(DAVIS, J., dissenting.)
Jane R. Wilkes, doing business in the name of "The Mecklenburg Iron Works," having recovered judgment in the Superior Court of Davidson against the plaintiff in this action, A. C. Freeman, John Snotherly and J. M. Peacock, trading under the partnership name of Freeman, Snotherly Co. (which judgment was docketed in said court on 8 May, 1886), sued out execution on the same day and delivered it to the defendant, who was sheriff of said County, to be carried into effect. The latter made return thereof to the ensuing term, with endorsement as follows:
(275) "I have this day levied on the following personal property and taken the same into my possession to satisfy the within execution, viz.: One boiler, one engine, one corn rock, one flour mill and bolting cloth, one smutter, one planing matcher and matching machine, lot of belting and pulleys, three saws, one big saw and sawmill.
21 May, 1886." P. D. LEONARD, Sheriff.
Another endorsement shows a sale of the several articles and the price obtained for each, and the appropriation of the proceeds of sale, to wit: $373.41, to the discharge of the debt, interest and costs, in the aggregate $182.23, bearing date 31 May, 1886, and his official signature thereto.
The present action, begun on 19 June, 1886, is prosecuted by said A. C. Freeman, a defendant in that suit and plaintiff in this, against the said P. D. Leonard to recover the penalty imposed by section 461 of The Code, for selling property under execution contrary to the directions of chapter 10, of which that is part, and, after an adverse judgment of the justice of the peace, removed by defendant's appeal to the Superior Court.
It was there tried upon a single issue: Did the defendant sell real property, as claimed, contrary to the true intent and meaning of sections 456 and 487 of The Code? Answer: No.
It will be observed that no exception is taken to the restricted form of the inquiry, it being confined to land, while the complaint embraces property of any kind.
Besides the facts above summarily stated, the plaintiff further proved, that on the date of levy the sheriff took possession of the grist mill, sawmill and planing mill, all under the same roof, and locked up the building and delivered the key to J. M. Badgett to hold, with instructions to him to open the mill when necessary to deliver grist to customers, and to allow hands to work in the shed, but not to run the machinery; that the property levied on and sold consisted of a sawmill, a (276) planer bolted to timbers on the ground and framed into the building; a boiler in the mill set up and encased in masonry; and engine bolted to the timbers in the building; also mill stones, both flouring and corn, running and framed in the mill when built.
It was admitted that the defendant advertised at the courthouse door and some other places in the county by posters, nine days at courthouse and ten days at the other places. It was admitted that the above property belonged to the defendants in the execution.
It was proved also that J. M. Badgett was the general agent of the firm of Freeman, Snotherly Co., in the transaction of the firm business generally.
The said J. M. Badgett further testified, that on the day of sale A. C. Freeman, one of the firm, placed in his hands $250, and instructed him not to let the property be sacrificed, but to bid it off, which he accordingly did; that after the sale, immediately thereafter, on same day, Snotherly, another of the firm and one of the defendants in the execution, gave him a check for one hundred dollars, and also that Peacock, the other member of the firm, paid him some money; that he thought Freeman furnished the money out of his own funds. It was further testified by the witness Badgett, that none of the property was removed from its position, either by the sheriff or himself after the sale, and that immediately thereafter the firm went into possession of all the property and began operating the mill as usual.
His Honor held that the property levied on and put up by the sheriff was realty, and required thirty days notice, as for sale of real estate, and the only question was whether there was a sale, as contemplated under the said section of The Code.
The plaintiff contended that as the sheriff actually sold and left Badgett in possession, and made return as shown in the exhibits, he could not be heard to deny in this action that there was a sale, and that according to the evidence there was a sale, and that the issue submitted (277) by the court should be answered in the affirmative by the direction of the judge, and asked the judge so to charge. The judge refused the instructions and the plaintiff excepted.
The defendant insisted that if Badgett bid off the property as the agent of the firm, defendants in the execution, or for them, that then
there was no sale, such as is contemplated under said section of The Code, and that it should be left to the jury to decide, under the evidence, whether he so purchased, and if he did, that the judge should instruct the jury to find the issue in favor of the defendant.
The judge charged the jury that if they found from the evidence that Badget bid off the property as his own, and was to hold it as security for the amount paid by him, with the right in the defendants in the execution to redeem, that this constituted a sale; but if he bid off the property for the defendants in the execution and only looked to them personally for the repayment of any money advanced by him in the payment of his bid, then there was no sale, and they should answer the issue, "No." Plaintiff excepted.
