Nora. — A judgment of a Court of Record m this State, wilt bind a moiety of the lands from the tim of its rendition, if the Plaintiff sue out an elegit. Jones & others v. Edmonds, 3 Murph. 43. But if the Plaintiff resort to a fieri facias, the lands are boun only as chattels, viz. from the teste of execution. Ibid.—State v. Magniss, 1 Hay. 99. Arnold v. Bell, Ibid 397 Ingles v. Donalson, 2 Hay. 57. Williams’s adm'rs. v. Bradley, Ibid. 363. Stamps v Irvine, 2 Hawks, 232. Gilhey v. Dickerson, 3 Hawks, 293. If several writs of fi. fa. issue from the same term, upon judgments obtained at different terms, and come to the hands of the Sheriff at the same time, the Plaintiffs in the executions have no preference, one to another, but must be paid pro rata, Jones & others v. Edmonds, 3 Murph 43. An execution bearing the first teste, will be satisfied before one ot a younger teste, first delivered and levied upon property, but not sold before that of the first teste comes to the Sheriff’s hands. Green v. Johnston, 2 Hawks, 309. But if the Sheriff returns that the money was levied under an md. minty, given by the Plaintiff in a junior execution, and that he would not ¡nave acted without such indent ity, he in effect makes an appropriation of the money to that execatiop, although he sets forth ali the ex-*111acutions in his return, and prays the advice of the Court how he shall dispose of the money. Varborough v. State Bank, 2 Dev Rep. 23. An alias fi. fa. regularly issued, has relation to the teste of the first fi. fa. and creates a lien from that time. Gilkey v. Dickerson, 2 Hawks, 341. And if such alias ji. fa. come to the hands of the Sheriff before he has sold property It vied on under a younger execution it shall have, the preference. Brasfield v. Whitaker, 4 Hawks, 309. When an execution is levied upon property, & the Plain.iff m such execution, to favor the Defendant, forbears to sell, & holds on under the lien thereby created, the property ra iy be sold under executions of younger date. Carter v. Sheriff of Halifax, 1 Hawks, 483. When a fi. fa. is returned, “ levied upon certain property, but not sold for want of bidders,” if the Plaintiff takes out another ji. fa. instead of a vend expo, he thereby discharges the levy. Scott’s ex’r. v. Hill, 2 Murph. 143. Where a Sheriff had levied an execution on certain lands, and a vend. expo, together with a special fi. fa. issued afterwards on the same judgment, and was levied by the Sheriff on goods, which seven days prior to that time, he had seized by virtue of a fi. fa. issuing on a younger judgment, the Court directed the proceeds of the sale to be paid in ¿satisfaction of the younger fi. fa. which had first come to hand, and had been first levied. Allemong & Locke v. Allison Kelly, 1 Hawks, 325. A Jás-tice’s execution binds chattels from Us teste. Benedict v. Arnold, 3 Hawks, 275.—(Binds only from its levy, by the act of 1828, ch. 12) But such execution binds lands from its teste, and an order of sale subsequently made, has relation to the levy ; and among competing creditors respect must be had to the first levy. Lash & others, v. Gibson, 1 Murph. 266. Ellar v. Ray, 2 Hawks. 568. An attachment upon land creates a lien, but if the Plaintiff upon obtaining judgment, does not have the land condemned, and issue a vend. expo, but sues out a genera! ji. fa. he loses the benefit of his lien. Amyett’s lessee v. Backhouse. 3. Murph. 63.
Den on the demise of Bell v. Hill, 2 N.C. 85, 1 Hayw. 85 (1794)
Den on the demise of Robert Bell v. Green Hill.
Fraud is not barely to bo suggested, but must be proved. A judgment by default upon a tobacco bond, is not final. A judgment (final) binds hnds, from the time of its rendition, as to purchasers, from the Defendant, but not so as to defeat the title of one purchasing under the execution of a subsequent judgment. As between creditors, it is not the first judgment, but the first execution, that gives the preference.
Tiiis was an action of ejectment, upon the trial of which' at this term, the following farts appeared in evidence, via: In the month of February, in the year 1780, and for a long time preceding, William Massey was seised in fee, in the county of Franklin, of the. premises in question ; and in that month tito Administrator of Thomas Bell, dec. brought suit in the County Court of Franklin for the recovery of a sum of money due from the said William Massey to the said Thomas Bell in his lifetime ; and in the said'term had a judgment by default; which was continued from term to term, til! June term 1783: at which term they obtained a final jugment; but before the issuing of any writ of execution, in the month ot August, 1783, the Defendant, Massey, obtained an injunction a* gainst the judgment and execution, which was dissolved on the 18th April, 1789 ; and afterwards a venditioni ex-ponas was issued the 24th July 1789, upon which the Sheriff sold the land to the lessor of the Plaintifr, and executed a deed to him, dated the 5th February, 3 790.— On the other side it appeared, that in June term, 1785, in the same County Court, one Devany brought suit against the same William Massey, upon a bond for five thousand pounds weight of tobacco, and had judgment by de - *86fault ; and in September term, 1783, he obtained a final judgment: whereupon execution issued, and on the 22nd June, 1784, the Sheriff sold to Green Hitt, he having express notice, at the time of the purchase, of the judgment obtained by Bell's Administrators, and being warned by the Administrator not to purchase; and the Sheriff executed a deed to him, dated the 22nd of September, 1784. The Defendant also made title another way: on the 2nd of July, 17&2,William Massey conveyed to his son James Massey, and lie in the month of June, 1784, to Hill; and in June, 1784, the deed from Massey to his son was registered : but Massey, the father, continued in possession until after the sale to Hill, and then moved away — This James Massey was not a person of any substantia! property at. that time; sometimes he liad, and sometimes lie had not property ; what he had was brought from foreign piares, and it was frequently claimed and recovered by better owners. In September or October, 1784, he offered to buy land of one of tfie witnesses and offered Hill’s bond in payment, upon which there was an in-dorsement of two hundred pounds paid to William Massey ; and twelve months before that time, the witness said it was talked of that William Massey had sold to his son ; and another witness said, that some time in 1784, James Massey drove beef from I-Iill’s, and delivered them to the old man ; and late in 1784, or in 1785, let him have a horse; and that in 1784, James had several ne-groes. The original deed from William Massey to James was not produced but the copy only — bufo wi Joel Parish, whose name was subscribed as a witness, said he liad frequently endeavoured to recollect whether lie ever did attest such a deed, and he could not remember be ever did, or ever knew of such a conveyance. — This was the evidence on both sides.
