(64) The action is trespass for taking and selling four negro slaves; and the defendant justified, as the Sheriff of Northampton County, under the execution hereinafter mentioned. On the trial the case was agreed to be as follows:
The plaintiff, one Archelaus Tisdale, and other persons were tenants in common of the slaves, and at the County Court of
Northampton, held on the first Monday of March, 1842, they filed their petition, for partition, and to that end for a sale of the slaves; and the sale was decreed accordingly, and the present plaintiff appointed the commissioner to make it. On 2 April next following the slaves were sold by the plaintiff and bid off by one William Harding, at the request and as the agent of the plaintiff, and on 15 April William Harding made a conveyance of them to the plaintiff. At the next term of the Court, held the first Monday of June, the plaintiff reported the sale to William Harding. On the third Monday of March, 1842, George Cooper obtained a judgment in the Superior Court of Nash County against Archelaus Tisdale, and issued thereon a fieri facias, tested of that day and directed to the Sheriff of Northampton, which was, on 17 April, 1842, delivered to the defendant, then the sheriff, and was returned nulla bona. Alias and pluries writs of fi.fa. regularly issued from term to term on the judgment, on all of which the sheriff returned nulla bona, until the last, and on it he seized the negroes in question and sold the share of said Tisdale therein — the plaintiff forbidding him to do so, and claiming the negroes as his.
At June Term, 1842, of the County Court George Cooper applied to have the bonds for the purchase money deposited in Court and for an order that the debt to him due on his judgment, and the execution then in the sheriff's hands, should be satisfied out of Tisdale's share of the bonds, when collected. At the same term the present plaintiff opposed the motion and claimed that share of the bonds under a purchase and assignment (65) from Tisdale. At September Term following the sale was confirmed without objection, and at September Term, 1843, the County Court (after a decision upon appeal by the Supreme Court) ordered the money to be paid to the several tenants in common, and the share of Tisdale to the present plaintiff. After that the sheriff made the sale, for which this action is brought.
The parties agreed that, if upon this case the Court should be of opinion for the plaintiff, judgment should be entered for $190.35, and if otherwise, then a nonsuit should be entered. The presiding judge held that the plaintiff was entitled to recover, and he had judgment accordingly, and the defendant appealed.
The case turns upon the operation of the original fieri facias. For if that created a lien on this property
it was preserved by the alias writs which regularly issued, and related to the teste of the first writ. Brassfield v. Whitaker,11 N.C. 309; Arrington v. Sledge 13 N.C. 359. This is so even against another execution. Yarborough v. Bank, 13 N.C. 23. That a fieri facias binds the property of the debtor so as to avoid any alienation by him after the teste is, as a general rule, so undoubtedly true as to need no authority to support it. The cases, however, of Stamps v. Irwine, 9 N.C. 232, and Finleyv. Lea, 20 N.C. 307, may be mentioned, in which the point was directly decided in ejectment and trover; and there are many other cases, both here and in England, at common law. It lies, then, on the plaintiff to show an exception to the rule which will cover this case. No direct decision has been adduced to support such an exception, nor, as it seems to us, any reasons offered on which it can be established. The most plausible (66) mode of putting the argument is that both sales, that under the decree for partition and that under the execution, are judicial sales; and, sales; and, therefore, that the former having been first ordered and first made, must be held effectual. It is true that in some instances of sales under the process of the law that which is first made will, for that reason, be upheld. For example, if property be taken under one fieri facias, and then another of prior teste come to the sheriff's hands, it is his duty to sell and apply the money to that of the elder teste; yet if there had been a sale under the execution of the younger teste, before the other was delivered, the sale would be good and the money applicable to the writ on which it was raised. Nay, if the creditor in an execution of older teste deliver it to the sheriff, but by directions to him prevents it from being acted on, it will not hinder the sheriff from proceeding to sell the debtor's property under a junior execution and applying the proceeds to it. Green v. Johnson, 9 N.C. 309;Palmer v. Clark, 13 N.C. 354. In those cases, however, it is to be remarked that there are the meritorious claims of creditors on both sides. If one of them will not sue out his execution, or will not sell on it, another ought not to be hindered from doing so, but he shall be at liberty to sell, and a purchaser under his execution is armed with the rights of the creditor and gains a title which the other creditor cannot defeat by his execution of older teste. The reason of that is that the law will not allow its process of execution to be obstructed, even by a like process, on which the party will not act; and therefore it holds it to be a fraud in a creditor who is entitled to a preferable execution if he uses it to protect the debtor's property from other executions, instead of raising
