Den on Demise of Amyett v. Backhouse

• Decision Date: 31 May 1819
• Citation: 7 N.C. 63
• Court: North Carolina Supreme Court
• Parties: Den on demise of DARIUS AMYETT v. ALLEN BACKHOUSE.

7 N.C. 63

Den on demise of DARIUS AMYETT

v.ALLEN BACKHOUSE.

SUPREME COURT OF NORTH CAROLINA

MAY TERM, 1819.

From Craven.

A. being seized of lands, on 1 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 2 December C. sued out an original attachment against A, which, on that day, was levied on the said lands and returned to Court. A default was entered against A, but there was no judgment of condemnation against the lands. Pinal judgment against A. being obtained, a fieri facias issued against his goods and chattels, lands and tenements, which was levied on the said lands, and at the sale thereof made by the sheriff were bid off 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, ch. 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, the 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 the first execution, and destroys the lien which it created.

George Lane being seized of the land in question on 1 December, 1811, sold the same to the lessor of the Plaintiff, for the consideration of $425. He gave a bond to make a title thereto within fen days; and on 10 December aforesaid, Lane executed a conveyance pursuant to the bond. On 2 December, 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 49l. 2s. 6d. 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 five 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 the 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 Pliantiff 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, sec. 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 remainin 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 are taken on a 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 facias for the residue, in the same writ. (Tidd, Practice, 934. Sargent on Attachments, Appendix.) Such is precisely the form to be observed on attachments.

But if the Plaintiff, instead of a Venditioni...