Haywood for the Plaintiff
The deed from William to his son, was fraudulent. It appears from the amount of the judgment of Bell’s Administrators, compared with the price of the land as it is stated in the Sheriff’s deed, and even in that of William Massey to James, that he was indebted to the Administrators singly, in a much greater sum than his property was worth., and the contest between these parties arises from the circumstance of his insolvency. His property was not adequate to the discharge ol both debts — one or other of them must lose his debt, owing to this circumstance. There are several *87circumstances the law has deemed evidences of feaud, when attending the conveyances of an involved man_ Those who mean to cover their property, generally use. every colouring of fairness their invention can discover; and the fraud of the parties can no otherwise be developed hut by circumstances : positive proof is never obtainable. Amongst the circumstances the law deems evidences of fraud, there is none stronger, because none more suspici • ous, than that of the conveyance of an indebted father to his child. The law deems it fraudulent as against a creditor, unless the child can prove a valuable consideration actually paid. 2 Ncls. 800. 1 Jilo. 76. .3-mbl. 599.-— In the present case, nothing was paid by James till the latter part of year 1784, when it seems some cattle were delivered, that came immediately from the defendant; who, before this delivery, had become a purchaser in June, 1784, both from the Sheriff and from James ; but from 1782, in the month of July, the time the conveyance to James bears date, until late in the year 1784, no money was paid. Had this been a fair transaction, would not some steps have been taken in all this time to have procured payment ? Can it be supposed the old man would have rested satisfied for upwards of two years, having made an absolute conveyance to his son, who was at best in slender circumstances, and as proven in evidence, of slight character, without payment, and even without any security for it ? Is it not a circumstance of suspicion, that this deed was not registered till June, 1784,the very time Hill became the purchaser? is it not suspicious, that the original is now to be ¡¡reduced, when if is evident James Maoseij did not take it from the Register’s office, having no use for it, Hill being the owner of the land at the time of registration, and ever after? Is it not a matter of some curiosity, that the witness cannot remember ever to have subscribed that deed, and that there is no vestige in his mind of any remembrance of such a deed ? Another mark of fraud mentioned in Twyne’s case, 3 Hep. 81, is, that the donor continued in possession and used them as his own, Ac. Here the conveyance is said to have been made in July, 1782, yet the grantor remained in possession till the year 1784, in the latter part thereof; and the witnesses, who are all of the neighbourhood, tell us, they heard nothing of this conveyance, except Mr. Norwood, who says, he had heard the sale talked of twelve months before; James offered *88{o buy bis lamí in September or October, 1784, a period that will bring us back to September or October, 1783, when Devany’s judgment was obtained, and when of course it became necessary to devise some, method to get rid of Bell's judgment, obtained in the June preceding.— Another mark of fraud mentioned in Twyne’s ease is, if the conveyance be made pending the writ. Here Bell’s Admin-* istrators had sued, their suit was depending & judgment by default, obtained in February, 1780, was continued till June, 1783and in the interim, July, 1782, the deed appears to bear date — can a conveyance like this, immediately and directly tending to frustrate the suit of a creditor for a just debt, receive the sanction of a court of justice ? Does it not appear plainly, that the contracting parties had this debt of Bell's Administrators in view, at the time the conveyance was made in July,1782, if in fact it was executed at that time ? Had the injunction been dissolved at any time before. Hill’s purchase, surely Bell’s execution would have prevailed over such a conveyance ; and the circumstance of Hill’s becoming a purchaser, and making a payment to old JUassey, carmot make that a valid transaction, which at the time of his purchase, and before, was totally void as to Bell’s Administrators.— Here then wc have almost every circumstance of fraud mentioned in Twyne’s case, and several that are not mentioned in it — here is an indebted father conveying to his son, who pays no valuable consideration ; which cou-veyance is made pending a writ against him, and in secret ; the grantor continues in possession, and uses the premises as his own — to my apprehension, if Twytie’s ease is law, both according to the principles of that case, & the common sense of mankind, there cannot he a case of more apparent fraud than the pr. sent. I will now therefore dismiss this part of the case, without further consideration, little doubting but that that part of the Defendant’s title,which rests upon this conveyance, will be deemed fraudulent and void.
As to the other part of his title, the facts are briefly these — After the judgment -«f Bell’s Administrators, and while the writ of execution is suspended by injunction, Devany’s judgment is obtained, and the land sold under-it to the Defendant: afterw ards the injunction is dissolved, execution upon the first judgment issues, the laud is sold under that also, and the Plaintiff becomes the purchaser. Upon which statement I beg leave to oh-*89serve, that in England, the elegit is the only execution that affected the lands of the debtor. It was introduced when the advantages of commerce began to be perceived, and the extension of credit became necessary, in the 13th of Ewd.I. All that this statute says, is : “That when a debt shall be recovered or acknowledged in the king’s court, or damages adjudged, it shall be hereafter in the ejection of him who sues for such debt or damages, to sue out a writ, that the Sheriff shall cause to be made of the lands and chattels of the. debtor, or that the Sheriff shall deliver to him all the chattels of the-debtor, excepting oxen and beasts of the plough, and the half of his laud until the debt shall be levied, by a reasonable ap-praisement and extent,” &c.. Not a word is said of binding the lands by elegit, from the time of the judgment $ hut as this was a remedial law, made for the benefit of creditors, it was proper to ádvance the remedy by construction as far as was consistent with the principles of justice, and to make each species of property liable to the execution, as far back, for the benefit of creditors, as the nature of that properly would admit. In the case of personal property it was already liable from the teste of the writ, and it might have been productive of injustice to have stretched the relation any further: it was going a good way in favour of the creditor, to say his execution should reach the goods in the hands of a bona, fide purchaser, who had acquired them after the teste of the. writ of execution. These goods might not have been purchased in the neighbourhood of the Defendant’s residence, where the purchaser might have had notice of the .Defendant’s circumstances — they, might have been removed to a distance, and sold in places where neither the Defendant nor his circumstances, were known. But as this was law at the time of passing the act, and as that was made manifestly for the benefit of creditors, the Judges concluded it was most proper to let that lien upon the personalty remain as it was — but with respect to the real estate, they thought this act should be extended as far as possible, without inconveuience, for the benefit of creditors. It was made for their benefit, and should receive a construction promotive of the views of the Legislature; and as lands could riot bo removed, and so were not liable to the inconveniencies attendant on personal property just now mentioned, the courts said, they should he hound as from the time of the judgment* *90[> was in compliance with the views of the act to give it such a construction, and accordingly it hath prevailed ever since ; and the elegit, formed agreeably to this construction, commands delivery to be made of a moiety of the lands the debtor had the day of tiie judgment rendered, or at any time since. Cunning, verb. Elegit. 2 Inst. 395, 396. 7 Rep. 38. Co. Litt. 222. a. 30. 1 Rep. 99. b. Lili. Ent. 57% 575. 1 Morg. PI. 348, 345, 342— Hawk. Ab. Co. Litt. 157. 