Perry v. Mendenhall

• Decision Date: 31 December 1858
• Citation: 57 N.C. 157,4 Jones 157
• Court: North Carolina Supreme Court
• Parties: EBENEZER PERRY v. G. C. MENDENHALL, Adm'r, and others.

4 Jones Eq. 157

57 N.C. 157

EBENEZER PERRY

v.G. C. MENDENHALL, Adm'r, and others.

Supreme Court of North Carolina.

December Term, 1858.

Where three attachments were levied on land and judgment taken on all three, but it turned out that the land did not sell for enough to satisfy the former two judgments, which had been levied before the one in question, it was held that the third attachment was, nevertheless, properly constituted in the court to which it was returnable by its levy on the land, and that the judgment thereon rendered was valid.

Aliter as to a levy of an attachment on personal property.

A fieri facias taken out on a judgment in an attachment, waives the priority of lein which the levying of the attachment gave the plaintiff, but it does not invalidate the judgment rendered in the case.

CAUSE removed from the Court of Equity of Stokes County.

It appears from the record of the County Court of Stokes, that an attachment was returned into that court at the instance of the plaintiff against the defendant, George W. Folger levied on 231 acres of land on the waters of Belew's Creek, on which a judgment was rendered at March Term, 1827, for $119, 90. It turned out that two other attachments had been previously levied on this land, and that the sum raised by its sale was exhausted before the plaintiff's debt was reached. The plaintiff did not take out a venditioni exponas to sell the property levied on, but took out two successive writs of fieri facias, returnable to the two next terms after the rendition of the judgment on which the sheriff returned “nothing found,” and the costs were paid by the plaintiff.

At June Term, 1854, upon the return of a second scire facias to revive the judgment, the judgment was taken according to the scire facias for $119 60, with interest, and former costs, upon which a fi. fa., issued to the next term of the court, and returned nothing found. Paul Worth, of the county of Guilford, died about the spring of 1854, upon whose estate the defendant, Mendenhall, took letters of administration. The defendant, George W. Folger, is one of the next of kin of the said Worth, and as such is entitled to a distributive share, and is not an inhabitant of the State. The bill is filed under the 20th section of 7th chap. of the Revised Code, to subject this distributive share to the satisfaction of the plaintiff's claim.

The administrator and the next of kin of Paul Worth, including the defendant, Folger, are made defendants. The administrator admits the sum of $184, as being in his hands, belonging to the said Folger. The other answers do not vary the case as stated above.

The cause was set for hearing on the bill answers and exhibits, and sent to the court by consent.

Miller and McLean, for the plaintiff .

J. H. Bryan, for the defendant .

PEARSON, J.

The bill is filed under the statute Rev. Code, chap. 7, sec. 20, giving a creditor the right to subject any fund in the hands of an executor or administrator to which a non-resident debtor may be entitled, which cannot be reached by an attachment at law.

The question is, has the plaintiff offered the proof necessary to establish his debt.

He relies upon a judgment rendered in his favor under an attachment, in the County Court of Stokes. The record of that proceeding sets out a levy on 231 acres of land, a judgment by default after due advertisement, and at a subsequent term, to-wit: March 1827, the verdict of a jury “assessing the plaintiff's damages to $119 90, of which, $115 is principal money-- judgment of the court accordingly.” At June Term, 1827, a fieri facias which had been issued on this judgment, was returned “nothing found.” The bill alleges that after the judgment was rendered, the land levied on was sold, but the proceeds of the sale were all consumed by prior levies, so that nothing was applied to the plaintiff's debt, which remains unsatisfied.

It was insisted, on the part of the defendant, that the judgment was void, and consequently did not furnish evidence of the debt, because there was no property of the debtor attached, which was necessary to constitute a case in court. In respect to the land, it was insisted, it was not the property of the debtor at the time it was attached under this proceeding, for that the title had been divested by the prior levies which consumed all it had been sold for, according to the...