McIver v. Ritter
| Decision Date | 30 June 1864 |
| Citation | 60 N.C. 605 |
| Court | North Carolina Supreme Court |
| Parties | DUNCAN F. MCIVER and DANIEL MCIVER v. JOHN R. RITTER, THOMAS W. RITTER, A. A. F. SEAWELL and KENNETH WORTHY. |
A writ of Fi Fa can not continue by relation a lien on property created by a peevious writ. unless it purports on its face to be an alias.
The cases of Yarborough vs. State Bank, 2 Dev. 23. Palmer vs. Clark, 2 Dev. 356, Den on dem. Arrington vs. Hodge, 2 Dev. 359, and Harvey vs. Spivey, 8 Ired. 63, cited and approved.
The bill was filed in Chatham Court of Equity alleging that in 1853, the plaintiff purchased a tract of land in Moore county, of Jesse Bryan, at a public sale made in that county. That the defendants were present at the sale and the defendant Worthy, then Sheriff of that county, had in his hands at the time, an execution in favor of John R. Ritter against Bryan, issued from the County Court, on a judgment obtained in 1851, which Worthy knew to be unsatisfied, but that in order to defraud the plaintiffs, he declared to the people assembled there, that the execution was satisfied, and the other defendants heard his declaration and concurred in it for the same fraudulent purpose, thus inducing the plaintiffs to buy. That John R. Ritter one of the defendants, had obtained a judgment against said Bryan in Moore County Court, in 1851, and executions regularly issued thereon from term to term, (and were put into the Sheriff's hands,) until the land was sold in 1857 by virtue of one then in the Sheriff's hands, and John Ritter became the purchaser, who afterwards conveyed to Thomas Ritter and he to Seawell. All of the conveyances are charged to have been made for the purpose of defrauding the plaintiffs and obscuring their right and obstructing their remedy; and the plaintiffs insist that the defendants are trustees for them. The prayer is, that the “defendants John and Thomas Ritter and Seawell may surrender up said deeds to be cancelled,” and for such other and further relief, &c.
It appeared that though writs of fi. fa. issued from term to term from the rendition of the judgment until the sale by the Sheriff, no one appeared to be an alias on lts face.
No counsel for the plaintiffs in this court.
Phillips for the defendants .
The plaintiffs purchased lands described in the pleadings, of Jesse L. Bryan at a public sale in December 1853.
At that time, as they allege, there were executions running upon a judgment against Bryan, obtained in October 1851. At the sale the defendants (the Sheriff in whose hands were the writs fi. fa. combining) fraudulently represented the debts to be satisfied, and thus induced the plaintiffs to buy the land in question.
Notwithstanding the writs of fi. fa. were continuously sued out upon the judgment until January, 1857, when there was a levy upon the land, a sale, and a purchase by Ritter. The plaintiffs charge a fraudulent combination on the part of Ritter and other defendants to encumber their title, and pray to have the cloud removed.
An exemplifibation of the entire record of the case of Ritter vs. Bryan, has been filed as an exhibit, from which it appears that although writs of fi. fa. were regularly issued from...
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