Mason v. . Osgood

64 N.C. 467

• Court: Supreme Court of North Carolina
• Decided: June 5, 1870
• Status: Published

Opinion

Dick, J.

A sheriff has authority under an execution to levy upon and sell the lands of the judgment debtor. The purchaser at such sale has a right, upon the payment of the purchase money, to demand a deed from the sheriff, and when the deed is executed, the title will have relation to the time of sale. An administrator’s authority is more limited where he sells the lands of the intestate under a license obtained from Court. He is a mere agent of the Court to execute a naked power, and a purchaser acquires no right to the land until the sale is confirmed, and title made, under an order of the Court granting the power of sale. If the administrator fails to report the sale, the purchaser may apply to the Court by a motion in the cause, for a rule to compel such return, so that the Court may confirm the sale if it sees proper.

In our case, as the sale was not confirmed, the plaintiff" has no right to the land,-and no claim to equitable relief.

There is another objection to the relief demanded, apparent on the face of the bill of the plaintiff. The defendant Hume has not the legal title, and therefore cannot be declared a trustee for another person. The administrator had no authority to make a sale to the co-defendant, and of course no title passed. The title is still in the heirs-at-law of the intestate, and they are not parties. The Superior Court now has no power to compel the administrator to make a report of the sale. That relief ought to have been sought by a motion in the cause, in the County Court.

There is no error.

Pee Cueiam. Judgment affirmed.