Opinion
(December Term, 1843.)
1. Any irregularity in the return of a justice's execution levied on land, as that it was not returned to the next court, or that the personal property was not exhausted, or any error of the court in ordering a sale of the land, when the personal property levied on has not been exhausted, can only be objected to by the defendant in the execution.
2. On the application of a sheriff for the advice of the court how he is to apply moneys raised by him under several fi. fas. on judgments in court and writs of venditioni exponas issuing on orders for the sale of land levied on by a justice's execution, the court will not look behind the orders of sale and the venditioni exponas issuing thereon.
APPEAL from Bailey, J., at Fall Term, 1843, of EDGECOMBE.
Whitaker for plaintiff.
B. Moore for defendant.
This case came before the court upon the application of the defendant, the sheriff of Edgecombe, to the county court of that county at August Term, 1841, which application was in the following words, viz.:
"The sheriff, being doubtful to whom to apply the moneys raised by the sale of the defendant's lands, as mentioned in his return on the fi. fa. of Wilson C. Whitaker against Benjamin P. Porter, brings into court here the sum of $558.42, and asks the advice of the court how to appropriate the same, which return is in the following words, (183) viz.:
"William D. Petway, sheriff of Edgecombe, brings into court here the sum of $558.42, arising from the sale of B. Porter's lands; and not knowing how to apply the said moneys, asks the court how to appropriate the same upon the following statement of facts, to wit:
"James C. Marks, a constable, whose office expired at February Term, 1841, having in his hands sundry executions against the defendant Porter, to part of which Asa Edmondston and others were sureties, levied some of those executions, to wit, those in favor of L. H. B. Whitaker, Pittman, and Coker, on two negroes and a tract of land of Asa Edmondston, and on Porter's property 11 January, 1841. The executions of John Barfield, T. and B. Hunter were levied 21 December, 1840, on Porter's hogs, horses, corn, etc., and on three negroes, as well as on Porter's land,; the executions of Denton and others were levied on 2 February, 1841, on Porter's land and property alone. Part of the personal property of Porter was sold by Marks on the Friday of February court, 1841, and by Mark's returns brought the sum of $246. The remainder of the personal property of Porter (the negroes) was sold on the fourth Monday of March, 1841, for $551. The whole amount was applied by Marks to a part of the executions in his hands, which were levied on 21 December, 1840, in favor of Barfield, excluding a part of Barfield's executions and the executions of T. and B. Hunter then levied. The personal estate of Edmondston levied on by Marks remains unsold. On 25 May, 1841, Porter accepted notice of the levies on his land, and Marks returned them to May Term, 1841, of the county court on the second day thereof, and by order of the court venditioni exponas issued on them to August Term, 1841. On 13 May, 1841, Thomas Maner, a constable, levied the execution of James J. Phillips on the land alone and returned the same to May Term, 1841, upon which, by order of the court, a venditioni exponas issued, returnable to August Term following. At May Term, 1841, Wilson C. Whitaker obtained his judgment and execution issued thereon returnable to the succeeding August Term. (184) The land was sold under all these several executions, which are now on file and returned herewith." Signed "Wm. D. Petway, Sheriff."
Whereupon Wilson C. Whitaker moved the court for a rule on the sheriff, first, to appropriate the said moneys to the execution of James J. Phillips, and then to his own; and the sheriff, being in court, here has notice of the rule without any other service. And the rule was continued.
At February Term, 1842, the following entry was made on the minutes: "Rule on plaintiff Wilson C. Whitaker to show cause why the constable, James C. Marks, may not amend his constable's levies so as to describe more particularly the boundaries and location of the lands levied on. Rule granted."
At May Term, 1842, the motion of Wilson C. Whitaker was overruled, and it was ordered by the court that the moneys in the hands of the sheriff be appropriated pro rata to the venditioni exponas issuing from May Term, 1841. From this order Wilson C. Whitaker appealed to the Superior Court.
The case came on for hearing in the Superior Court of law of Edgecombe County upon this appeal, when the following order was made; "This case now coming on to be heard upon the return of the defendant, who is the sheriff off Edgecombe, and the exhibits filed in the cause. The court is of the opinion, and doth so adjudge, that the moneys mentioned in the said return arising from the sale of the land of Benjamin Porter be applied to the venditionis issuing upon the levies made by James C. Marks and Thomas L. Maner, according to the dates of the said levies."
From this order Wilson C. Whitaker appealed to the Supreme Court.
Both the County and Superior Courts proceeded in their judgments on this rule, not barely to discharge it as to the plaintiff, but directed the sheriff how he should dispose of the money raised by the sale of the land among the other execution creditors — a thing not called for by the rule, and which, therefore, we shall not determine in this opinion of ours. We, however, concur with the judge in his opinion that the plaintiff has no right to any of the money arising from the sale of Porter's land, as there is not enough to pay the justice's judgments. It is true that the levies on Porter's land by the constable Marks ought regularly to have been returned to the next term of the county court, which would have been February Term. And it is equally true that the court should not have made any order for the venditioni to issue until all the personal property which had been levied on had been first sold and the amount credited on the justice's judgments; then the balance only of the money due on the judgments would have to be raised out of the land under the venditionis. Henshaw v. Branson, 25 N.C. 298. But who had a right to take advantage of these errors and irregularities? Porter, the defendant in these justice's executions, and nobody else, had a right to object. He, so far from raising an objection, actually waived all errors and permitted the orders to be made at May Term as prayed for by the plaintiffs in those justice's judgments. It is a maxim that consent takes away error. The venditioni in each case recites the levy on the land by the constable, and also the date of that levy. All these levies were made before the plaintiff obtained his judgment against Porter; and, of course, as they are not void, have priority to the plaintiff's execution.
As to the amendments permitted to be made on the returns of the justice's executions by Marks, all we can say is that the amendment was at May and was not appealed from. The question of its propriety is therefore not before us. We cannot, in deciding this rule, look behind the orders of sale and the writs of venditioni exponas issued thereon. It is to be recollected that the writ justifies the sheriff, and that he (186) is therefore bound to pay the money to the creditors according to the preferences appearing upon their executions. Here Whitaker's is a fi. fa. tested at May Term, while those of the other creditors are writs of venditioni exponas on levies before May. The rule ought therefore to have been discharged and the judgment is affirmed with costs.
PER CURIAM. Affirmed.
Cited: Dewey v. White, 65 N.C. 229; Millikan v. Fox, 84 N.C. 110.