Doe on demise of M'Lean v. Upchurch, 6 N.C. 353, 2 Mur. 353 (1818)

July 1818 · Supreme Court of North Carolina

6 N.C. 353, 2 Mur. 353

Doe on demise of M’Lean & others v. Upchurch.

From Chatham.

When a Defendant in an execution sells Ins lands after the execution is in the Sheriff’s hands, such sale is void and the purchaser under the execution has the better title: and it seems the execution bound from its teste, it certainly did from its delivery,

An alias fi. fa. though a different piece of paper, is considered the same as the first fi. fa. as to the lien created.

This was an action of ejectment and from the case agreed the following appeared to be the facts.

On the 2d of February 1804, Robert Harris was seised of a tract of land including within its boundaries the land in dispute, and conveyed the same to Joseph Brant-ley, jr. and John Crump. On the 5th of April 1805, Crump conveyed his moiety to Brantley.

At November term 1801, of Chatham County Court, Brantléy had confessed a judgment to Ambrose Ratnsay for ¿§160 2-6 with interest from 2d October 1801, till paid i “ execution to issue when called for.” No process issued on this judgment until November term 1805, when aji.fa. was sued out, after which executions regularly issued yvithin a year and a day up to February term 1807", when another execution isshed which was levied on the land in dispute, and under which, a sale of the land was made by the Sheriff to M’Lean one of the lessors of the Plaintiff.

On the 4th of February 1807, Brantley conveyed the land to the Defendant who took possession under liis deed,

Seaweix, Judge,

delivered the opinion of the Court:

At the time when the sale was made by Brantley to Upchurch viz: on the 4th of February 1807, there was in the Sheriff’s hands Ramsay’s execution, and the execution taken out from the term thereafter, though it is a different piece of paper, is still the same execution $ we do not therefore see upon what principle it can be contended that the lands were not bound, as the sale was made not only after the teste of the execution, but after the delivery thereof to the Sheriff.

If it be, that these lands were acquired by Brantley after the judgment was obtained, we think there is nothing in that? for we do not decide how far a judgment binds lands, but think this case the common one of a party having lands and selling them after an execution is in the hands of the Sheriff against them. There must be judgment for the Plaintiff.