102. 2 Mk. 609, 440,441.— 8 Rep. 171. Oro. lac. 512. By the law of England therefore, as received and used in this country till the time of passing the act of 5 Geo. II. eh. 7. which will be commented upon by and by, these lands would have been undoubtedly bound by tiie first judgment. But it may be said, the word binding, as applied to executions, means only a taking from the debtor a power to dispose of his effects until the debt is satisfied. This doubtless is a part of tiie meaning of that term, but is not the whole meaning of it when used in relation to lands to be affected by the execution : it means also tiiat the first judgment creditor has the- first right to satisfaction preferably to any other judgment creditor. Vigilantibus non dormi-entibusjura subveniunt. He who lias taken tiie earliest measures to secure his debt, and lias been at the trouble & ex-pence to obtain his judgment, should not be excluded tiie benefit of it by another creditor who lias substantiated his demand at- a later period. We shall not cite authorities to prove, that the Defendant, after a judgment, cannot dispose of his lands himself. No part of our case requires it, and we presume besides no lawyer will deny it. But it is important in this part of our progress, to prove that the creditor acquires a lien upon the land by his judgment •, and that the first lien is first entitled to satisfaction. This point is completely established by the following authorities. Co. Litt. 287, 6. or 289, b. 4 Rep. 66, b. Off. Exec. 138. Bull. 104. 105. Carth. 255. 1 Mo. 253. 3 Pic. 399. 2 Ba. Ab. 364, 341. 3 Ba. Ab. 26. 2 Ba. Ab 433. These cases are express, that if A. obtains a judgment, and then B, and B has the land extended, that A may afterwards take out his execution, and extend the same lands, and evict the possession oí-B: and no other reason can be assigned for this, but. that the first lien is by law entitled to the first satisfaction. Even in the case of personal chattels, which at the common law are bound from the teste of the writ, though *91there are some contradictory opinions to be found, the true rule is, that the vendee tinder an execution of a subsequent teste, was liable to be evicted of the1 oossession, by a vendee under an execution of a prior teste : and it was to prevent this inconvenience of the common law, that the statute of frauds was made in England; which directs the goods to he bound from the delivery of the writ to the Sheriff, this being a matter of more notoriety than the teste of an execution, and better adapted to give publicity to the fact of the goods being bound. All the cases in tlie .books, when properly considered, will be found to proceed upon a principle of tenderness to an innocent vendee, under an execution of a subsequent teste, not apprised of the former; but none of these cases go so far as to protect a vendee under arrexccution of a subsequent teste or delivery, knowing of another execution of a prior teste or delivery. 2 'Term Hep. 731, 732.
I mention these things to shew the uniformity of tire law in its adherence, in all cases, to this rule, (hat the first lien is to be first satisfied ; and because they may be of some service to oppose the arguments to be made use of on the other side. [Judge Jlshe — Mr. Attor-torney you liad better answer the arguments of the counsel on the other side, after they are made, and not by anticipation.] It will be insisted on the other side, that the sale of lands, and of personal estate, are in all upon the same footing ; I hope I shall he excused ing as I do, that it is of importance to prove, that this judgment of Bell’s Administrators, had it taken place before the act of Geo. II. would have bound the land from the time of the judgment given ; and that it would have been entitled to satisfaction preferably to any judgment afterwards rendered ; and that an elegit upon it, would over-reach any elegit upon any subsequent judgment: it seems to me essential to establish these several points as inconteslibly as possible, before we proceed to consider whether the law has been altered by the act of Geo. II. One other remark I would beg leave to add in this part of the argument, (Í will be as short as possible) it is this —that notwithstanding the execution of a judgment is suspended by writ of error, certiorari, death of the Defendant, or other cause ; yet the form of 1 he elegit, issued after the removal of the obstacle, is never altered ; and although such suspension may have continued for years, when the elegit issues, it is to take and deliver the moiety think-*92of tlio lands of the debtor, which he had at the time oP the judgment rendered, or at any time since. Now if .the suspension of the execution had be.cn deemed in law to give a preference to an intermediate judgment creditor, who could procure the lands to be extended and delivered to him, during flic suspension of the prior execution, the law would have provided an elegit, after such suspension, of another form: it would at least have been conditional as to the lands the debtor had at the time of the judgment. Co. Lilt. 115. h. says : “ That one of the best arguments or proofs in law, is drawn from the right entries and course of pleading, for the law itself speaketh by good pleading and therefor a Littleton saith, “ It is proved by pleading, as if pleading were ipsius legis ‘oiva vox” As therefore after such suspension the form of the elegit still continues the same, it is an evidence, that the law' remains the same also 5 and that the writ of error, by its intervention, makes no alteration in the lien whatever. It is further demonstrated by this circumstance, that when a judgment is obtained against an ancestor, the heir is proceeded against by sci.fa. which treats him as terre-tenant not as heir. 3 Hep. 12, IS, Sfc. and no action of debt will lie upon the judgment against him as heir ; and he must be proceeded against only as terre-tenant, for this reason- — that the land is bound by the judgment, and is in custodia legis, for the benefit of the creditor, and does not descend to him as heir, but upon condition, till the debí be satisfied. All this is performed by the mere operation of the judgment itself, by its attaching upon the land the moment it is pronouuced : whence it may be inferred, that if a suspension by writ of error, certiorari, and other suspending process at law, is incapable to give a preference; and that in the present case the lien of the Plaintiff’s judgment during the continuance of the injunction, and after its dissolution, continued as unimpaired as if would have done had the injunction been a writ of error only : in which case it is evident (as the law was up to the time of the act of Geo. H.J the Plaintiff, after the determination thereof, would have been entitled to satisfaction out of the land, even though another subsequent judgment creditor, as JDevany was in the present case, had caused it to be extended and delivered by an intermediate execution. Indeed it would be very preposterous, if the ..Defendant should have it in his power by procuring or *93not procuring a writ of error or injunction, to giveJ preference to, or postpone the first judgment creditor to a second, according to his whim or caprice : it would open a wide door to fraud, and in a great measure put all creditors in the power of a debtor who was not able to pay all — he might say if you will agree to allow me such and such advantages, you shall have the benefit of your judgment, otherwise you shall have nothing,* I will procure a writ of error, or injunction, and in the interim confess judgment to another, or suffer him to obtain judgment for want of a defence, and to have his execution satisfied out of the property I have. Were the law so, it would 9peak in contradictions : your execution is entitled to preference, but the Defendant may defeat you of that preference if he pleases. Again, it would be in many' instances to put it in the power of the officer, to give preference to whom he pleases, if in this case the Sheriff, after having notice of the lien of Bell’s judgment, had desisted from selling to Hill, then Bell’s execution would have had the preference, and would have been satisfied after the dissolution of the injunction j and the Sheriff would not have been punishable for not selling, for he might have returned the truth of the case, that the land was bound by a prior judgment: but if he proceeds to sell, according to the doctrine insisted on for the Defendant, the sale is good, and there is nothing left to satisfy the judgment of Bell’s Administrators: and I do not know, nor do I believe the Sheriff can he made answerable to Bell’s Administrators! because in the case of lands, he only sells such right as the Defendant hath, and the purchaser takes it with its circumstances ; that is to say, in the presenr case, liable to such prior lien as Bell’s Administrators had on it by means of their judgment: so either way the Sheriff is safe, and has it moreover in his power, according to what is insisted upon for Defendant, to give preference to the one or the other at his election. The grounds of such a conclusion cannot he solid. There is no rule of law better established than this, that the act of the Defendant, of law, or of the officer, shall never affect or diminish the right, of a third person, the Plaintiff. 