his own debt, by a sale, and leaving the residue of the property accessible to others. Palmer v. Clark, supra; Ricks v. Blount,15 N.C. 128. But this reasoning has no application to an alienation by the debtor himself, for that, on the other hand, is considered a fraud by the debtor, as tending to (67) defeat the process of the law for the recovery of judgment debts; and the purchaser is regarded in like manner, because, from necessity, the rule as to him is caveat emptor. Finleyv. Smith, 24 N.C. 225. That may work a hardship in cases of actual innocence in the purchaser. Hence, the law was altered in England by the statute of frauds. But, it may be remarked, that even changes only the period to which the lien relates from the teste to the delivery of the writ — still creating a lien before the seizure of the property, and, therefore, still applying the maxim caveat emptor. But we have no such statute, and the common law is still in force. Then, the inquiry is, whether a sale of this kind, though made under the authority of a decree, is, in respect of an execution, to be treated as if it were a sale under execution, or is to be regarded as an alienation by the party. It seems to the Court that it cannot be likened to the sales under execution of which we have been speaking, but that it partakes essentially of the latter character. There is, by the decree, no recovery of the property by one person from another, nor is there a sale for the benefit of a creditor, whereby the property or its value is taken in invito. But the whole proceeding is at the instance of the owner, and for his benefit in effecting partition. It is in reality but a mode of sale by the owner himself.Smith v. Brittain, 38 N.C. 347. If the owners be all of age, they can sell of themselves, and such a sale, though for the purpose of division, would not impair the lien of a fieri facias. The act (Rev. Stat., ch. 85, secs. 18, 19) was only intended to meet the inconveniences of the disability or obstinacy of some of the tenants, and facilitate the conveyance to a purchaser. It was never meant to interfere with the first rights of persons not parties to the proceeding for partition, whether arising upon a claim of property by adverse title or upon the lien of a creditor's execution. For the decree for the sale does not profess in itself to divest the title out of the parties, but (68) simply to order the sale of the thing as their property. Nor does it profess to guarantee the title, but, in the words of the act, the sale is only to pass "such title, interest and estate in the negro or chattel sold as the joint tenants or tenants in common had," and, of course, under the liens or encumbrances and in the plight in which they had it. It would be very mischievous
if an owner of property, belonging to more than one, should be declared able to exempt his share from execution and immediate sale by exhibiting a petition for partition and procuring a decree for a sale for that purpose. It would open a wide door for frauds on executions. On the other hand, but little hardship is imposed on the purchaser by treating this as the party's own alienation in law, as it substantially is in point of fact. The contract is not conclusive until it be reported and confirmed by the Court, for the want of an objection or of a sufficient objection to it. This gives the purchaser, in almost every instance, the certain opportunity of knowing before the sale is finally closed whether there is an execution of a teste that would overreach his purchase; and if there be, he may have the contract rescinded. This plaintiff, indeed, had knowledge of the execution, and acted with his eyes open. But the opinion does not depend on that circumstances, but solely on the lien of the fieri facias. As the plaintiff's knowledge of the execution did not add to its force against him, so, on the other hand, the confirmation of the sale, with the knowledge and without the opposition of Cooper, did not impair the efficacy of his writ. The Court has already decided, Ex parte Harding, 25 N.C. 320, that Cooper could not intervene in that proceeding, and, therefore, he could not object to the confirmation. Moreover, if that were otherwise, the sheriff might still insist on the justification to himself, by virtue of the writs in his hands.
It is also, perhaps, proper to advert to the case of a decree for the sale of a lunatic estate, which it was held in Latham
(69) v. Wiswall, 37 N.C. 294, would prevent a creditor from taking the property under an execution of a teste subsequent to the date of the decree. It may be observed first, that there is a distinction between that case and the present, in this: that there it was found necessary to restrain the creditor by injunction, which implies that he had the right at law to proceed on his execution. But the material difference is that the jurisdiction of the Court of Equity is peculiar over the property of idiots and lunatics, and that it is the duty of the Court to dispose of it or sell it as may be deemed the most advantageous for the support of the owner and his family and the payment of his debts. The decree for sale is, therefore, in effect a proceeding in rem
for the benefit of creditors, as well as of the helpless debtor; and for both reasons the Chancellor is bound to sustain his decree, and the proceedings under it, against an attempt to render them ineffectual and frustrate the administering of the effects under the directions of the Court.
PER CURIAM. Judgment reversed, and judgment of nonsuit, according to the agreement.
Cited: McIver v. Ritter, 60 N.C. 607; Horton v. McCall, 66 N.C. 162;Sawyer v. Bray, 102 N.C. 84; Alsop v. Moseley, 104 N.C. 63.
(70)