Aycock Ex Rel. Isler v. Harrison

Supreme Court of North Carolina

Aycock Ex Rel. Isler v. Harrison

65 N.C. 8

CourtSupreme Court of North Carolina

DecidedJanuary 5, 1871

StatusPublished

Cited by6 cases

This text of 65 N.C. 8 (Aycock Ex Rel. Isler v. Harrison) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Aycock Ex Rel. Isler v. Harrison, 65 N.C. 8 (N.C. 1871).

Pincite

Opinion

Beade, J.

A ft. fa. issued after the death of the plaintiff, and when he had no representative in Court, must be set aside as having been erroneously issued. Wingate v. Gibson, 1 Murph. 492.

So, a ven. ex. to sell land, tested after the defendant’s death without a sei. fa. against the heirs, is null and void. Samuel v. Zachary, 4 Ire. 377.

Where there is a judgment, and aft. fa. or ven. ex. issues, during the life of the defendant, the Sheriff may proceed to sell, although the defendant die before the sale. And so he may, when theft, fa. or ven. ex. issues after the death but is tested before. But if the Sheriff, for any cause, return the process without a sale, no alias can issue tested after the death of the defendant without a sci. fa. against the heir.

The reason is, that when the process issues or is tested before the defendant’s death, the ministerial officer can take no notice of his death but must obey the process, which being, tested before the death binds the land.

But when the Sheriff returns the process without a sale an alias cannot issue, without the supposed or actual adjudication of the Court, and if an alias issue it will be supposed that the Court ordered it in ignorance of the fact of the death, and it will be set aside on motion, unless the heir or other person interested be made a party. The reason for which is, that the heir or other person in interest ought to have an opportunity to show any defense which he may have — as that he had a debt against his ancestor of equal dignity with the creditors, or that he has paid other liens of *10 prior teste, or that the widow is entitled to dower and the like. Samuel v. Zachary, supra.

These principles are decisive of this case: Judgment was obtained in 1861. The defendant, J. M. E. Harrison, died in 1864. And in 1866, the execution issued and bore teste. It is to be taken that the Court ordered its issue in mistake of the fact of the defendant’s death, and when that fact came to the knowledge of the Court it was proper to set it aside and to refuse any other process until the party in interest was brought in.

When this case was before this Court heretofore (63 N. C. R. 145,) it did not appear to the Court that the defendant was dead.

There is no error. This will be certified.

Per Curiam.

Free access — add to your briefcase to read the full text and ask questions with AI

Beade, J.

A ft. fa. issued after the death of the plaintiff, and when he had no representative in Court, must be set aside as having been erroneously issued. Wingate v. Gibson, 1 Murph. 492.

So, a ven. ex. to sell land, tested after the defendant’s death without a sei. fa. against the heirs, is null and void. Samuel v. Zachary, 4 Ire. 377.

Where there is a judgment, and aft. fa. or ven. ex. issues, during the life of the defendant, the Sheriff may proceed to sell, although the defendant die before the sale. And so he may, when theft, fa. or ven. ex. issues after the death but is tested before. But if the Sheriff, for any cause, return the process without a sale, no alias can issue tested after the death of the defendant without a sci. fa. against the heir.

The reason is, that when the process issues or is tested before the defendant’s death, the ministerial officer can take no notice of his death but must obey the process, which being, tested before the death binds the land.

But when the Sheriff returns the process without a sale an alias cannot issue, without the supposed or actual adjudication of the Court, and if an alias issue it will be supposed that the Court ordered it in ignorance of the fact of the death, and it will be set aside on motion, unless the heir or other person interested be made a party. The reason for which is, that the heir or other person in interest ought to have an opportunity to show any defense which he may have — as that he had a debt against his ancestor of equal dignity with the creditors, or that he has paid other liens of *10 prior teste, or that the widow is entitled to dower and the like. Samuel v. Zachary, supra.

These principles are decisive of this case: Judgment was obtained in 1861. The defendant, J. M. E. Harrison, died in 1864. And in 1866, the execution issued and bore teste. It is to be taken that the Court ordered its issue in mistake of the fact of the defendant’s death, and when that fact came to the knowledge of the Court it was proper to set it aside and to refuse any other process until the party in interest was brought in.

When this case was before this Court heretofore (63 N. C. R. 145,) it did not appear to the Court that the defendant was dead.

There is no error. This will be certified.

Per Curiam.

Cite This Page — Counsel Stack

Bluebook (online)

65 N.C. 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aycock-ex-rel-isler-v-harrison-nc-1871.

Opinion

Related

Cite This Page — Counsel Stack