Allemong v. Allison, 8 N.C. 325, 1 Hawks 325 (1821)

June 1821 · Supreme Court of North Carolina

8 N.C. 325, 1 Hawks 325

Allemong and Locke v. Allison and Kelly.

From Rowan.

When a Sheriff had levied an execution on certain lands, and a. vendi-tioni exponas, together with a special writ offi. fa. issued afterwards on the same judgment, and was levied by the Sheriff on goods which seven days prior to that time, he had seized by virtue of a fi.fia. issuing- on a younger judgment, the Court directed the proceeds of the sale to be paid in satisfaction of the fi, fa. which first came to hand, and was first levied.

Thfc was a motion to have money which had been paid lly the Sheriff of Rowan, to the Clerk of the Court, applied in satisfaction of an execution against one Fear-son, in favor of Allemong and Locke : the motion was opposed by Allison and Kelly. The facts were these. At. August term, 1820, of Rowan Court, Allemong and Locke, obtained a judgment against Pearson, on which a writ off.fa. issued, tested of the same term, and came to the hands of the Sheriff on the 9.6th of August, 1820, and was by him levied on the same day, on Pearson’s goods and chattels.

At May term, 1820, of Rowan Court, Allison and Kelly obtained a judgment against Pearson, on which afi. fa. issued to the Sheriff, and was levied on four and a half lots in the town' of Salisbury. Thisji. fa. was returned to August term, 1820, when a writ of venditioni exponas and a special f.fa. issued, commanding the Sheriff to sell the lots before levied on, and also to make the residue of the debt and costs out of the goods and chattels of Pearson. These writs of ven. ex. and Ji. fa. came to the hands of the Sheriff on the 2d of September, 1820, and the Sheriff levied on the goods and chattels on which he had before levied under the f. fa. of Aliemong and Locke. The property was advertised and sold under both writs off. fa. and the money arising from the sale was not sufficient to satisfy both executions. The lots levied on under the first ft. fa. of Allison and Kelly, were 'on the same day exposed to sale, but in consequence of certain incumbrances on them, discovered on the 26th of August, 1820, no purchaser could be found. The Sheriff paid into the office of the Clerk, the money arising from the sale of the goods and chattels, for the benefit of the persons who might be thereto entitled. On these facts, the Superior Court of Rowan ordered the money to be applied in satisfaction of the fi.fa. in favor of Aliemong and Locke, whereupon Allison and Kelly appealed.

Muffin, for Aliemong and Locke,

argued that they had issued their execution, and had it delivered to the Sheriff, and levied seven days before that of Allison and Kelly came- to his hands. *As between different Plaintiffs, if two f .fas. be of the same teste, (as here) the Sheriff is bound to execute that first, which is first delivered to him — Smallcomb v. Buckingham, Í Salk. 320— 1 Ld. May. 251. This is the language of all the case and treatises, that a fi.fa. binds the goods from the teste, as against the Defendant and purchasers from him; and from the delivery to the Sheriff, as against other executions. There is no principle or case to be found, that as between different Plaintiffs, the goods are bound or affected by the relative ages of the judgments, or by the. fact that the one f. fa. is an alias, and the other not: but that the first delivered to the Sheriff is preferred in every case. If it were otherwise, Sheriffs would be ruined : they must be governed by the writs in hand,; to •them alone can they look to ascertain who is entitled to the money raised : but if the law be otherwise, Sheriffs must examine and ascertain at their peril, the age of every judgment, bow many executions have issued on it, and whether those lie has be on old or new judgments ; the writs which are bis warrants, and ought to guide Mm, will afford him no light in his duty. But the case before the Court is very strong, because, the goods had been actually seized for Allemong and Locke, and were not subject to be seized by another execution ; and if sold under it, the sale would be void — (1 Show. 169 — 8 Johns. 347.)

But the case is clear upon another point: the execution of Allison and Kelly could not properly be issued. Tiie levy on their fi. fa. was a satisfaction, unless it appeared by the return that the property seized was of less value, or unless it turned out to be" actually of less value upon a sale on a ven. ex. It is a good plea to a sci.fa. on a judgment, that the Sheriff upon a fi.fa. on this judgment, took goods in execution — (Ci-o. El. 237.) The Sheriff is bound to sell at all events, and is accountable for the value returned by him — (2 Ld. May. 1073— 1 Salk. 322.)

The Sheriff should return that he has taken goods to a certain amount; the ven. ex. is to sell that property and raise that sum, and to levy some certain sum, being. the residue of other goods — (Tid'd 929.) And a new execution cannot issue, except for the surplus of the debt over and above • the value specified in the return — (~ Sound. 343.)

HeNdersoN, Judge.

When a Sheriff has seized property under njkrifadas, and before he has completed execution, another fieri facias comes to his hand with a prior lien or to speak more properly, having the preferable right of satisfaction, he should satisfy the last mentioned execution first. Without entering into a qunstion as to the propriety of issuing this special writ of fieri facias, (the value of the land levied on not being returned by the Sheriff, which appears to be the English pVact¡ce^ j lnust confess I am strongly disposed to support such a writ, as an easy and convenient remedy. I think there did not come to the hands of the Sheriff, before he had completed the execution, that is, before he was compellable to return the writ and pay over the money, at which time the execution was certainly completed, (though he might have completed it before the return by paying it over, if he thought proper) any fieri facias or other process, which had a preferable right to satisfaction, tiie special writ of fieri fiadas being a mere blank, and perfectly dead, until life and activity .were given to it by selling the lots levied on by virtue of the original; tor by the very words of the. special writ, the Sheriff could not seize one cent’s worth of property until the balance was ascertained, which could not be done until the lots were sold. Whether an alias execution can be connected with the original execution, when execution creditors are competing with each other, either as to its test or delivery ; whether executions bind at the Common Law between persons of the above description, from 'heir test or delivery, are questions of too much moment and difficulty to be decided on an ex parte argument in a case which docs not require it.

I therefore think that the money should be paid to Al-lemong and Locke. The special fieri jadas forming no objection thereto, as being perfectly inoperative until the sale of the lots which had been levied on.