Lash v. Gibson, 5 N.C. 266, 1 Mur. 266 (1809)

July 1809 · Supreme Court of North Carolina

5 N.C. 266, 1 Mur. 266

Lash and others v. Gibson.

[- From Stokes. J

A. and B. having- obtained judgments before a justice of the peace, sued out executions, which were levied upon the lands of the Defendant'; and the executions so levied were returned into the County Court for orders of sale. The executions were levied on different days, but the orders of sale were made at the same term of the Court, and writs of ’venditioni exponas were issued thereon. At the same term, C. obtained a judgment in Court against the Defendant, and sued out a fieri facias, which was levied upon the same lands j and the Sheriff sold the lands under all these executions, and paid the money into Court; and it being insufficient to discharge all the executions, application was made to ike Court for an order of distribution. Tile execution from the^justice, which was first levied, is to be first satisfied : and the money is to be distributed according to the priority of the levy of the executions.

Lash and others recovered judgments against John Moore, before a justice of the peace, and sued out their executions, which were levied on a tract of land belonging to Moore, no personal property being found. The executions so levied, were returned to December term, 1807', of Stokes County Court. The levies were made at different times, one on the 50th November, another on the 2d December, 1807", &c.

Gibson sued out a writ against Moore, on the 29th August, 1807, returnable to September term following, when judgment by default was taken, and at December term following, final judgment was obtained; and at the same term, orders of sale were granted upon eacli of the aforesaid levies.

Writs of venditioni exponas were issued upon each of the orders of sale, commanding the Sheriff of Stokes to expose to sale, the land levied upon by the executions aforesaid, issued by a-justice of the peace. A writ of fien facias was issued upon* Gibson’s judgment, which was levied by the Sheriff upon the land aforesaid, before the writs of venditioni exponas came to his hands. The sale of the land was advertised and made, both under the writ off fien facias and the write of venditioni exponas. The money- arising from the sale was paid into the office, and it being insufficient to discharge all the executions, a question arose among the creditors, how the money was to be distributed ? Whether each was to receive a rateable proportion, or whether the executions were to bo satisfied according to the priority of levy? And, lastly, whether Gibson, being a judgment creditor in Court, and having obtained judgment by default at September term, was not entitled to a preference ?

I/Owkie, Judge,

delivered the opinion of the Court:

We are not surprised that a case should arise circumstanced like the present; but it¡ is not difficult to discover the principles by which it ought to be governed. In every country enjoying a jurisprudence like ours, collisions; of interest like the present will often happen. It is an invariable rule, founded upon the.principles of morality, that every, man ought to enjoy all the fruits of an honest and: laudable vigilance : upon this principle the maxim is bottomed, that the Law favours the vigilant and not the supine. We are therefore of opinion, that the money collected by the Sheriff, on the executions returned in this case, ought to be-distributed according to the priority of the levy of the executions. And even admitting that the judgment of Gibson in the County Court, which is a Court of record, bound the land, the orders of sale are equally judgments of the same Court; and although Gibson may have obtained his judgment earlier in the term than the orders of sale were granted, this will not vary the case, for the whole term is but one day in contemplation of Law. Each execution has a lien upon the land from the time of the levy, and the orders sa{e jia(j re]ation back to the times the levies were actually made; for the Sheriff was not bound, in order to make a sale, to levy the writs of venditicni exponas. By these writs, he was to expose to sale the land already levied on, and thus complete the act commenced by the levy. The judgment of the Court therefore is, that the executions first levied be first satisfied.