Den on demise of Amyett v. Backhouse, 7 N.C. 63, 3 Mur. 63 (1819)

May 1819 · Supreme Court of North Carolina

7 N.C. 63, 3 Mur. 63

Den on demise of Darius Amyett v. Allen Backhouse.

From Craven.

A, being1 seised of lands, on the 1st day of December, 1811, sells the-same to B. bona fide, and for a valuable consideration, and agreed to execute a conveyance within ten days thereafter; and within that time he executed such conveyance. On the 2d day of December C. sued out an original attachment against A, which, on that day, was levied on tlie said lands and returned to Court. A default was entered against A, but there was no judgment of condemnation against the lands. Final judgment against A. being obtained, a fieri facias issued against his goodsand chattels, lands and tenements, which was levied on the said lands, and at the sale thereof made by the sheriff were bid of!' by C, who entered and took possession. B. is entitled to recover these lands, for the suing out of the fieri facias after final judgment is a waiver of the lien created by the levy of the attachment. To have the benefit of this lien, C. ought to have sued out a venditioni exponas.

Under the act of 1777, cli. 2, property attached is directed to remain in the custody of the sheriff until final judgment, and “ then be disposed “ of in the same manner as goods taken in execution on a writ of fieri “ facias; and if the judgment shall not be satisfied by the goods ■“ attached, the Plaintiff may have execution for the residue.” When goods taken in execution are to be disposed of, the proper mode is to sue out a venditioni exponas ,- and if the goods be not of the value of the debt, tile Plaintiff may have a venditioni exponas for those seized, and a fieri facias for the residue, in the same writ. But if the Plaintiff, instead of a venditioni exponas, sue out a general fieri facias, he waives the seizure under tire first execution, and destroys the lien which it created.

George Lane being seized of the land in question on the 1st day of December, A. D. 1811, sold the same to the lessor of the Plaintiff, for the consideration of 425 dollars. He gave a bond to make a title thereto within ten days j and on the tenth day of December aforesaid, Lane executed a conveyance pursuant to the bond. On the 2d day of December, A. D. 1811, the Defendant sued out an attachment against Lane, which, on the same day, was levied on the land aforesaid. The suit founded on this attachment, was returnable to December term of Craven County Court, which term commenced on the 9th day of the month. At that term a default was taken against Lane, and at March term, 1812, the default was executed, and a verdict rendered for the Plaintiff of 49J. 2s. Qd. No judgment of condemnation was entered. An execution was issued to the Sheriff of Craven, which recited generally that a judgment had been rendered for said sum, and commanded him, “ that of the goods and chattels, lands and tenements,” of the Defendant Lane, he cause the aforesaid sum to be made. This execution was levied by the Sheriff on the lands in question, and the lands were sold by the Sheriff and purchased by the Defendant for the sum of live dollars, in the name of his infant son, to whom the Sheriff executed a deed. This deed recites, generally, a judgment of March term, 1812, an execution tested of the same term, and a seisin in land on the day of such teste.

The Court charged the jury, that under these circumstances, the title of the Defendant’s son, under whom he held, was bad : but that the Plaintiff must recover by the strength of his own title, and that by reason of the lien created by the attachment, the Plaintiff had not a good title. The jury found a verdict for the Plaintiff; and a rule for a new trial being obtained, it was sent to this Court.

For the lessor of the Plaintiff, it was argued that it was' provided by the act of the second session of 1777, ch. 2, see. 25, “ that original attachments shall be returned to Court and be deemed the leading process ; and the same proceedings shall be had thereon as on judicial attachments.” The 23d section, in regard to judicial attachments, provides that “ the goods so attached, if not replevied or sold, shall remain in the custody of the sheriff until final judgment, and then he disposed of in the same 'manner as goods taken in execution on a writ of fieri facias ; and if the judg-menl shall not he satisfied hy the goods attached, the Plaintiff may have execution for the residue.”

When goods are taken on & fieri facias, and it be desired that they should be disposed of, the proper mode is to sue out a Venditioni exponas, commanding a sale of the goods so taken. If the goods so taken are not to the value of the whole debt, the Plaintiff may have a Venditioni exponas for those seized, and a fieri fiadas for the residue, in the same writ. ^* Such is precisely the form to be observed on attachments.

