Lash v. . Gibson , 5 N.C. 266 ( 1809 )

From Stokes. Gibson sued out a writ against Moore, on 29 August, 1807, returnable to September term following, when judgment by default was taken, and at December term following final judgment was obtained; and at the same term orders of sale were granted upon each of the aforesaid levies.

Writs of venditioni exponas were issued upon each of the orders of sale, commanding the sheriff of Stokes to expose to sale the land levied upon by the executions aforesaid, issued by a justice of the peace. A writ of fieri facias (267) was issued upon Gibson's judgment, which was levied by the sheriff upon the land aforesaid before the writs of venditioniexponas came to his hands. The sale of the land was advertised and made, both under the writ of fieri facias and the writs of venditioni exponas. The money arising from the sale was paid into the office, and it being insufficient to discharge all the executions, a question arose among the creditors how the money was to be distributed. Whether each was to receive a ratable proportion, or whether the executions were to be satisfied according to the priority of levy. And, lastly, whether Gibson, being a judgment creditor in court, and having obtained judgment by default at September term, was not entitled to a preference. We are not surprised that a case should arise circumstanced like the present; but it is not difficult to discover the principles by which it ought to be governed. In every country enjoying a jurisprudence like ours, collisions of interest like the present will often happen. It is an invariable rule, founded upon the principles of morality, that every man ought to enjoy all the fruits of an honest and laudable vigilance; upon this principle the maxim is bottomed, that the law favors the vigilant and not the supine. We are therefore of opinion that the money collected by the sheriff on the executions returned in this case ought to be distributed according to the priority of the levy of the executions. And even admitting that the judgment of Gibson in the County Court, which is a court of record, bound the land, the orders of sale are equally judgments of the same court; and although Gibson may have obtained his judgment earlier in the term than the orders of sale were granted, this will not vary the case, for the whole term is but one day in contemplation of law. Each execution has a lien upon the land from the time (268) of the levy, and the orders of sale had relation back to the times the levies were actually made; for the sheriff was not bound, in order to make a sale, to levy the writs ofvenditioni exponas. By these writs he was to expose to sale the land already levied on, and thus complete the act commenced by the levy. The judgment of the Court, therefore, is that the executions first levied be first satisfied.