Carter v. Sheriff of Halifax , 8 N.C. 483 ( 1821 )

From the facts of this case, it appears that Smith became the purchaser of Carter's judgment against Powell, and that it was his intention to do so when he paid Carter for it, but not to satisfy the execution which had issued against Powell; and by doing so, he did injury to no one. It does not appear what the sheriff's return on the execution was, but it is more than likely it was returned, levied on Powell's property; because, from the next court a venditioni exponas issued; also other executions issued from the same court on behalf of other creditors who claim to have their executions satisfied in preference to Carter's execution, which belonged to Smith. This cannot be done, because Carter's execution was first levied on the property, and the lien thereby created remained until it was sold under the venditioni exponas, unless, indeed, there was some fraud practiced by Carter or Smith; but no fraud appears, because the plaintiffs in those executions are not in a worse situation than if Powell's property had been sold under the first execution that issued against him. 'Tis true, where an execution is levied upon property, and the plaintiff in such execution, to favor the defendant, forbears to sell, and holds on under the lien thereby created, the property may be sold under executions of a younger date; but that is not the case here, because at the time the indulgence was given to Powell by the plaintiff no other execution had issued against him. After other executions issued, no indulgence was given. Cited: Bank v. Griffin, 13 N.C. 353; Palmer v. Clarke, ib., 357;Foster v. Frost, 15 N.C. 429; Harrison v. Simmons, 44 N.C. 81.

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