When a sheriff is told to enforce a court judgment against someone who owes money, how hard does the sheriff have to look for the debtor's property before reporting back to the court that the debtor has nothing to seize?

Plain-English summary

Sheriff Lewis C. Rosser asked what a sheriff must do to find a judgment debtor's property for execution of a judgment. The 1979 Attorney General answered that the sheriff must exercise due diligence: the search and inquiry a reasonable person would make in conducting his own affairs, while considering the sheriff's other duties.

The opinion relies on Parks v. Alexander, 29 NC 412. There, a sheriff returned "no property" without looking for property, demanding payment, or asking about property. The court rejected reliance on a general report that the debtor was insolvent. As the opinion recounts, the court said the sheriff should go to the debtor's house in search of property, demand payment, and make inquiry.

The AG said due diligence is "not measured by any absolute standard" and depends on the facts of each case. The opinion does not address civil liability, the sheriff's bond, damages, or a creditor's remedies.

Currency note

This opinion was issued in 1979. Check current North Carolina law and later decisions before relying on its description of a sheriff's execution duties.

What this means for you

Sheriffs and deputies. A general report of insolvency does not replace a reasonable search and inquiry. The opinion recognizes that the sheriff's other duties may be taken into account when judging diligence.

Judgment creditors. The opinion gives a standard for evaluating a sheriff's search, but does not decide what remedy a creditor has for an inadequate return.

Common questions

Is a report that the debtor is insolvent enough for a "no property" return?

No, on the facts recounted from Parks. The sheriff there had made no effort to find property and no demand or inquiry. The court said he could not rely on a general report of insolvency.

Must the sheriff go to the debtor's house?

The opinion recounts Parks as saying the sheriff had a duty to go to the debtor's house to look for property, demand payment, and inquire. It does not turn those facts into a fixed checklist for every execution; it says diligence depends on each case's circumstances.

What if the sheriff has many other duties?

The AG expressly says the sheriff's and deputies' other duties may be considered. The standard remains reasonable diligence under the circumstances.

Does the opinion say the sheriff can be sued for a poor search?

It does not address liability or remedies. Its conclusion is about the diligence required to locate property.

Background and statutory framework

The opinion cites Parks v. Alexander, 29 NC 412, for the rule that a sheriff may not rely only on a general report of insolvency after making no effort to locate the debtor's property. It then defines due diligence by reference to a prudent person's care in protecting his own affairs, with the circumstances and the sheriff's other duties taken into account. It cites Black's Law Dictionary, 80 C.J.S. and 157 ALR for that definition.

Citations

• Parks v. Alexander, 29 NC 412
• Black's Law Dictionary, 3d Ed.
• 80 C.J.S., Sheriffs and Constables, Sec. 44, Sec. 45
• 157 ALR 196, 204

Source

• Landing page: https://ncdoj.gov/opinions/sheriff-execution-duty-of-sheriff-to-discover-property-of-judgment-debtor/

Original opinion text

Requested By: Sheriff Lewis C. Rosser, Lillington, N.C. 27546

Question: What is the duty of the Sheriff in finding property of the judgment debtor for the purpose of execution of judgment?

Conclusion: The sheriff is required to exercise due diligence to locate property of the judgment debtor. He should make such search and inquiry as a reasonable man would exercise in conduct of his own affairs to find property of the debtor, taking into consideration the other duties of the Sheriff and his Deputies.

In Parks v. Alexander, 29 NC 412, the sheriff had made a return of "no property" on an execution without making an effort to find any property or making any demand for payment or inquiry for property.

The Court held that the sheriff could not rely upon a general report that the debtor was insolvent. That it was the duty of the sheriff to go to the debtor's house in search of property to levy on; that he should make demand for payment and inquiry for property. The Court stated: "We may be very certain that if the debt had been the sheriff's own, he would have made inquiries which would have led to the seizure and sale of the debtor's property." 29 N.C. at 414.

The general rule is that the sheriff must exercise due diligence to locate the debtor's property.

Due diligence means reasonable diligence, such as a prudent man would exercise in the conduct of his own affairs to protect his own rights and interest. That which is reasonable under the circumstances. Due diligence is not measured by any absolute standard, but depends on the relative facts of each case and the other duties of the Sheriff and his Deputies may be taken into account. Black's Law Dictionary, 3d Ed.; 80 C.J.S., Sheriffs and Constables, Sec. 44, Sec. 45; 157 ALR 196, 204.

Rufus L. Edmisten
Attorney General

James F. Bullock
Senior Deputy Attorney General