Several exceptions were taken to the charge of his Honor, but the one which was chiefly relied upon in this Court, and which is sufficient to dispose of this appeal, is embraced in the instruction that “ even if the deputy did levy, unless he retained possession either by himself or his agent, the lien of the levy was lost, and the deed of assignment, if made and registered when there was no levy on the property, conveyed a good title to the goods to the plaintiff”
The ruling of the Court finds apparent support in the language of Ruffin, C. J., in Roberts v. Scales, 1 Ired., 88. He says “ that the true principle, therefore, is, as we think, that the property of a debtor, as against creditors, ought not by operation of law to be divested and vested in the Sheriff, but by some act as obvious and notorious as the nature and state of the property will permit. That, in the case of ordinary personal chattels like the present, is effected by taking and keeping *83possession, and by that only, and therefore it is required. * * * The execution only creates a lien; the taking possession carries the property.. Then e converso the property which was gained by possession also goes with it.” It will be observed that the foregoing case was one where the debtor was permitted to remain in possession after the levy, and it was held that the levy and actual seizure of the goods under a junior execution prevailed. .We cannot believe that the Chief Justice meant to decide that there could be no levy, or that the levy was in law abandoned, unless the goods were retained in the actual possession of the officer or his agent; for he is careful to restrict his general expressions as to what shall constitute a levy by using the significant words “ as against creditors.” This view is sustained by his opinion in Mangum v. Hamlet, 8 Ired., 44, where he recognizes the validity of such a levy, by holding that although the Sheriff leaves the property in the possession of the debtor, he has such a special property therein as to sustain an action of trover against one who wrongfully converts it. ' In that case the defendant moved the Court to “ instruct the jury that by leaving the property in the debtor’s possession the plaintiff (a constable) abandoned his levies.” The Court refused to give the instruction, and the ruling was sustained upon appeal. All doubt upon this point, however, is removed by PearsoN, J., in Bland v. Whitfield, 1 Jones, 122. Pie says that “ in regard to personal property it is necessary for the officer to go to it, so as to have it in his power to take it into actual possession, if he choses. It is safest for him to do so and carry it away, for then he can hold it against all persons, but it is not necessary for him to do it or for him to touch the property; the levy is perfected by his making the endorsements upon the execution. He may leave the property in the possession of the debtor and take a forthcoming bond, or he may leave it there without any bond, and the effect of the levy is to give him such an interest and possession, in *84contemplation of law, as will enable him to bring trespass against any one who interferes with it, except another officer.”
So, it clearly appears that what was said in Roberts v. Scales, supra, referred only to cases where the rights of junior execution creditors were involved. Notwithstanding the plain and emphatic words in the latter part of the above quotations, to the effect that the exception is only applicable to “ another officer,” the plaintiff insists that he stands upon the,same footing as a junior execution creditor who seizes the property while in the possession of the debtor. The distinction between the two in this respect runs through all of our decisions, and we cannot conceive how sec. 447, sub-sec. .1, of The Code, relied upon by the plaintiff, affects it.
in Harding v. Spivey, 8 Ired., 63, in speaking of the preference given a junior execution creditor, where the senior execution creditor prevents his execution from being acted on, says: “That this reasoning has no application to an alienation by the debtor himself, for that, on the other hand, is considered a fraud by the debtor as tending to defeat the process of the law for the recovery of judgment debts, because, from necessity, the rule as to him is caveat emptor. And in Finlay v. Smith, 2 Ired., 225, he says: “ Indeed, the law decrees the alienation of property subsequent to the teste of a fieri facias to be itself fraudulent, since it tends to defeat the process of the law.” At common law a fieri facias bound the property of the debtor so as to avoid any .alienation by him, and this law prevailed in our State until the adoption of the Code of Civil Procedure. Up to that time the simple issuing of a writ of fieri facias bound the property from its teste, and if followed by a levy, it was held sufficient to defeat the rights of innocent purchasers, who bought before the levy'. Grant v. Hughes, 82 N. C., 216; Harding v. Spivey, supra.
*85In England the law was changed by 29 Chas. II, so that the lien only commenced from the delivery of the writ to the Sheriff. Of this act the Chief Justice, in Harding v. Spivey, supra, says: “But it may be remembered that that only changes the period to which the lien relates from the teste to the delivery of the writ, still creating a lien before the seizure of the property, and therefore still applying the maxim caveat emptor.”
In this State we have advanced a step further, and for the purpose of protecting bona fide purchasers for value and other execution creditors, we have provided (The Code, §447, subsec. 1) that the lien as to them shall operate only from the levy. This act does not profess to change the existing law as to what shall constitute a levy, nor does it alter in any respect the character and effect of the lien acquired by it, as already determined by a long series of decisions in our reports. This rule may work hardship in some cases, and may be a proper subject for additional legislation. So far, it has only been deemed necessary to change the time when the lien shall commence.
This is an improvement upon the old law, for there is no notoriety in the mere issuing of the writ of fieri facias, while the actual presence of the Sheriff, his seizure of the property, the making of the endorsement and other attending circumstances are generally sufficient to put purchasers upon their guard.
We are of the opinion that his Honor erred in giving the instruction complained of, and that a new trial should be awarded the defendant.-
Error.