5 Rep. 87,. 1 Rep. 10á, a. 105. b. 106. b. So that it is clear, neither the act of the Defendant in procuring the injunction, nor of toe law in permitting it to issue, nor of the Sheriff in selling the land io Hill when he did, could place the 'Plaintiffs,, with respect to *94tbeir lien, i o any worse situation than if these several acts had never taken place : and if those acts do not vary this case from common cases, I think we are warranted in drawing this conclusion, that liad the case now before the court occurred before the act of Geo. II. the Plaintiff’s execution though last issued and executed, would have given the best title to the land in question. This brings us to the act of Geo. II. It will be argued, that since the passing of that act, and the act of Assembly of 1777. ch. 3. sec. 29. the execution upon a judgment, is by fi. fa. not by elegit; and that theji.fa. against lands, operates precisely in the same manner as the fl.fa. against personal chattels $ which it will be urged, gives a preference to the first vendee, even though he purchase under an execution of a later judgment. It is true, the case.’ of Smallcomb and Buckingham, reported in Salk. 20. in I. Bay. and other books, tends that way : in Salkeld, the court are represented to have said, at common law, if two writs had been of the same teste, the Sheriff was bound to execute that firsts which was first delivered ; by the same reason, if two writs ofji.fa. come to the Sheriff in one day, he ought to execute that first that carne first to hand, for he has no election ; and in this case there is a prius and posteñas in the same day, in consequence the Sheriff makes himself liable for executing the writ first that came last. Upon this case I would beg leave to remark, there are two things said that are strongly in fa-vour of the Plaintiff — he ought to execute that first, that first came to hand : by the act of frauds and peijúry in England, the delivery of the writ to the Sheriff created the lien on the goods — is not this then precisely the same thing as to say, the execution of the first lien shall be first satisfied, else why execute that first, that first came to hand ? The second is, that the Sheriff has no election « — this is tantamount to saying, that the Sheriff has no power by acting or omitting to act, to give preference to which he pleases. I would further remark upon the conclusion, but indeed I do it with great diffidence, as it is a conclusion of Lord Holt’s — in consequence the Sheriff makes himself liable, &c. It seems to be repugnant to the two former branches ; for if the power of the Sheriff extends not so far as to sell under which he pleases first, but he ought to sell under the execution of the prior lien, can his doing that which he ought not to do, validate the transaction, and give a title to the purchaser who knows *95of the prior lien, and consequently of the wrong doing of the Sheriff.? And this conclusion, in fact, is in opposition to many authorities — the statute of frauds in England altered the common law which gave a lien .from the teste — that act gives it only from the delivery of the writ to the Sheriff. It is laid down in 2 E.C- Jib & in L. Raij. 252. that this act was made to assist a purchaser in market overt. It was thought hard, that a bona fide purchaser in market overt, should be liable to a seizure of the goods, only because there was an unknown execution, of a teste prior to the purchase ; therefore the act makes the binding the goods to relate to the time of the delivery of the writ, not to the time of the teste of the writ, as at the common law ; as to all other persons the common law remains ; that is to say, as between creditor and debtor, and as between creditor and creditor, theJL fa. binds from the teste of the writ; and in Term Rqu 731, 732, Jlshurst, Justice, says, but the Legislature saw the inconvenience and hardship which would fail upon innocent purchasers, if the vendee under the second writ, were liable to he dispossessed of the goods which he had bona fide bought; and therefore they guard against it by the statute of frauds: this, says he, I understand was the sole object of the act. This is a plain declaration, that if the statute of frauds had not been passed, the vendee under the second fi.fia. by the rule of the common law, might have been dispossessed by the vendee under the first ; this is conformable with the two sentences I have adverted to in the case of Smallcomb and Buckingham, as reported by Salkcld, though in direct opposition to the conclusion of that case. Justice Jlshurst further says, the act of frauds was only intended to protect the possession of purchasers under an execution — how was this effected ?— Not by saying that a vendee under an execution of a subsequent lien, should hold against the vendee under an execution of a prior lien ; but by removing the lien itself, to the time of delivery of the writ to the Sheriff, an act of some notoriety, that might serve to give notice to purchasers, who might search the Sheriff’s office before they purchased; but as well since, that act as before. in England, a vendee under an execution of a subsequent lien, must give way to a vendee under an execution of a prior lien, even in the case of personal chattels. For proof of this position, I rely upon the cases last cited; all of which prove, that purchasers in market overt, and *96under executions of the common Saw, were liable to be evicted by subsequent purchasers, under executions of a prior teste; and that the Parliament relieved them of this inconvenience in part, by saying the goods of a debt- or should not be bound, but from the delivery of the writ; the consequence of which will be, that there will be fewer persons who purchase in the face of an execution of a prior lien since that act, than before; because the means of obtaining knowledge of this priority, is rendered more easy by the act, than it was by the common law : and let it be further remarked, upon the case of Smallcomb and Buckingham, that it was determined with much hesitation, and seeming uncertainty — in Salkeld it is-subjoined, that the bearer of the f.fa. said to the Sheriff, ho was not in haste, so took out no warrant, nor left any fee; and this inclined the opinion of the court, more strongly against him. This leaves it in doubt upon what principle the court decided,.whether upon what they took to be the rule of law, independent of the fraud, or whether upon the circumstances of its being an attempt, on the part of the Plaintiff to protect the goods against the second execution ; or whether they decided upon both these considcra-tions jointly. I take the truth to be, the court proceeded upon the principle of the Plaintiff’s attempting to cover the goods by means of his execution, and so prevent the. other creditor from having any satisfaction at all, even out of the goods which would have remained unexhausted by his execution. This is a circumstance that undoubtedly ought, and by all the authorities would have postponed him. Í infer this to have been the ground of the decision, not only because it is so intimated by Salkeld, but also because in a report of the same case, 5 Mo, 377. Holt is represented to say, it is fit the law should be settled— here was an honest sale, you put in the writ, and let it lie longer; then comes the other and brings the writ the same day, yet saith the party to tiie Sheriff, you may let it lie, it requires - no haste, &c. This report plainly indicates the opinion of the court to have been founded in the neglect or fraud of the Plaintiff in the first execution. This case, therefore, can have but little, if any, weight as an authority in one, where the plaintiff in the execution of the first lien, has not been guilty of any fraud or neglect; and supposing theJi.fa. against lands, is now upon seme bum rs, in a i' .cs pacts, as the f.fa. against goods and enaltéis; yet it does not prove that the vendee *97under the execution issued upon (he second judgment, has preference to tiie vendee under tiie first. But the com" mon law as established by (he other cases, that the ven-dee under the execution of the first, will have tiie preference. Vide Comb. 133. 