There was a verdict for the defendant. Judgment and appeal by plaintiff.
We do not pass upon the question as to the proper plaintiff to sue and whether the county, to whose use one moiety goes, should not be associated with the plaintiff, as no such point is made in the case.
The case was tried under the ruling of the court, and in accordance with the terms of the issue, as if the sale was of real estate in fact and whether the statutory requirements were observed in conducting (278) the proceedings for such sale. The case does not state under what circumstances, and by what arrangement with the owner of the soil, these articles were there placed. If for a temporary purpose, and to be removed when that was accomplished, the mill and other things would not merge their character as personalty in the land upon which they stood, and the property therein vest in the owner of the premises who assented to this temporary use, and the property would not thereby pass to the latter and constitute and become his improved real estate, as would be the effect if such erection and fixtures owned by one and placed upon his own premises and the title to the articles as unchanged personal estate would remain in the same proprietor. It is quite certain the sheriff acted under the impression that he was levying on and selling personal property, as well from his designating it as such, as from his manner of selling in detached and separate articles, and so also the plaintiff considered his action by placing funds in an agent's hands to buy in the property when sold.
Again, the case states that it was admitted "That the above property (that is, such as was seized), belonged to the defendants in the executions," thus discriminating between the title to the goods and the title to the land upon which they stood, and indicating some such understanding between the separate proprietors, as has been suggested.
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(DAVIS, J., dissenting.)
Jane R. Wilkes, doing business in the name of "The Mecklenburg Iron Works," having recovered judgment in the Superior Court of Davidson against the plaintiff in this action, A. C. Freeman, John Snotherly and J. M. Peacock, trading under the partnership name of Freeman, Snotherly Co. (which judgment was docketed in said court on 8 May, 1886), sued out execution on the same day and delivered it to the defendant, who was sheriff of said County, to be carried into effect. The latter made return thereof to the ensuing term, with endorsement as follows:
(275) "I have this day levied on the following personal property and taken the same into my possession to satisfy the within execution, viz.: One boiler, one engine, one corn rock, one flour mill and bolting cloth, one smutter, one planing matcher and matching machine, lot of belting and pulleys, three saws, one big saw and sawmill.
21 May, 1886." P. D. LEONARD, Sheriff.
Another endorsement shows a sale of the several articles and the price obtained for each, and the appropriation of the proceeds of sale, to wit: $373.41, to the discharge of the debt, interest and costs, in the aggregate $182.23, bearing date 31 May, 1886, and his official signature thereto.
The present action, begun on 19 June, 1886, is prosecuted by said A. C. Freeman, a defendant in that suit and plaintiff in this, against the said P. D. Leonard to recover the penalty imposed by section 461 of The Code, for selling property under execution contrary to the directions of chapter 10, of which that is part, and, after an adverse judgment of the justice of the peace, removed by defendant's appeal to the Superior Court.
It was there tried upon a single issue: Did the defendant sell real property, as claimed, contrary to the true intent and meaning of sections 456 and 487 of The Code? Answer: No.
It will be observed that no exception is taken to the restricted form of the inquiry, it being confined to land, while the complaint embraces property of any kind.
Besides the facts above summarily stated, the plaintiff further proved, that on the date of levy the sheriff took possession of the grist mill, sawmill and planing mill, all under the same roof, and locked up the building and delivered the key to J. M. Badgett to hold, with instructions to him to open the mill when necessary to deliver grist to customers, and to allow hands to work in the shed, but not to run the machinery; that the property levied on and sold consisted of a sawmill, a (276) planer bolted to timbers on the ground and framed into the building; a boiler in the mill set up and encased in masonry; and engine bolted to the timbers in the building; also mill stones, both flouring and corn, running and framed in the mill when built.
It was admitted that the defendant advertised at the courthouse door and some other places in the county by posters, nine days at courthouse and ten days at the other places. It was admitted that the above property belonged to the defendants in the execution.
It was proved also that J. M. Badgett was the general agent of the firm of Freeman, Snotherly Co., in the transaction of the firm business generally.
