Williams's Administrators v. Bradley , 3 N.C. 363 ( 1805 )

admitted him on the ground that he was equally interested on both sides of the question; for if plaintiff recovered against Bradley, Bradley wouldrecover against the sheriff for making an illegal sale. If the plaintiff failed, then he was liable to the plaintiff, for he had purchased lands of Williams, and had promised to discharge Bradley's execution.

Secondly, he decided that if a former sheriff seized lands to satisfy this execution, there being personal property, it is not a discharge of the execution as to the defendant, and the new sheriff may still seize personal property, upon a new fi. fa. being delivered to him, and he ought to do so. Besides, Williams sold the lands to Bloodworth in September, 1802, and consented, as Bloodworth swears, that negroes should be considered as seized.

Thirdly, he decided that if a fi. fa. issues, it binds the property from the teste; and if a new execution be taken out within a year from the last return, though not from the last return term next after that, it is a sufficient continuance of the execution, and will lay hold (364) of the property of the defendant, though he dies between the return term and the next term, where there is a suspension of the execution. The authorities cited by defendant's counsel were Salk., 322; 2 Ba. Ab., 352; 1 Cro., 174, 181; 2 L. Ray., 851; 2 Viner, 8; 2 Leon., 78; C. Lytt., 290, b; 2 L. Ray., 808.

Fourthly, a purchase of lands by the sheriff from the defendant, and a promise by the sheriff to apply the purchase money to the satisfaction of the execution, is not a discharge of the execution, but is an executory contract, which does not satisfy the execution till performed.

NOTE. — On the subject of the lien of executions, see Ingles v.Donaldson, ante, 57, and the references in the note thereto, and alsoMcLean v. Upchurch, 6 N.C. 353.

On the second and fourth points, see Collier v. Bank, 17 N.C. 525.

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