But if the Plaintiff, instead of a Venditoni exponas, sue out a general fieri fiadas, he waives the seisure under the first execution and destroys the lien on the property seized on, by it :^† and so it was expressly decided in this Court in the case of Scott’s Executors v. Hill, Sheriff of Franklin.:^‡;

Whatever lien therefore was created by the attachment, it being precisely that with the lien on goods taken in execution on a fieri facies, such lien was waived by the Plaintiff’s suing out a general fieri fiadas and purchasing under it.

In the second place, the sale to Amyett was antecedent to the attachment, and it is not the design of the attachment laws, to subject to such a process any property but what truly and equitably, as well as nominally and legally, belongs to the debtor.^§

Lastly, the verdict conforms to the justice of the case $ and the Court will not disturb it to keep in possession a man who clearly has no right.

For the Defendant, it was argued, that although no judgment of condemnation appeared of record, yet in this case enough appeared to induce the Court to presume that such a judgment bad been rendered. But it may not be material to tbe main question of lien, whether there were such a judgment formally rendered: for the levying of the attachment created a lien, and this lien is not waived by suing out the fieri fiadas. This execution commands the Sheriff to levy the debt out of the Defendant’s property, that is, such property as is subject to the debt; which is different in different executions. If it be an execution regularly continued from term to term, it authorizes a seizure of property conveyed by Defendant bona fide at any time since the teste of the first fieri fiadas, although prior to the teste of the execution under which it is seized ,• for as to that fi. fa. it is the Defendant’s property. So also as to a fraudulent conveyance. In the ■present case, the property being subjected to the payment of this debt, the purchaser is permitted to shew that his title relates back beyond the teste of the fi. fa. or the rendition of the judgment. The recital of the judgment in the fu ju. is sufficient to identify it ,* a more full recital could only do the same.

This is likened to the case of a fi. fia. where there has been a former levy, which, it is said, discharges that levy. A levy under a fii. fia. is a discharge of the debt, at least until the property is sold and its insufficiency ascertained, or the levy waived and the property actually restored to the Defendant. When the Plaintiff, therefore, sues out a fi. fia. after having caused a levy to be made, as that act could not be done without waiving the levy, and thereby discharging the lien, he is concluded from alleging that the levy continues, his act being inconsistent with it. Attaching property docs not satisfy the debt ,• it is to secure its payment when recovered ,• and the property cannot be sold and applied to its discharge without a fi. fia. or some other process. But a Sheriff may sell without a Vendilioni exponas : One seizure is to secure, the other to satisfy. The first requires the further aid of the Court to effectuate the object of seisure, which object being the raising of the money for the Plaintiff, the process which issues to effectuate it can only suspend during its operation, tbe lien created by tbe first seisure, on a presumption that the debt will be raised by this process. But the lien is restored when it appears that the debt was not so raised.

If there were no judgment of condemnation, it may possibly render the final judgment erroneous : but until reversed, it has all the elfects of the most regular judgment. A reversal would only give a right to the money lost, not to the land sold to raise it — But a judgment of condemnation is nothing more than the Plaintiff’s adopting the property of the Defendant for his person, and thereby excusing his appearance. The after judgment prc-supposes this to have been done.

* Tidd’s Practice 934. Sargeant on Attachments, Appendix.

† Eckhols v. Graham 1 Call’s Rep. 492.

‡ Term, 181 .

§ 3 Massachusetts Rep. 558, 564.

Hall, Judge,

delivered the opinion of the Court:

In this case the attachment created a lien on the land; and had that been continued by the Defendant’s proceeding thereon; obtaining a judgment of-condemnation of the land and then final judgment, issuing execution, and having the land sold by virtue thereof, his title would be good. But this has not been done. The only effect of issuing the attachment and having it levied, was to give the Court jurisdiction, whereby judgment might be obtained. In this case the levy was made upon the land, but no judgment was subsequently entered condemning the land to satisfy the final judgment which might be rendered. When this final judgment was rendered, the' lands levied on were thrown into the general mass of landed property belonging to the Defendant, by taking out an execution against his property generally as is done in ordinary cases. The lien created by the attachment was lost, and the title to the land vested in the lessor of the Plaintiif; the deed to Mm being executed long before either the judgment was obtained or an execution issued. Let the rule for a new trial be discharged.