4 Term Sep. 412, where this point is established by tiie authority of Holt himself, and the opinion vindicated by the Judges of the King’s Bench. This supposition however that the f. fa. against lands, is in all respects like theJi. fa. against personals, though we have assumed it in argument for the purpose of shewing that tiie Defendant upon the strongest ground he can take roust give way to the Plaintiff — is not by any moans tenable, nor founded on any principle of law. Lands are still bound by the judgment as before tiie passing the act of Geo. II. and in the same manner, whether they be proceeded against by elegit, or ji. fa. under the act of Geo. II. Tiie 1 Sth Edwd. 1 c. 18. that gave the elegit„ because it was enacted for tiie benefit of creditors, and was a remedial act, was construed by way of advancing the remedy and furthering the security of creditors, so that tiie elegit subjected lands front the time of the judgment rendered ; and surety a subsequent act, intending to benefit creditors in a still greater degree, ought to be construed by such rules as will promote, extend and enlarge tiie advantages of creditors — 4o construe it so as to take from a creditor any advantage be had before, unless there, he express words for that purpose in tiie act itself, would offer an open violence to the designs ami views of tiie Legislature, to the spirit of the act itscifi and to the deductions of common sense j which, without any artificial rules of construction, would always suggest the propriety of promoting, rather than of repressing the intention of the iaw-giver, where a general intention was manifest. These, observations apply directly to the 5th Geo. II c. 7. which by its title is expressed to be, and evidently was designed to give, more ample security to creditors for their debts, than they possessed under tlia act of 13th Edwd. I. Our act of 1777 was made with the same view, and is bottomed on tiie same principles as tiie act of Geo. II. They are botii in pari materia, and to the same effect and purpose $ and as we apprehend, are subject to the same rules ofconstructiou : andas there are no express words in any of these acts,signifying any intent of the. Legislature to narrow the security of a creditor in any,instance, or to restrict the lien he had before *98by ¡lis judgment, to the time of issuing the execution, it would be absurd, ami contradictory to all rules of construction, to say, that either of them should have any such operation, merely because by them si fi.fa. against land may be used, as well as the elegit, or say, instead-of it. It is not the sound of a word that can make such an alteration of the law. In a part so material, such an alteration can only be effected by the express words of an act of Parliament, or by a sound interpretation, collecting the intents of the Legislature in things not expressed, from what (hey have expressed on things similar, and which are governable by the same reasons. Constructive alterations of the law, in its material parts, are not 1o.be admitted but where some valuable purpose is to bo effected, of mote importance in the scale of justice or policy than the rule to be altered — but what valuable purpose can it answer to change the law in the manner they contend for ? Is there any just reason, why the creditor now, should not have as much security for his deb), as before the act of Geo. II. vet if the lands are to he bound from the teste of the execution, the issuing of which may be delayed by various means, by accidents, as well as contrivances of the Defendant, the creditor may bo defeated of his remedy entirely ? Would it not have been better for the creditor then, that the old law' should (save remained, whereby his judgment would make bins sura of !iis debt, as against the lands of the debtor, than to be subject to the act of Geo. II to run the risk of the total loss of it? If tlieir’s is the proper construction, has not the act of Geo. II. made professedly for the benefit of the creditor, by receiving such a construction. most clearly done him an injury ? If tiiv Ji.fa. against lands under tills act, does not bind as from the time of (he judgment, as the elegit did, but only from the teste, may not the Defendant, after judgment, in every instance, procure an injunction, writ of error, certiorari, or (he like, and cause (lie teste of the execution, when permitted to issue, to he subsequent to a sale made by iiimself, or at the instance of another creditor in the mean time ? Is not the security he had before by means of his judgment entirely done away, and all this by a construction of the act of Geo. II- which goes upon the notion, that he was not well enough provided for before, and proposes to ameliorate his situation ? May not the Defendant suspend the execution by some of the means be*, fore mentioned, or contract debts afterwards, and by a *99confession of judgment prefer this ex post facto creditor, to the creditor by judgment should such a construction prevail? From this view of things, Í cannot but he firmly persuaded, that it is diametrically opposite to the spirit and meaning of the act of Geo. II. and of our act of 1777, to say, they have operated a change so detrimental to the creditor, as that lands sho'ukl he bound, not from judgment rendered, but from the time of the teste of tlie execution only.
Í cannot but believe that lands are yet liable, as they were before the passing these nets, from the time of the judgment. This is the conclusion I infer from considering the caso as detached from any express provisions in the act, and upon the supposition thal there are none such ; but it seems to me the words of the act of Geo. II. are. clear to shew, that lands are liable as from the- time of the judgment. Speaking of the manner in which lands shall be liable, it says, Kshall be liable as assets for the satisfaction thereof, in like manner as real estates are by the law of England liable to the satisfaction of debts, due by bond or other specialty •” it then proceeds to direct that the lands may be sold — These words produce this question, How arc lands liable in England to the satisfaction of debts due by bond or other specialty ? The indisputable answer is, they arp liable in England, and by the law of England, from the time of the judgment rendered against the obligor himself; and from the time of the suit commenced against the heir, when in his hands by descent : and in either case are hound to that creditor who first obtains his lien upon them, in prefer-: ence to, and to (he exclusion of, every other creditor whatsoever, until his debt.be satisfied — are they not then by the express words of the act, liable itere in the same manner? These words after ascertaining the extent of the liability of lands, have continued that, liability, in terms as explicit as the language can furnish, as it was before 5 and hath declared, that though they are to be sold by aJi.fa. yet they are to be liable as in England, at the-time of passing this act, in the same manner as if the process had never been changed. As far as I can learn, theopinion of the lawyers of this country have always been, that lands are liable from the time of the judgment, as well between creditor and-creditor, as between creditor and debtor : and there is an act of our Legislature, lately passed, which shews that the fi. fa. *100introduced by this statute for tbe sale of lands, does not bind like the chattel Ji. fa. from the teste only ; for if the Ji. fa. introduced by this act took upon itself the properties of the chattel Ji. fa. it does so throughout and in every instance, not in some only ; and of course if there can be an instance shewn, where it binds as the elegit did, the inference will be, that it binds in that manner and to that degree, because the act of Geo. II. lias not altered the liability of the land, or the lien of the judgment from what it was — now can any such instance be shewn ? It is well known, and will not be disputed, that at the time the act of Geo. was