of the property, the validity of their respective claims was to depend on the decision of a special tribunal, before whom those parties were to litigate these claims. If it were part of the agreement that the trustee or commissioners should at all events collect the money — and unless this were part of the agreement, the plaintiff could not recover — it would be repugnant to the agreement to permit the purchase money to be withheld upon an allegation of a preferable claim, or to suffer the validity of such claim to be adjudged, when its opponents had not an opportunity to contest it. We know of no principle of law which forbids a seizure and sale of a defendant’s legal interest in undivided chattels. In contemplation of law it is perfectly distinct from that of his cc-tenant. Each hath a several interest, though the occupation be joint. Justices’ executors are by law made returnable in three months from their *163date, and after the expiration of that time they become effete. But it is not necessary that they should be returned on the last day of the three months. They resemble in this respect the warrants of Justices which are “ returnable on or before, thirty days from the date thereof.”

The main controversy in the case probably turned upon the meaning of the parties to the agreement in relation to a matter upon which there was room for dispute, whether the arbitration was to precede, or follow after the payment of the purchase money. There could be no doubt but that if any other than the parties to the agreement bought at the sale, the price was to be immediately paid — and there was no explicit understanding that there should be an exception in case either of the parties bought. The Judge was warranted, we think, in leaving this part of the case to the jury as one of fact, to be determined upon the evidence. If the fact, were, as the jury found it to be, then under the agreement the plaintiff became the lawful owner of the goods pro hac vice; as such was entitled to the price thereof, and must hereafter account for the money received upon the sale, to those who shall .show their preferable right to it. Whether the defendant have or have not such right, the judgment in this case does not determine.

On the question of delivery we see no ground for doubt.

Per Curiam. Judgment affirmed.