The said J. M. Badgett further testified, that on the day of sale A. C. Freeman, one of the firm, placed in his hands $250, and instructed him not to let the property be sacrificed, but to bid it off, which he accordingly did; that after the sale, immediately thereafter, on same day, Snotherly, another of the firm and one of the defendants in the execution, gave him a check for one hundred dollars, and also that Peacock, the other member of the firm, paid him some money; that he thought Freeman furnished the money out of his own funds. It was further testified by the witness Badgett, that none of the property was removed from its position, either by the sheriff or himself after the sale, and that immediately thereafter the firm went into possession of all the property and began operating the mill as usual.
His Honor held that the property levied on and put up by the sheriff was realty, and required thirty days notice, as for sale of real estate, and the only question was whether there was a sale, as contemplated under the said section of The Code.
The plaintiff contended that as the sheriff actually sold and left Badgett in possession, and made return as shown in the exhibits, he could not be heard to deny in this action that there was a sale, and that according to the evidence there was a sale, and that the issue submitted (277) by the court should be answered in the affirmative by the direction of the judge, and asked the judge so to charge. The judge refused the instructions and the plaintiff excepted.
The defendant insisted that if Badgett bid off the property as the agent of the firm, defendants in the execution, or for them, that then
there was no sale, such as is contemplated under said section of The Code, and that it should be left to the jury to decide, under the evidence, whether he so purchased, and if he did, that the judge should instruct the jury to find the issue in favor of the defendant.
The judge charged the jury that if they found from the evidence that Badget bid off the property as his own, and was to hold it as security for the amount paid by him, with the right in the defendants in the execution to redeem, that this constituted a sale; but if he bid off the property for the defendants in the execution and only looked to them personally for the repayment of any money advanced by him in the payment of his bid, then there was no sale, and they should answer the issue, "No." Plaintiff excepted.
There was a verdict for the defendant. Judgment and appeal by plaintiff.
We do not pass upon the question as to the proper plaintiff to sue and whether the county, to whose use one moiety goes, should not be associated with the plaintiff, as no such point is made in the case.
The case was tried under the ruling of the court, and in accordance with the terms of the issue, as if the sale was of real estate in fact and whether the statutory requirements were observed in conducting (278) the proceedings for such sale. The case does not state under what circumstances, and by what arrangement with the owner of the soil, these articles were there placed. If for a temporary purpose, and to be removed when that was accomplished, the mill and other things would not merge their character as personalty in the land upon which they stood, and the property therein vest in the owner of the premises who assented to this temporary use, and the property would not thereby pass to the latter and constitute and become his improved real estate, as would be the effect if such erection and fixtures owned by one and placed upon his own premises and the title to the articles as unchanged personal estate would remain in the same proprietor. It is quite certain the sheriff acted under the impression that he was levying on and selling personal property, as well from his designating it as such, as from his manner of selling in detached and separate articles, and so also the plaintiff considered his action by placing funds in an agent's hands to buy in the property when sold.
Again, the case states that it was admitted "That the above property (that is, such as was seized), belonged to the defendants in the executions," thus discriminating between the title to the goods and the title to the land upon which they stood, and indicating some such understanding between the separate proprietors, as has been suggested.
But this does not furnish a means of escape from the penalty, for, as personal goods, they were advertised but nine days at the courthouse, though the full period of ten days, as pointed out in the statute, elsewhere.
The charge of the court places the case before the jury as making the liability depend upon an effectual legal sale of the goods in passing the property to the purchaser, and instructed them if the bidding was in fact for the defendants, and their money was used in paying it, there was no sale in the sense of the statute and there would have been brought about no change of property. This would be so if (279) another creditor seized and sold it, the sale not obstructing his access to the debtor's property. But the levy put the property in the officer, and it would pass out of him by the sale, and if conveyed by deed the estate would pass to the purchaser, though he would hold in trust for the debtor. But the present case is not so strong, for the sales exceeded the sum deposited with Badgett the bidder and supposed agent by $123, while the other partners after the bidding though on the same day supplied him with more money.
Aside from the legal consequences of such a sale we understand the statute as applying to it as well. It was in fact a sale, a passing of the property vested in the officer by the seizure from him to the purchaser and as equally demanding an observance of the mandate of the statute in making the sale as if a stranger bought, for it is not less official delinquency in the officer in either case, and the penalty is incurred when he proceeds to sell and does sell without a proper regard to the law.
There is error, and the judgment must be reversed and a new trial awarded.
Error.
Cited: Causey v. Plaid Mills, 119 N.C. 181.