passed in England, if a judgment was obtained against an heir for the debt of his ancestor, the land he had at tiie time of the original writ purchased, was liable: that is to say, the lands were hound from the issuing of the original writ | and when the elegid went against the heir, the Sheriff might seize the lands the heir had at the time of issuing (lie original writ. Wood*s Inst. 650, and many other books. But in England as well as in this country, if the heir aliened before the action brought, there was no remedy — now, by our act of 1789, ch. 89 sec. 3. if the heir aliens before action brought, he shall be liable for the value; and says nothing at all of his alienation after the action brought. Suppose then the heir aliens after the action brought; if tlicJLjfa. binds from the teste of . the writ only, the land cannot be affected by it; and this absurdly will follow, that he who aliens before action, and without knowledge perhaps of an action intended, will be liable, when he who aliens after a writ taken out against him, and served upon him, will not be liable at all. What reason can be assigned for the Legislature’s omitting to make any provision in this clause for the case of alienation after action brought ? Clearly none other than this — that by the law already in being, the lands were liable to execution, that the heir had on the day of the writ purchased ; and therefore there was no necessity to say any thing about the case of alienation after action brought. But if the fi. fa. against lands binds only from the teste of the writ, lands aliened after action, and even after judgment are not liable.— This I think is one instance to prove, that the Ji. fa. against lands, has a relation to a time prior to the teste of the writ. I will now cite another — it is by the same statute which introduces the elegit, and by the construction *101upon it, that lands are bound from the time of tiie íiowledgcmentof a recognizance inoourt — “Whence a debt shall be recovered or acknowledged in the King’s court, or damages adjudged, it shall be in the election,” &c. Ifthejft. /«.issues upon a forfeited recognisance, and the lands have been aliened after the recognition and before the issuing th?fi.fa. the lands aliened are liable — it is so generally understood $ were it not so, the recognizances we take, daily for the appearance of persons indicted, would be of little effect. The process upon them is a sci. fa.- — no bail is given — the parties bound may sell at any time before the/L fa. issued, and depart — is not this an evil of great magnitude ? Shall we introduce such an one by construction ? At! persons arc dischargeable from prison upon recognizance given with sureties, unless for capital offences. May not the greatest offenders escape the stroke of public justice, which their demerits may have subjected them to, if the construction contended for takes place — if thefi. fa. against lands, like that against the personal estate, binds only from the teste?— I think this is another instance whereitwill be acknowledged, tiie-fi.fa. against lands affects them, and attaches upon them as from a time prior to the teste : and if it does so in these instances why not in all.? If the law in these instances remains tiie same as before the'act of Geo. II. and notwithstanding the writ of execution is a fi.fa. why does it not remain the same in the case of a judgment recovered for debt or damages in common cases ? How comes it that the act of Geo. II. operates partially, changing the construction of l he act of 13 Edwd. I. as to some cases, and not as to others. When before the act of Geo. II- the words of 13 Edwd. I extended to all these cases alike ? Do not these considerations warrant us in -saying, that thefi. fa. against lands, introduced by the act of Geo. II. has’ relation to a time prior to its teste ? Do they not prove the fi.fa. against lands, and the fi.fa. against personals to be esse»,-tially different in their nature and effects ? I shall take the liberty therefore, until better informed, to believe that lands in this country are liable upon a fi.fa. against lands, in the same manner as they were liable fay the law of England before the passing the act o i' Geo. II naimely, from the time of the judgment rendered : and that the judgment creditor here hath the same advantage, as lie had by the law of England, when that act was passed that is to say, to have satisfaction out of the lands for his *102debt preferably fo any other creditor who has a posteri- or judgment: and that ho cannot be deprived.of this benefit by the executing a writ of execution upon such subsequent judgment. But let it be admitted that tliejfi. fa. against lands hath the same operation aa the Ji. fa. against personals; yet still the Defendant in the. present case, purchased, knowingofthe prior lien of the Plaintiff’s claim upon the land ; and weighing his case in the scale of reason and impartiality, it comes plainly to this — that he who hath plunged himself into this dilemma, that either lie or another'must suffer, when by forbearing to act, such dilemma would have been avoided without the sacrifice of any privilege, ought rather to take the consequence of his own imprudence, than to throw a loss upon one who in every respect hath been entirely innocent, and who at this moment is exposed to the danger of suffering, by the perverseness of the Defendant, who had full warning that, what he was about to do, would produce the consequences that have followed.
jDavie, for the Defendant
The Defendant has set up f.wo distinct titles to the premises claimed by the Plaintiff, either of which ought to avail him as a defence in tins case.
The 1st, by the purchase and conveyance from James Massey, the 22d of June, 1784, who had purchased the land from William Massey, 2d of July, 1782, as appears by a deed of bargain and sale, executed of that date_ The second title under the purchase at the sale made by tire Sheriff on Deroany’s execution, 22d September, 1784 ' —and as a number of objections have been made to the second in opening the cause, I will proceed to examine that first-
Devany’s suit was an action of debt, and the writ became returnable to the June sessions, 1783, when a judgment by default was taken, and ari enquiry ordered as to the value : at the same sessions the administrators of Bell obtained their judgment, and the Counsel for the Plaintiff has concluded, that Beoany’s judgment was barely interlocutory; that this being a final judgment, became a preferable Hen upon the lands, and that they were exclusively bound for its satisfaction. This conclusion, however, is questionable by the act of Assembly, usually called the Court Law, sec. 34. “ The Defendant shall appear and plead or demur within the first three ¡lays of the term to which the writ shall he returnable-, *103otherwise the Plaintiff may have judgment by which in actions of debt shall he final, unless when damages are suggested on- the roll.” This case, being an action of debt for 5,000lb. of tobacco, is not within the exception stated in the act — no damages are in such cases ever “suggested on the roll,” and the judgment is therefore final, according to the law and practice of tiie court.
These judgments are called “final judgments” also itt the á4th section, which authorises an enquiry as to the value the same term. The same doctrine is held in 3d Black. 397, where it is expressly laid down, that when a judgment is taken by default, by confession, or cognovit actionem, or by non sum infiormatus, which is a species ofjudgment by default in actions, where the specific thing sued for is recovered, as in actions- of debt, the judgment is absolutely complete. He admitted that where the action sounds in damages, or damages in an action of debt are suggested on the roll, the judgment cannot be deemed final until a writ of enquiry is executed; and that the lien, if any, then commences on the judgment being given thereon ; but that the judgment in JDeroany’s case was absolute and final: and ¡Hands are bound from the time that judgment is signed as awarded, then the lands of Massey were bound by the judgment of Bevany, as well as by the judgment of Bell’s administrators.-— He also said that if Massey had died between the session of June and September, the action of Bevany would not have abated, owing to the nature and effect of the judgment: that this point'liad often been determined, and upon the principle that such a judgment was in its nature. final ami conclusive as to the Plaintiff’s demand.
