
    THE STATE TO THE USE OF WILLIAM JORDAN & ÁL. vs. JOSHUA A. POOL & AL.
    A sale of land, under a ji. fa. bearing teste after the death of the defendant in the execution, where his heirs have not been made parties, is void.
    The cases of Wood v. Harrison, 1 Dev. & Bat. 35G, and Bowen v. McCullough, N. C. T. R. 261, cited and approved.
    Appeal from the Superior Court of Law of Pasquotank County, at the Spring Term, 1846, his Honor Judge Bailey presiding.
    The following were the facts of the case :
    The defendant, Pool, was the Sheriff of' Pasquotank, and the other defendants his sureties on his official bond. At the March term, 1841, of the Court of Pleas and Quarter Sessions of that County, several judgments were obtained against Josiah Jordan, who died during the same week and after their rendition. Executions upon these judgments were issued from the same term, returnable to the succeeding one in June. One of them was levied upon all the property of Josiah Jordan, both real and personal, and togéther with the others, which were not levied., duly returned. From June term, a ven-ditioni exponas issued upon the one which had been levied, and ji. fas. upon the others. The property so levied on was, at the September term of the Court, sold under all the executions, and produced a sum sufficiently large to discharge them, and leaving in the hands of the defendant Pool, a surplus of $1200. To recover this sum the action is brought upon the Sheriff’s official bond, by the relations who are the heirs-at-law of Josiah Jordan, and against whom no process had issued. At the sale made by the defendant Pool, the personal property produced a sum sufficient to discharge the venditioni exponas.
    
    The presiding Judge charged the jury, that, under the facts of the case, the sale of the land by the Sheriff was void, as he had no authority in law to make it, and that the surplus was not in his hands in his official character, and the action could not be sustained.
    
      
      Heath, for tlie plaintiff.
    Badger, for the defendant.
   Nash, J.

In the opinion of his Honor, we concur. The only question sent here is as to the validity of a sale, made under such circumstances. The land was sold under ft. fas. which bore teste after the death of Josiali Jordan, without any sci. fa. against the heirs. The effect of a sale so made, has already been declared by this Court in the case of Wood v. Harrison, 1 Dev. & Bat. 356. The action was to recover the land sold, and the Court decided that the plaintiff was entitled to a verdict, because it was sold by the Sheriff under a ft. fa. which was tested after the death of the defendant in the execution, without having previously brought in the heirs.- The same principle was decided in the prior case of Bowen against McCullough, N. C. T. Rep. 261. In this case^ the sale was made under like circumstances : it is therefore void. The title to the land is unchanged — it is still in the heirs of Josiah Jordan. They have suffered no wrong or injury. As the land is yet theirs, they have no right to the money produced by the sale. The retention of it by Pool is no breach of his official bond. The plaintiff cannot sustain the action.

PeR Curtam. Judgment affirmed»  