O'Briant v. . Wilkerson

Citations

• 30 S.E. 126
• 122 N.C. 304
• 1898 N.C. LEXIS 251

Syllabus

<p>Action for Damages — Sale Under Execution — Liability of Sheriff- — Liability of Execution Creditor — Validity of Execution — Pleading—Burden of Proof — Non Suit Under Chapter 109, Acts of 1897.</p> <p>1. Where a sheriff acts under an execution regular in form and issued by a court of competent jurisdiction, he incurs no liability to the judgment debtor for the seizure and sale of his property, although the judgment on which the execution issued may have been invalid.</p> <p>2. Where, in an action by a judgment debtor against the judgment creditors to recover damages for procuring the sheriff to wrongfully seize and sell plaintiff’s property, the complaint alleged that the sheriff sold his property under an execution, it was incumbent on the plaintiff to show on the trial that the seizure and sale were unlawful, and upon his failure to offer any evidence as to the invalidity of the judgment, it was not error to non-suit the plaintiff under Hinsdale’s Act (Chapter 1Ü9, Acts of 1897).</p>