Ricks v. Blount
| Decision Date | 31 December 1833 |
| Citation | 15 N.C. 128 |
| Court | North Carolina Supreme Court |
| Parties | JOHN RICKS v. HENRY BLOUNT. |
Where a judgment was obtained against an infant heir by sci. fa. under the Act of 1789 (Rev., c. 311), with a stay of execution for one year, during, which another creditor commenced suit, and obtained judgment against the heir on a bond of his ancestor, and issued a fi. fa. before the expiration of the stay: it. was held that a purchaser under it had a better title than one under a fi. fa. afterwards issued upon the first judgment.
EJECTMENT for two lots in the town of Nashville. On the Spring Circuit of 1830, at NASH, before Norwood, J., a verdict was taken for the plaintiff subject to the opinion of the Court, upon the following facts:
Both parties claimed under Athelston Anderson, who died in August, 1826. The title of the plaintiff was as follows: One Asael Vick brought suit against the administrator of Anderson, returnable to the February Term, 1827, of Nash County Court, at the return term the administrator pleaded plene administravit, and the plaintiff in his replication, admitted the plea and prayed judgment for his debt, which was entered. Two writs of scire facias isued upon this judgment returnable to the ensuing term of the Court, one to Dolphin Anderson,a brother of Athelston, and the other to Thomas P. and Mary Anderson, children of a deceased brother, who were the heirs of Athelston. The last mentioned writ only was returned, and at May Term, 1827, final judgment was entered against all the heirs of A. A., with a stay of execution for twelve months, Thomas and Mary Anderson being infants. On 12 November, 1826, one John Alston sued out a warrant against the administrator of A. A. for whom the plea of fully administered was found, and on 26 December, 1826, an execution issued which was, on 12 January, 1827, levied upon the lots in dispute. This levy was returned into the County Court at the ensuing February Term, and upon it writs of scire facias issued, which were in all respects similar to those issued in Vick's and upon which similar judgments were entered at May Term, 1827. There was another judgment in all respects similar to the last, upon process commenced by the lessor of the plaintiff. Writs of fi. fa. upon these judgments, issued from May Term, 1828, under which the lots in dispute were sold by the sheriff, and purchased by the lessor of the plaintiff.
The defendant claimed title, 1st, to a moiety under a deed from Dolphin Anderson, the brother of Athelston, dated 19 September, 1826, before process had been sued out against him as heir.
2d. Under a deed from one Peyton R. Hammonds. It was stated in respect to this last deed, that Hammonds and A. A., being partners in trade and tavern keepers, in May, 1825, purchased the lots in dispute, and took a conveyance to them jointly in fee. The deed did not upon its face express that the conveyance was made to them as partners, neither was the existence of the partnership noticed in it. But the premises were held and used by them as partners, for the transaction of their partnership business. This deed was dated in May, 1827, and by it Hammonds, as urrviving partner, conveyed both the lots to the defendant.
3d. One David Ricks, on 7 March, 1827, sued out a writ in debt against Dolphin, Thomas and Mary Anderson, upon a bond
debt of their ancestor, Athelston, in which his heirs were bound, returnable to May Term, 1827, of Nash County Court— this write was executed upon Dolphin, and an alias awarded as to the other defendants, which was executed. Final judgment in this suit was rendered at November Term, 1827, upon which a fi. fa issued returnable to the ensuing February Term, under which the defendant purchased. Upon these facts his Honor set aside the verdict, and directed a nonsuit to be entered, and the plaintiff appealed.
The deed of Hammonds passed to the defendant, at the least, the title to one moiety of the premises in dispute. Whether under the act of 1784 (Rev., c. 204, s. 6), it passes the whole as contended by the counsel for the defendant; or whether the joint business of those persons, in such trade, commerce, work, or manufacture, as is within the act; or whether the purposes must appear in the deed, or articles of copartnership, or may be otherwise shown; are questions of such magnitude, as to prevent the Court from expressing an opinion on them, without full deliberation, and until it shall be called for, as indispensable to the decision of a cause.
The deed of Dolphin Anderson to the defendant, was made before process sued in any of the actions stated in the record, and is effectual to vest in the defendant one undivided half part of the other moiety; which, for the purpose of the present case, is supposed to have descended from Athelston Anderson.
