{ "id": 8685176, "name": "WILLIAM T. OWEN vs. GEORGE T. BARKSDALE", "name_abbreviation": "Owen v. Barksdale", "decision_date": "1847-12", "docket_number": "", "first_page": "81", "last_page": "83", "citations": [ { "type": "nominative", "cite": "8 Ired. 81" }, { "type": "official", "cite": "30 N.C. 81" } ], "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": "7 Ired. 14", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 8683741 ], "opinion_index": 0, "case_paths": [ "/nc/29/0014-01" ] }, { "cite": "7 Ired. 152", "category": "reporters:state", "reporter": "Ired.", "opinion_index": 0 } ], "analysis": { "cardinality": 237, "char_count": 4362, "ocr_confidence": 0.475, "pagerank": { "raw": 4.6702388248417886e-07, "percentile": 0.927864520286704 }, "sha256": "b5b470dea7160c6aff724f5ea1cfe2e2c7154e27f89e95067b9182e159e9abc2", "simhash": "1:898504e6486497c3", "word_count": 796 }, "last_updated": "2023-07-14T20:50:05.193463+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WILLIAM T. OWEN vs. GEORGE T. BARKSDALE." ], "opinions": [ { "text": "Nash, J.\nIn the opinion of the Judge below we entirely concur. The plaintiff claims to be a purchaser at an execution sale, made by the sheriff In order to sustain his title, it is sufficient for him to show a judgment, execution sale, and the sheriff\u2019s deed. He did show a judgment in favour of Holmes and Bunting against Har-man Owen and an execution, but he has entirely failed to show, that that execution, or any other sufficient one, ever was in the hands of the sheriff or was so, at the time of the alleged sale. The sheriff\u2019s deed is not evidence of the fact; nor does it set forth that execution or any other valid one. It is true the recital in a sheriff\u2019s deed is no part of it; the deed is good without it, and of course if he misrecite the execution under which he sells, or recites no execution, his sale is nevertheless good, if, at the time he makes it, he has, in his hands a valid one.. But a more serious objection to the plaintiff\u2019s recovery is, that there is no evidence in the case, that the sheriff ever did make any sale of the land in dispute. When a sheriff receives an execution, it is his duty to levy it, and make public sale of the property so levied on ; he cannot deliver it to the plaintiff in the execution in satisfaction of his debt, nor can he sell it at private sale ; and until he does sell it as the law directs, his deed can convey no title to the purchaser. It is the judgment, execution, sale, and conveyance by him, that completes the conversion of the property.\nThere is no return upon the venditioni exponas, by the sheriff, of any sale ; nor is it essential there should be. When made, it is not conclusive on the parties, but may be controverted, and if omitted, may be supplied by testimony aliunde. The sheriff himself would have been a competent witness to prove the fact. McEntire v. Durham, 7 Ired. 152. Carter v. Spencer, 7 Ired. 14. Here, there is not the slightest evidence of any sale by the sheriff, apart from his deed, nor is it shown he ever had in his hands any valid execution whatever. If the deed were an ancient one, and possession had been held under it, a presumption of a sale might arise from the contents of the deed.\nPee Cdbiam. Judgment affirmed.", "type": "majority", "author": "Nash, J." } ], "attorneys": [ "No counsel for the plaintiff.", "Strange and W. Winslow, for the defendant." ], "corrections": "", "head_matter": "WILLIAM T. OWEN vs. GEORGE T. BARKSDALE.\nIn order to support the title of a purchaser at an execution sale, he must shew a judgment, execution, sale and conveyance to him by the officer by whom the sale purports to have been made.\nThe deed of a sheriff, reciting a judgment, execution and sale, is not evidence of those facts.\nThe sheriff is a competent witness to prove that there was a sale.\nWhere the sheriff\u2019s deed is an ancient one and possession has been held Under it, a presumption of a sale may arise from the contents of the deed.\nThe cases of McEntyre v. Durham, 7 Ire. 152, and Carter v. Spencer, 7. Ire. 14, cited and approved.\nAppeal from the Superior Court of Law of Sampson' County, at the Fall Term, 1847, his Honor Judge Caldwell presiding.\nThis is an action of trespass quare\u25a0 clausum fregit. On the trial, in order to show title, the plaintiff offered in evidence the transcript from the records of the County Court of Sampson, showing a judgment and venditioni exponas, in behalf of Holmes and Bunting against one Harman Owen, and a sheriff\u2019s deed covering the land in question. The defendant insisted that no sale being endorsed on the execution, or otherwise made to appear, the sheriff\u2019s deed was not evidence of the fact. It was further insisted by the defendant, that it did not appear by the sheriff\u2019s deed, or otherwise, that any sale had been made by the sheriff, under a venditioni exponas, corresponding with the judgment in favor of Holmes and Bunting. The sheriff\u2019s deed to the plaintiff which is made a part of the case, recites, as his authority for selling the land, a venditioni exponas against Harman Owen, but does not set forth the name of the plaintiff and was for a different sum from that in the execution produced ; nor does it appear that any execution, in the name of Holmes and Bunting against Harman Owen, ever was in the hands of the sheriff. The presiding Judge, was of opinion, that, under the circumstances, the sheriff\u2019s deed conveyed no title to the plaintiff, who thereupon submitted to a non-suit, and appealed.\nNo counsel for the plaintiff.\nStrange and W. Winslow, for the defendant." }, "file_name": "0081-01", "first_page_order": 89, "last_page_order": 91 }