Perry v. . Mendenhall , 57 N.C. 157 ( 1858 )

^* Decided at the last term. 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. 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 proceedings, for that the title had been divested by the prior levies which consumed all it had been sold for, according to the plaintiff's own showing; for this position, Armstrong v. Harshaw, 1 Dev. Rep., 187, was cited. The plaintiff's counsel replied that in that case the property levied on was aquantity of corn upon which there had been older levies beyond its value; here it was land — and he insisted that the difference in the kind of property distinguished the cases.

We are satisfied the distinction is a sound one. A levy upon personal property divests the title of the debtor and transfers it to the officer for the purposes of the writ. So that in an ordinary fi. fa. the debt is satisfied by a levy upon personal property of sufficient value, unless it is restored to the debtor. If the officer goes out of office, or if he dies, he, in the one case, or his personal representative in the other, must complete the execution, and not his successor in office. It is otherwise as to land. The levy does not divest the title of the debtor. If he dies before the land is sold, his widow is entitled to dower, notwithstanding a previous levy. Frost v. Etheridge, 1 Dev. Rep., 30, where the distinction is pointed out and established. It is well settled that in regard to land, the successor of the officer must complete the execution.

The result is, that this land did belong to the debtor at the time of the levy, although there were older levies; so a case was duly constituted in court, and the judgment was valid at the time of its rendition. This being so, it cannot be rendered void by the fact that, at a sale subsequently made, the land did not bring enough to satisfy all the debts in respect to which levies had been made. The validity of a judgment cannot depend upon the accident that a tract of land sells for a large or a small sum.

The defendant's counsel also insisted, although it may be that the judgment would have been valid if the plaintiff had followed out his levy by a venditioni exponas, he has waived the levy by issuing a fierifacias consequently the judgment was left without any ground to rest on, and is void; for this Amyett v. Backhouse 3 Murp. 63, is cited. There is no doubt in regard to the position that a prior levy is waived by issuing afieri facias, but the conclusion insisted upon by the learned counsel, is anon sequitur. Issuing a fieri facias waives the lien created by a prior levy. For instance: if there be two executions levied on land, and the creditor, having the prior lien, instead of following it up by a venditioniexponas, chooses to issue a fieri facias, he thereby looses his priority, provided the other creditor takes advantage of it. For he must depend upon his new writ, which creates a lien from its teste — whereas the other goes back to the levy, which he has followed out by a process in continuation. So, if after a levy the debtor conveys the land bona fide, if the creditor follows up his levy by a venditioni exponas, it overreaches the conveyance; but if he issues a fieri facias, which is a new and independent writ, he loses his lein, and the purchaser has priority. That was the point decided in Amyett v. Backhouse, sup. HALL, Judge, "when the final judgment was rendered, the land levied on was thrown into the general mass of landed property belonging to the defendant by taking out an execution against his property generally. The lein created by the attachment was lost, and the title to the land vested in the plaintiff."

The effect of taking out an execution against the property generally, i.e., a fieri facias, is confined to a loss of the lien created by the former levy, and it is not intimated that it would be extended so as to make the judgment void. Upon what principle, or for what reason, should it have this effect? Suppose the creditor had issued no execution — neither a venditioni exponas, nor a fieri facias, then, it is clear, there could be nothing to affect the judgment, and it would remain as record evidence of the debt. If he chooses, finding that the proceeds of the sale of the land will be consumed by older levies, to issue a fieri facias, in order to reach other property, if any could be found, and no other property is found, then the issuing of the fieri facias is, at most, a mere act of super-errogation, and it is not seen how or why it can affect the validity of the judgment, supposing it to be valid in the first instance — which is the conclusion arrived at above in considering the effect of the prior levies.

The plaintiff is entitled to a decree for the amount admitted by the defendant, Mendenhall, to be in his hands, as the judgment, with interest, exceeds that sum.

PER CURIAM, Decree accordingly.