Wade v. . Pellitier

71 N.C. 74

• Court: Supreme Court of North Carolina
• Decided: June 5, 1874
• Status: Published

Opinion

Reade, J.

If the sheriff had had several executions against the defendani, E. W. Pellitier, some good and some bad, and had sold under all, and in his deed to the purchaser had recited the bad and had not recited the good, the title would have passed, notwithstanding the mis-recital or non-recital of the good. Por this, Carter v. Spencer, 7 Ired. 14, and the cases there cited are authority.

But in the case before us there is no recital of any power, good or bad, under which the sheriff sold the land of E. ~W. Pellitier, nor indeed is there any recital or pretense in the deed to the purchaser that he had sold the land of E. W. Pel-litier at all. The recital is that he had sold the land of J. J. Pellitier, and the deed purports to convey the laud of J. J. Pellitier only. And there is nothing but parol evidence to connect the sale or the deed with the land of E. W. Pellitier. This cannot be. It would be' the same as to sell and convey land by parol, contrary to the statute of frauds. The effect of the deed is to pass title to the land of J. J. Pellitier, or -whatever interest lie had therein, but it does not pass title to the land of E. W. Pellitier or any interest he had therein, not because of any mis-recital or non-recital of executions, but because the deed does not purport to convey the land of E. W. Pellitier at all under any power good or bad. Brem and Means v. Jameson, 70 N. C. Rep., p. 566.

There is error. This will be certified.

Per Curiam. Venire de novo.