Lemmons Lessee v. Alexander , 1 Tenn. 84 ( 1804 )

Ejectment, plea not guilty and issue. — The plaintiff produced a grant dated November the 26th, 1789, upon a military warrant to Minos Cannon, and a deed from Cannon to the lessor of the plaintiff, for 150 acres dated on the 13th of January, 1792.

The defendant's evidence showed that Ross obtained an attachment against Cannon returnable to the County Court of Davidson, which issued the 24th of October, 1792, after the execution of the deed from Cannon to the lessor of the plaintiff upon which the above land was attached.² On this attachment Ross obtained judgment against Cannon, at January sessions, 1794, of that court, and sued out an execution upon which he became the purchaser, and procured a sheriff's deed dated the 19th of May, 1794.

The defendant claimed under Ross by several mesne conveyances to himself.

It was proved on the part of the plaintiff, that Ross by his own acknowledgment had notice of the deed to the lessor of the plaintiff previous to the issuing of his attachment.

Upon this evidence the jury found a verdict for the plaintiff.

A rule for a new trial was discharged after argument, by Campbell, J., sitting alone.³

NOTE. — This decision, and those referred to in Cooke, were made under 1715, 38. Subsequently the Acts of 1819, 47, 2, and 1827, 59, were passed, by which deeds, whenever registered, were made to take effect, as between the parties, from delivery, but with the proviso that such registration should not affect the rights of creditors, or bonâ fide purchasers for valuable consideration without notice, acquired between the date or delivery of the conveyance and registration. Afterwards the Act of 1831, 90 was passed, the provisions of which were carried into the Code, §§ 2071-2075. By the case of Hervey New v. Champion, 11 Hum. 569, it was expressly decided that, "By the Registry Act of 1831 an unregistered deed is declared void as to creditors. Before registration, the creditors of the vendor may proceed against the property in any mode permitted by law, as by fastening upon it the lien of a judgment, or of an execution, or of an attachment. The levy of an attachment fixes a special lien upon the property attached, which, if the property be not released therefrom by replevy, is continued, and made effectual by the judgment of condemnation and sale under the writ of venditioniexponas. The lien is no less operative to defeat an unregistered deed than the lien of a judgment or execution; and it will hold whenever the latter would take effect."

The lien of an attachment is made effectual by sale under the writ ofvenditioni exponas. But the judgment creditor may resort to the ordinary writ of fieri facias, and cause it to be levied on the property attached, or such other property of the defendant as may be found. Seawill v. Williams, 2 Tenn. 273; Snellv. Allen, 1 Swan, 208; Boggess v. Gamble, 3 Cold. 148; Green v. Shaver, 3 Hum. 139; Perkins's Heirsv. Norwell, 6 Hum. 151. But the suing out of a fierifacias will be a waiver of the attachment lien, and, it seems, the lien may be lost by laches in not promptly suing out thevenditioni exponas. Snell v. Allen, 1 Swan, 208. — ED.

² An attachment a lien, 1 Da. Rep. 117.

³ Overton, J., had been employed, and White, J., was related to one of the parties.