Mardre v. . Felton , 61 N.C. 279 ( 1867 )

At Spring Term, 1861, of that court, a judgment had been rendered against the defendant in favor of the plaintiff for $1,350 and costs. Upon this judgment a fi. fa. had been issued from said term and levied upon a tract of land belonging to the defendant. From the next term a writ of ven.ex. was issued, and returned to the succeeding term, "No sale for want of bidders." Since that no execution had been issued.

His Honor, pro forma, allowed the motion, and the defendant appealed. The question is: 1. Does the 5th section of the ordinance of the Convention of 1866, entitled "An ordinance to change the jurisdiction of the courts," etc., which provides that no scire facias shall be thereafter issued to revive a dormant judgment, include within its operation a motion for a writ of ven. ex. or an order to the sheriff to sell a tract of land which had been levied on more than a year and a day prior to the motion, but for some reason or other had not been sold? 2. If the ordinance does include a motion of the kind, is it not in that respect unconstitutional?

In Parker v. Shannonhouse, ante, 209, it is held that this section of the ordinance, confining its operation to a scire facias to have execution of a judgment by a writ of fieri facias, is not unconstitutional, for the reason that the remedy at common law was an action of debt on former judgment; and the statute Ed. I, ch. 45, Rev. Code, ch. 31, sec. 109, gives the creditor an additional remedy; so the effect of the ordinance is to repeal the statute in regard to this additional remedy, and to leave the creditor in respect to the remedy as at common law. But if the ordinance be made to include a writ of ven. ex., or order to sell property levied on, the reasoning in Parker v. Shannonhouse, as to the common-law remedy by action of debt, can have no application; and the naked question would be presented, Had the Convention power, under the restrictions imposed by the Constitution of the United States, to take from the plaintiff his right in the tract of land levied on, takenin custodia legis and set apart for the satisfaction of his judgment, and leave him at large, as he would be if put to his action of debt? His Honor was of opinion that the case is not included under the (281) 5th section, and that the plaintiff was entitled to a writ of ven. ex.

There is no error.

In Smith v. Spencer, 3 Ire., 256, it is held that a purchaser of land under a writ of ven. ex., issued more than a year after the levy without notice to the defendant, was entitled to recover against one who had purchased at a sale made by a trustee for creditors under a deed executed by the debtor after the levy, on the ground that the levy creates a lien, which sets apart the land for the satisfaction of the judgment, and there is nothing to take it out of the custody of the law before the debt is paid, as against the defendant and all claiming under a conveyance made by him; and a ven. ex. may issue at any distance of time, unless the levy has been waived or is overreached by a sale under a junior execution. A distinction is taken between a fieri facias and a venditioni exponas; and it is decided that the latter is not "a writ of execution," within the operation of the statute 13 Edw. I, ch. 45, and the Court uses this strong language: "We can see no reason why the defendant should claim to have the levy discharged, so as to prevent any action on it, unless that action be immediate and continued; he is not injured by its being enforced at any distance of time, and as to him the law may justly preserve the lien, until satisfaction of the debt be had." This decision was before our statute (Rev. Stat., ch. 31, sec. 114) went into operation, but the reasoning is applicable to both statutes, and the two must obviously have the same construction in respect to what executions come within their operation.

By the common law, if a capias ad satisfaciendum, or fieri facias, orlevari facias, or elegit was sued out, on a judgment which had been satisfied, there being no entry of satisfaction on the record, the defendant had no "day in court," and was put to his writ of "audita querela," which operated as a supersedeas to the execution until the allegation of satisfaction was disposed of. A resort to this writ, in order to get a day in court, was inconvenient and expensive. To remedy (282) this evil, 13 Edw. I, ch. 45, provides that no writ to have execution of a judgment shall issue after a year and a day from the rendition thereof, unless the plaintiff shall give the defendant a day in court byscire facias. In the construction of this statute, it became settled law that if a writ of fieri facias was issued within a year and a day from the rendition of the judgment, the plaintiff could sue out another writ offieri facias at any distance of time, as at common law, and thus put the defendant to his writ of audita querela, in order to get a day in court, to show that the judgment had been satisfied; 2 Inst., 469. The inconvenience growing out of this construction gave rise to our statute (Rev. Stat., ch. 31, sec. 114, Rev. Code, ch. 31, sec. 109) by which it is provided that "no execution shall issue upon any judgment after a year and a day from the rendition thereof," following the act of Edw. I, but changing the proviso, so as not to allow the clerk to issue an execution in cases where one had been issued within a year and a day, unless it was applied for within a year and a day "from the issuing of the last execution." In other words, the issuing of the last execution, instead of the rendition of the judgment, was made the date from which to count the year and a day, after which the plaintiff could not sue out execution without giving the defendant a day in court.

This being the whole scope and effect of our statute, it would seem that if Smith v. Spencer is well decided, that statute does not include an order to sell the property levied on, whether, in the language of Henderson, J.(Seawell v. Bank of Cape Fear, 3 Dev., 279), "it be simply called an order of sale, or be dignified with the name of a writ of venditioni exponas."

In respect to personal property, it is certain that neither the statute, 13 Edw. I, nor our statute, includes a writ of ven. ex., and it may be sued out at any distance of time without notice to the defendant, (283) provided the lien has not been waived; for the levy vests the ownership of the property in the sheriff, and he has power to sell without the writ, the only occasion for it being to compel the sheriff to do his duty, which of course may be done at any distance of time. But in respect to land we incline to the opinion, as the levy does not vest the ownership of the property in the sheriff, and he has no power to sell after the return day of the fieri facias, unless a writ of ven. ex. be issued, that the case comes within the operation of our statutes, for the words are broad enough to include it; the mischief is the same, and the remedy is equally fit and appropriate; i. e., by requiring the plaintiff to give the defendant a day in court before he can have an order to sell the land levied on, if he does not apply for it until after the expiration of a year and a day from the issuing of the original execution.

But taking this to be so, we think it entirely clear that the 5th section of the ordinance under consideration cannot, by any construction, be made to include either a writ of ven. ex., in respect to personal property, or to land; for the words are not broad enough to include orders of this kind, and are fully satisfied by allowing their operation in cases where it is necessary to have execution of a judgment by a writ of fierifacias. The supposed mischief is entirely of a different nature, and the remedy by action of debt is inapplicable; indeed, it is no remedy at all, for it requires the plaintiff to forego the lien created by the levy, and to take a new judgment, upon which he can only have the ordinary writ offieri facias.

It was urged by Mr. Winston that the 8th, 9th and 10th sections of the ordinance, in which the writs of fieri facias and venditioni exponas are specially named and put on the same footing, show that by a proper construction the 5th section was meant to include writs of ven. ex., as well as writs of fieri facias, "on the broad ground of a general (284) intention to put a stop to the collection of debts in every shape and form." We are unable to see the force of the argument.

The conclusion, that a motion for the writ of ven. ex. is not within the operation of the 5th section of the ordinance, makes it unnecessary to express an opinion upon the point, whether the Convention had the power to deprive the plaintiff of his lien, or right as against the debtor to have the particular tract of land applied to the satisfaction of his judgment.

We will merely say that a construction involving the exercise of a doubtful power will not be readily adopted in the absence of direct words, when the words used admit of another construction which steers clear of all questions in regard to power.

PER CURIAM. Judgment affirmed. Cited: Riddick v. Hinton, post, 293; Overton v. Abbott, post, 294; Boydv. Murray, 62 N.C. 241; Waynesville v. Satterthwaite, 136 N.C. 230;Marble Co. v. R. R., 147 N.C. 54; Michaux v. Rocky Mount, 193 N.C. 554.