State ex rel. Hobbs v. Barefoot

Supreme Court of North Carolina

State ex rel. Hobbs v. Barefoot

104 N.C. 224

DecidedSeptember 15, 1889

StatusPublished

This text of 104 N.C. 224 (State ex rel. Hobbs v. Barefoot) 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

State ex rel. Hobbs v. Barefoot, 104 N.C. 224 (N.C. 1889).

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Opinion

Shepherd, J.

— after stating the case: (1.) The unlawful sale of the homestead was made in 1878, and a judgment [228]*228was rendered against the Sheriff, by reason thereof, in 1888. No action was ever brought on the official bond of the Sheriff for any of the causes set forth in the complaint, except the present suit, which was commenced in September, 1888. The unlawful sale constituted a breach of the bond, and the relator could have sued upon the same at once under The Code, §510. The statute was then putin motion, and more than six years having elapsed before the commencement of this action, his Honor very properly held that the cause of action was barred.

(2.) It may be that the “undue returns” upon which the other two causes of action are founded, were so connected with the laying off of the homestead that they fall within the above section of The Code. In which case they would likewise be barred, as an action is there given directly againt the Sheriff and his sureties. But as this does not distinctly appear, we will consider these causes of action with reference to The Code, §207(5, which provides that “the sureties to a Sheriff’s bond shall be liable for all fines and amercements imposed on him in the same manner as they are liable for other defaults in his official duty.” No counsel appeared for the appellant in this Court, but we take it that he would have urged that the bond would not become liable until the fines or amercements were actually imposed. Suppose that this construction of the statute be conceded, it certainly could not save the relator unless he obtained his judgment, or, at least, brought his action against the Sheriff within six years after the default.

In this case nine years elapsed after the “undue returns” were made before the judgments were rendered against the Sheriff. There is no allegation as to when the suits were brought. If they were commenced within the six years, it was the duty of the relator to have shown it. Hussey v. Kirkman, 95 N. C., 63. This he has failed to do; so, in any point of view, we hold that the causes of action are barred.

Affirmed.

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Shepherd, J.

— after stating the case: (1.) The unlawful sale of the homestead was made in 1878, and a judgment [228]*228was rendered against the Sheriff, by reason thereof, in 1888. No action was ever brought on the official bond of the Sheriff for any of the causes set forth in the complaint, except the present suit, which was commenced in September, 1888. The unlawful sale constituted a breach of the bond, and the relator could have sued upon the same at once under The Code, §510. The statute was then putin motion, and more than six years having elapsed before the commencement of this action, his Honor very properly held that the cause of action was barred.

(2.) It may be that the “undue returns” upon which the other two causes of action are founded, were so connected with the laying off of the homestead that they fall within the above section of The Code. In which case they would likewise be barred, as an action is there given directly againt the Sheriff and his sureties. But as this does not distinctly appear, we will consider these causes of action with reference to The Code, §207(5, which provides that “the sureties to a Sheriff’s bond shall be liable for all fines and amercements imposed on him in the same manner as they are liable for other defaults in his official duty.” No counsel appeared for the appellant in this Court, but we take it that he would have urged that the bond would not become liable until the fines or amercements were actually imposed. Suppose that this construction of the statute be conceded, it certainly could not save the relator unless he obtained his judgment, or, at least, brought his action against the Sheriff within six years after the default.

In this case nine years elapsed after the “undue returns” were made before the judgments were rendered against the Sheriff. There is no allegation as to when the suits were brought. If they were commenced within the six years, it was the duty of the relator to have shown it. Hussey v. Kirkman, 95 N. C., 63. This he has failed to do; so, in any point of view, we hold that the causes of action are barred.

Affirmed.

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104 N.C. 224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-hobbs-v-barefoot-nc-1889.

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