As to the doctrine that lands arc hound from the time of the judgment — he said, he admitted in the fullest manner, that the Saw had been so settled in England ever since the statute of the 13th Ednvd. I. in all cases where-the party took out an elegit, the only execution which in that country affected the lands of the debtor.: but whether the lands are also bound in this country, when satisfaction^ is levied by a fi.fia. deserves some consideration —and we contend they are not. *
1st. He observed that by the common law, the goods and chattels of the debtor, and the annual profits of his land, were alone liable to execution, a few cases excepted — as a judgment at the suit of the King or an action' *104(>f debt against an heir; & the lands were not liable, genne-rally speaking, until the statute of 13th Edw. I. gave the writ, since called an elegit. The doctrine oflands being bound from the time of the judgment, must then arise either from the letter and direct operation of this statute, oy the construction which the English Judges have thought proper to put on it. The statute is very short, in these words — “ That when a debt shall be recovered or acknowledged in the King’s court, or damages adjudged, it shall he hereafter in the election of him who sues for such debt or damages, to sue out a writ, that the Sheriff shall cause to be made of the lands and chattels of the debtor,’ or that the Sheriff shall deliver to him all the chattels of the debtor, excepting oxen and beasts of the plough, and the half of his land, until the debt shall he levied by a reasonable appraisement and extent,” &c.— In this laconic statute, there is not one word enacting that the lands shall he hound from the time of the judg - ment rendered ; nor in that part of the act directory to the Sheriff, is (luece any expression used from which such a doctrine can be reasonably inferred. It is therefore apparent, that the Judges in England, added this construction to advance the remedy given by the writ called an elegit. Neither the statute, nor this extraordinary Construction of the Judges, altered the nature or operation of the judgment — the judgment remained precisely the same as before the statute was passed, but the statute ga\e a new execution or remedy: and the choice of this statute writ gave the Plaintiff a lien upon the Sands from the time of tne judgment rendered, according to the construction of the courts. — Thus, it was not the rendering of the judgment that bound the lands, but the suing out: this new writ, and making the entry — quod elegit sibi executiononem fieri omnibus catallis cl medietate terree; and if the party had made his election to sue out afi. fa. or a capias ad satisfaciendum, the lands would have been, in ail respects, precisely situated as if the statute of the 13th Edw. I. had never been passed — saying, it was therefore clear, that it was not the rendering the judgment, but election of the remedy given by this particular statute, which created the lien upon the lands. The law-being thus correctly stated as it stands in England under tiie 13th Edw. L it was now necessary to examine the history anü doctrine of executions in this country — The. nomino» law chattel writ oifi.fa. was authorised to is*105sue against lands ami tenements, by the statute of 5th G-eo.lI. enacting expressly, that lands and other real estate should be subject to the same process, and sold in the same manner as personal estates, in the year 1777s an act of Assembly was passed, enacting that all process which issued heretofore against goods and chattels, lands and tenements, or against goods and chattels only, should thereafter issue against goods and chattels, lands and tenements ; only directing that the Sheriff should levy on the goods and chattels in the first instance, and if there was not sufficient to satisfy the execution, it was then his duty to levy also upon the lauds : so that ever since the year 1732, the writ oí' Ji. fa. has issued in Norih-Carolina against lands and tenements as well as goods and chattels — the, act of Geo. 21. declaring they should be subject to the same proceedings and process* and be sold in the same manner as personal estate. .It is therefore only necessary to ascertain in what manner property is bound by awarding a Ji fa. This writ stands upon the same fouling in this country, that it did in England before the 29’h Cha. II. therefore the property of the debtor is bound from the teste of the writ. 2 Bac. 352. Salk. 322. 8 Co. 71. I' is unnecessary to multiply authorities on this point, if a Plaintiff should sue out a capias ad satisf. the goods of the debtor are not in any manner bound \ but if a fi.fa. is awarded, then the goods are bound from the teste of that writ, although it should not be delivered to the Sheriff for months after-wards — so, in like manner in England, if the Plaintiff chose an elegit, the lauds were bound from the time the judgment was rendered — not by the judgment, but from the time the judgment was entered. The /b/u.has a retrospective operation to the time of the teste of the writ, the elegit to the time of rendering the judgment. The law then is clear theji. fa. can only operate upon the ■property of the debtor from the tente of the writ. There is no act of Assembly which alters this plain and positive law, nor any determination even of the most loose authority, which supports the doctrine advanced by the Counsel for the Plaintiff. Thousands of authorities may be easily cited, supporting the construction of the statute of Edw. I. as it respects the elegit, but not one can be produced, even in this country which transfers the quality of retrospective operation of the elegit to the writ of f. fa. The fi.fa. issued in Bevanifs judgment from *106sessions, 1784, and was levied upon the premises jn question $ at the sale the Defendant became the purchaser of the right of William Massey, and the Sheriff conveyed accordingly. The Ji.fa. under wiiich the lessor of the Plaintiff purchased, bears teste the 18th May,1789 — ■ if therefore it is the prior teste that gives the execution a preferable lien upon the property,thelands inquestion could not be affected by the execution issued upon BelVs judgment. There, is also another objection to the Plaintiff’s tide as derived under this sale — If the execution issued on the judgment obtained by Bell's administrators, had actually borne teste before that of Bevany,khad even been delivered first, to the Sheriff ; yet, if the Sheriff executed Bevany's writ first, the second levying and sale would be void ; and the vendee under the first, or Bevany’s sale, would keep the land. 2 Bac. 356. Garth. 419, 420. 1 Salk. 320. The. reasons upon which this law is grounded, arc evident. The elegit never altered the property, but the ji.fa. transfers the whole property to the vendee — and "no man would he safe under a Sheriff’s sale, if a contrary doctrine should prevail; and policy and jusfice are concerned in quieting the purchaser under a sale made by execution.
it is also to he observed, that in England, when lands are delivered by elegit, upon the reversal of the judgment by a writ of error, the lands themselves are restored to the Defendant: but this can never be the case when a sale is made by virtue of a Ji.fa. then the money only can be restored- — and such is the judgment of the court. The execution was valid at the time, and the property is completely changed and transferred. There is nothing in the origin, operation, or consequences of the elegit, that can be assimilated in any manner to the old common law writ of Ji.fa. 2 Bac. 3 TO. 8 Co. f9, 143. Cro. ifac. 246. Cro. Eli%. 278.
He then concluded that the title of the Defendant was good, made under the sale on Bevany’s execution, in both points, whether it depended on ttie teste of the writ, or the priority of levying and sale.