The question is thus reduced to this: which of the parties has the better title to the remaining fourth part, which descended to the two infant heirs, the children of a deceased brother of the intestate?
His Honor then stated the facts as above and proceeded as follows:
The argument for the plaintiff is, that the plaintiff under whose execution his lessors purchased, had liensprior to that created by Ricks' judgment and execution, and therefore that the sheriff's sale and deed to him, conveyed the title.
It is undoubtedly the principle of the doctrine of lien, that it gives a preferable right of satisfaction out of the thing bound by it, unless it be lost by the laches of the person entitled to it, or in itself is defective as against some other person, whose
rights and acts discharge the subject from it. If the lien be absolute, and extend to all persons, the property is bound by it conclusively, and into whose hands soever it may go, it is cum onere. Such is in England, the effect on lands, of a judgment on which an elegit can be issued. It binds the land against alienation by the defendant, and also adheres to it in preference to a subsequent lien created by a second judgment, on which execution had been executed; provided, the first judgment creditor be not guilty of laches. It is not there held to be laches, for the creditor in the first judgment to withhold his execution, until another creditor has extended the land. The lien is lost only by such delay as prevents the issuing of the elegit at all. When thus displaced, a second judgment creditor can safely proceed on his. But the lien on chattels is very different. The judgment creates none against anybody; and the execution forms a lien, differing in its original continuance, as against different persons. Against the debtor himself and his alienees, at common law, the fi. fa. operated from its test, so as to avoid an alienation; and this, not only in favor of the writ, of which the test was anterior to the alienation, but of those issued subsequently, provided they purported to he founded on the first, and to be in continuation of it. But between creditors, the first lost his lien, or rather, never acquired it, if he delayed suing execution until, as some suppose, another creditor had sued his, and delivered it to the officer; or, as others suppose, until the second had his executed; and even if the first sued execution, and delayed proceeding on it, his lien was dis-lodged in favor of the lien of a junior execution diligently acted on. These observations do not apply directly to the question we are considering; but they are nevertheless considered useful as tending to a clearer understanding of what is meant by the term lien, in reference to the rights of the general owner of the subject to which a lien attaches, and of the rights of several persons asserting distinct and conflicting liens on that subject.
It is here insisted, that the creditors under whose execution the lessor of the plaintiff purchased, had the prior liens; first, from suing the first process; and if not, then secondly, from obtaining the first judgments.
It is granted, that as against the heir, and a purchaser from him by the third section of the act of 1789 (Rev., c. 311), (which is in affirmance of the common law), the land is bound from the bringing of the action; and a fortiori by judgment rendered. But whether one judgment binds it in like manner, against another judgment and execution sued thereon, is a
different question, and depends upon different principles. If enforced by elegit, the judgment is a lien on one half of the lands which the debtor had at the time it was rendered, by statute of Westminster 2 (c. 18), and a judgment against the heir on the bond of the ancestor, was at common law, against all the lands descended, of which the heir was seized at the time of action brought. (Harbert's case, 3 Co. Rep. 12.) But in all these instances, there was no sale of the land. The creditors themselves are put into possession, to hold until their debt shall be satisfied by the annual value assessed upon inquisition. If a creditor under a junior judgment have the first extent, he is not injured by yielding to the preferable lien of a prior judgment; that is, he does not lose his debt. His satisfaction is postponed; that is all. When he who has the preference is satisfied by perception of the profits, the other may enter again. Not so when the execution commands a sale out and out. The interest of third persons, purchasers, must then be considered. If dormant liens can be asserted against them, and enforced by sale, their purchase money is a total loss. Hence, while it was admitted in this State, that lands were bound by judgment, notwithstanding the statute, 5 Geo. II, c. 7.gave the writ of fi. fa. against them, it was yet only held, "that it was in this wise only—it hinders the debtor from disposing of the land himself; but if a fi. fa. issue upon a subsequent judgment, and the sheriff sells the lands under it, the title of the vendee cannot ever afterwards he defeated—it is valid for every purpose." Bell v. Hill, 2 N. C., 72, 95. The question was...
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