Den on Demise of Poor v. Deaver, 23 N.C. 391, 1 Ired. 391 (1841)

June 1841 · Supreme Court of North Carolina

23 N.C. 391, 1 Ired. 391

DEN ON DEMISE OF ISAAC T. POOR vs. THOMAS S. DEAVER.

Where an execution on a judgment is returned satisfied, the judgment is extinguished; and another execution cannot he issued, as for instance for attendance dues for a witness omitted in the first execution, until the return on the first execution is set aside of corrected, or an order of the Court in nature of a further judgment is rendered.

The cases of the Governor v. Twilty, 1 Dev. 153, and Snead v. Rhodes. 2 Dev. & Bat. 386, cited and approved.

This was an action of ejectment tried at Spring Term, 1841, of Buncombe Superior Court of Law, before his Hon- or Judge Battle. The following is the case reported by the Judge:

Both parties claimed under one William Keith. The plaintiff’s lessor produced a record of the County Court} shewing a suit between one Craven Jinkins and the said William Keith, in which the latter was plaintiff, and upon tfre trial docket there appeared simply an entry of the jury’s being impannelled, and their finding a verdict for the defendant in that action. There was no entry of judgment against ff,e piaintiff for costs; and the counsel for the defendant in this case objected that there was not even such a memorandum for a judgment as would support the execution which was issued. The plaintiff’s lessor then produced an execution of fi.fa. in iavor of the said Jinkins, against the said Keith, purporting to have issued for the costs in the said suit, tested of the August Term of the County Court, 1833, and returnable to the following January Term. Upon this execution the Sheriff returned, “satisfaction, retain my fees, pay in office $8 90 cts.” He then produced another execution, which did not purport to be an alias, but which issued, as alleged, for the amount of a witness ticket, not filed when the former execution issued. This fi.fa. bore teste of January Term, 1834, and was endorsed by the Sheriff, “ Came to hand March 23d, 1834,” but no return appeared upon it. — ■ Upon this execution was another endorsement: “ Z. Candler, witness ticket, to the use of John Patton, $11 80 cents. This ticket was brought in since the issuing the former fi.fa. in this case; therefore, for this fi. fa. 35 cts. and fees of collection are to be retained out of this* ticket.” The plaintiff’s lessor then produced another fi. fa. tested of April Term, 1834, and returnable to the ensuing Term, not purporting to be an alias, upon which the land in question was sold, and bought by the plaintiff’s lessor. He also produced a fi.fa. from the Superior Court of Buncombe County, tested of March Term, 1834, and returnable to the ensuing Fall Term of the same, in favor of Reuben Keith v. William Keith, upon which the Sheriff returned “no goods.” The defendant claimed under a deed from the said William Keith to himself for the said land, dated the 26th of September, 1833, and his counsel contended that as the first fi. fa. produced by the plaintiff’s lessor was returned “satisfied,’’ and the others did not purport to be aliases, and were not in fact such, the defendant’s title was preferable to that of the plaintiff. The latter then offered to prove, that while the two last executions from the County Court were in the Sheriff’s hands, the de iendant promised to pay them, but afterwards refused. The Court held that the execution, under which the plaintiff’s lessor purchased the land in controversy, could not be connected with the one which issued from the August Term, 1833, so as to give his title a preference to that acquired by the defendant under his deed from William Keith, and that the parol testimony offered by the plaintiff’s lessor, was immaterial and inadmissible.

In submission to this opinion, the plaintiff’s lessor submitted to a judgment of non-suit, and appealed to the Supreme Court.

No Counsel appeared for either party in this Court.

Gaston, J.

The opinion, delivered by the presiding Judge on the trial, is perfectly correct. The only execution against the property of Keith, which was in existence at the time of the sale to the defendant, was returned satisfied. It is impossible, therefore, to hold that the sale was in fraud of this execution. As to the subsequent executions, which purported to issue for the attendance dues of a witness, omitted in the first execution, these neither were nor purported to be alias executions. They could not, therefore, if regular, be allowed to overreach a bona fide alienation made before their teste. But they were irregular and issued without authority. After the return of satisfaction upon the first execution, the judgment theretofore rendered was extinguished, and until that return was set aside or corrected as a further judgment, or order of the Court in nature of a further judgment was rendered, there was nothing of record to warrant further proceedings against the debtor or his property. Governor v. Twitty, 1 Dev. 153. Snead v. Rhodes, 2 Dev. and Battle, 386. The parol evidence offered by the plaintiff, and rejected by the Court, was manifestly immaterial as respected the issue to be tried. The promise of the present defendant to pay the amount claimed by these executions, if it imposed on him any obligation, did not impair his title’ to the land, which had been conveyed to him.

Pee. Curiam, Judgment affirmed.