Den on dem. Harbin v. Carson, 20 N.C. 388, 3 Dev. & Bat. 388 (1839)

Dec. 1839 · Supreme Court of North Carolina

20 N.C. 388, 3 Dev. & Bat. 388

DEN ON DEM. of CASWELL HARBIN et. al. vs. JOHN S. CARSON.

Dec. 1839

The levy of an attachment upon land creates such a lien upon it, that if there be a subsequent judgment of condemnation and a sale of the land under a writ of venditioni exponas, the title of the purchaser will supersede that of one claiming under a judgment and jfieri facias posterior to the date of the levy of the attachment, but prior to the judgment of condemnation and venditioni exponas.

This was an action of Ejectment, tried at Davie, on the last circuit, before his honor Judge Dick. Both parties claimed title under one Bennet Austin. The lessors of the plaintiff produced a judgment against the said Austin, entered up at August Term, 1836, of Rowan County Court, an execution thereon returnable to the ensuing term in November, and a deed from the coroner to themselves for the lands in controversy, which were sold under the said execution. The defendant shewed in evidence the proceedings in an original attachment issued by himself against the said Austin, on the 27th of April, 1836, levied on the lands in controversy the same day, and returned t6 May term, 1836, of Rowan County Court. He then shewed a regular final judgment entered up on said attachment at the ensuing November term of the said Court, a writ of venditioni exponas thereon, returnable to the ensuing term in February, under which the said lands were sold; and a deed to himself therefor from the sheriff.

The only question presented to the Court was, whether the title passed to the lessors, of the plaintiff, by virtue of then-purchase, under the execution issuing upon the judgment at August term, 1836; or whether the levy of the attachment upon the lands in April, 1836, created such a lien as, when consummated by a judgment of condemnation and a sale under a venditioni exponas issuing thereon, gave the defendant the better title. His Honor being of opinion in favour of the lessors of the plaintiff, the jury found a verdict for them, upon which they had judgment, and the defendant appealed.

No counsel appeared for either party in this Court.

Daniel, Judge.

The only question in the case submitted' for the decision of this Court is, whether the levy under the defendant’s attachment, in April, 1836, which was prior the date of the plaintiff’s execution, created such a lien on the land, as when condemned and sold under the writ of venditioni exponas, gave to the defendant the better title. We are of the opinion that it did. The case of Den on dem. of Amyett vs. Backhouse, 3 Murph. 63, establishes the proposition contended for on behalf of the defendant. We think that there must be a new trial.

Per Curiam. Judgment reversed.