He then proceeded to state, what he called, the first title of the Defendant, derived under the purchase from Jamas Massey — observing that as to the points, that voluntary dr fraudulent conveyances are void as to creditors, and that executions may be postponed by fraud— these were general positions which no man would ques*107tion — and made some lengthy remarks on the testimony brought forward on the other side to impeach the con-veyanee from William to James Massey, on rife ground of fraud, and concluded for the Defendant,
In reply it was said — The judgment by default does not bind the land — because in reality these interlocutory awards are not judgments, but something done by the court towards putting the cause in a condition for judgment. This appears by the 11 Rep. 40, a. where these proceedings are said to be but awards of the court and not definitive ; and such proceedings cannot be pleaded by an executor as judgments against his testator. 1 Salk. 42, 399. 2 Neis. M- 1053. And at common law, by the death of the Defendant the whole suit would have a-bafed — unless there had been a final judgment, the suit in such circumstances may be discontinued, the Plaintiff may be nonsuited, and no writ of error will lie upon such award of the court; because judgment non sit redditum, which the writ of error requires. 11 Rep 38. b. 40.— The words of the act introducing the elegit, are si damna adjudieata, sit in elections, &c. Now, the entry of a judgment by default is in this manner — “ Because it appears to the court that the Plaintiff ought to recover, therefore,” &c. it cannot be said upon this entry that damages are recovered. The entry of the final judgment is, that the Plaintiff do recover, &c. and then, and not before, damages are adjudged : and if is in the election of the Plaintiff to take out his writ of elegit, and charge the lands, and then, and not before, are they bound.— Mt. P. K.'B. 380. 3 El. Com. 398. shew the manner of entering these defaults — The wrrit of elegit, speaking of the lands to be seized and extended, describes the lands he had die quo redditum fait judicium ; and Morg. PI. 341, 345. and 11 Rep. 40, 38, b explains redditum sit, to be intended of a final judgment. If a suit in the circumstances of Vevanifs in June term, 1783, could not have abated by death, what would have been the situation of the Plaintiff — lie could not proceed by sci. fa. to make new parties — this was a proceeding introduced by a late statute. He would at the common law then be so circumstanced, that lie could neither proceed and get judgment for want of a Defendant, nor be. dismissed the court by an abatement of the suit, and lie must have lost the benefit of his tobacco bond forever. It was not from the mere circumstance of the act’s introducing the elegif *108that the lands were bound — why should this op any othéi* circumstance, independent of reason and propriety, af-. feet any tiling 2 The land was construed to he affected by the judgment, the better to answer the spirit of the act, which was made for the benefit of creditors — if was a construction made to conform to the will of the Legislature, in a thing they had omitted to express— which will, the Judges discovered from the occasion and the reason of introducing the act, and from the provisions of it in cases expressed by the Legislature. It is true tiie Legislature, by the act of Geo. II- did mean to put lands in the situation of personal estate, with respect to execution ; but it was in one particular only, and in no other — to-wit: to make them transferable forever to a purchaser, by the sale and deed of the Sheriff. It did not intend to alter the legal properties of land, nor the measure of their liability to judgments. The lien upon lands by judgment remains the same as before. There is no ground for saying the Parliament intended a benefit both to rredifor arid debtor. Does the act intimate that the debtor laboured under any inconvenience ? Does it not solely respect the better security of creditors ?— If can easily be shewn, that ihef.Ja. against lands hath many of the qualities of the elegit — it affects lands in the hands of the heir from the time of the. commencement of the suit against him — this is proven by the act of 1780 —so does the elegit — and so does not any chattel writ of f.fa. — when a recognizance is given to the state ami forfeited, the f.fa. issues, and it affects the lands the recognizer had the day of the recognition made, according to the words of it: here, flioji. fa. like the elegit, relates to a time long prior to its teste, which a chattel writ off .fa. ever did. And there has been, as 1 air. informed, a derision in the court of Morgan, that lands sold under a f.fa. shall be restored upon the reversal of a judgment — I think it was in the case of Whitbread — If this be correect, then if is another instance where thejfi. fa. against lands has the quality of an elegit. It is true, many authorities can be shewn to prove, that goods are only bound from the teste of a writ ot‘f.fa. but. this argument proves nothing. Can it be shew n, that at any time since the passing of the act of Geo. II. it has even been held that thejfi./c. against lands did riot bind from the time of the judgment, but from the teste only ? It appears to me from every point of view in which I cat? *109píarp this case, that land is liable to execution as from the time of the judgment rendered* as» it was both here and in England at the time of passing the act of Geó. IL and that that act bath made no alteration but this — that the lands are to be sold instead of being extended as b*-1 fore, and consequently that the Plaintiff in the case now before us, is entitled to recover.
Judge Ashe had retired from the bench before the arguments were closed.
Judge Macay — This is a dispute ofgreat consequence, and it is proper it should he well settled, and I very much regret the necessity I find myself under of deciding alone — however, Judge ¡Ashe who hath just left the be>*< h, conferred with me before he went away, and accords in the opinion I am about to deliver. He then stated the case, and proceeded thus : — As to the deed from Old Massey to James, which is argued to be fraudulent, and mere-fore void — Fraud will certainly vitiate any transaction into which it enters — but it is a rule of law, that fraud must be proven — it. will not be sufficient to suggest it only. For my part, I cannot perceive any fraud in that transaction, but the jury have beard the evidence, and will draw their own conclusions. With respect to what is argued by the Counsel for the Defendant, that the judgment by default upon the tobacco bond, in June term, 1783, binds equally with the final judgment of Bell’s administrators- — the taking a judgment for want of a defence on such a bond, is not a final judgment. — it is an interlocutory proceeding only — before any execution cats issue, a jury must be called in t<> assess the value, and then there must be another judgment entered to complete it. We are also agteed that a judgment binds the lands from the time it is pronounced, but in this wi-e only — it binders the debtor from disposing of the, land himself; but if a jfi./a. issues upon a subsequent judgment, and comes to the hand of the Sheriff, and he sell- the lands, theAitle of the vendee under such execution cannot ever afterwards be defeated — it is valid to every purpose.— Were the law not so, it would be the most dangerous thing in the world to purchase lands at an execution sale. D >i maut judgments might be revived a long time after-wards, & the innocent vendee evicted, without the possibtli ■ ty of ever regaining the purchase, money — who can he apply to for it ? It is true there was such a case decided a*. Morganton as that cited at the bar •- buttho’-e the land wav. *110purchaser! by the Plaintiff himself, as well as I can remember the case. So there was not the danger to purchasers involved in that instance, that I have mentioned before ; as between creditor and creditor it is not the first judgment, but the first execution that gives the preference.
Bo the Defendant had a verdict and judgment.
In tiiis case the following authorities were cited.— Upon the point of the land being bound by judgment:— Cro. Jae. 451, 452 Cro. Car. 119. 3 W. 399. 8 Rep. 171. b. 6 Rep. 79. 7 Rep. 38, 39 11 Rep. 93. 10 Hep. 38. 1 Regg. 94,106. Cro. Jao. 512.
Upon that of rh«' first lien entitled to first satisfaction : 1 Mo. 253. 3 P. Wil. 399, 330. 2 Ba. M. 364, 34, 26. Cro. El. 482- 2 Ba.Ab.433. Cn< El. 734, 822. 4 Rep. 60. 5 Rep. 28. b. 6 Rep■ 45. 6. 2 Eq. Ca. Ab, 256. sec. 3. Salk. 80. 1 Off Exe. 138. Bull. 104, 105. Garth. 255. 2 T. Rep. 731, 732. 2 Eq. Ca. M. creditor and debtor. 3 P. Wil. 400.
Upon the point of fraud, the son being the- purchaser : 2 Ba. Ah 604, 608. 3 Hep. 81. Cow. 711. Cro. El. 810. Cow. 434. 1 Doug. 87.
Injunction dissolved leaves tiie parties in statu quot 2 Bur. 660. Cunn. Verb. Judgment. — Theedham v. Jack* son. 1 Burnes 157. 1 Doug. 75.
Executions may be postponed by fraud : L. Ray 355. 1072, 1075. Stra. 226, 461,515. 3 P. Wil. 22. 2 Ba.Ab. 596. 1 Wits. Sep. 44. 5 Mo. 373. L. Ray. 735. 2 Ba, Ab. 232. Cro. Jac. 246,