Opinion
June Term, 1821.
When a sheriff had levied an execution on certain lands, and a venditioni exponas, together with a special writ of fi. fa. issued afterwards on the same judgment, and was levied by the sheriff on goods which, seven days prior to that time, he had seized by virtue of a fi. fa. issuing on a younger judgment, the court directed the proceeds of the sale to be paid in satisfaction of the fi. fa. which first came to hand, and was first levied.
FROM ROWAN. This was a motion to have money which had been paid by the sheriff of Rowan to the clerk of the court applied in satisfaction of an execution against one Pearson, in favor of Allemong and Locke; the motion was opposed by Allison and Kelly. The facts were these: At August Term, 1820, of Rowan court, Allemong and Locke obtained a judgment against Pearson on which a writ of fi. fa. issued, tested of the same term, and came to the hands of the sheriff on 26 August, 1820, and was by him levied on the same day on Pearson's goods and chattels.
At May Term, 1820, of Rowan court, Allison and Kelly obtained a judgment against Pearson on which a fi. fa. issued to the sheriff, and was levied on four and a half lots in the town of Salisbury. This fi. fa. was returned to August Term, 1820, when a writ of venditioni exponas and a special fi. fa. issued, commanding the sheriff to sell the lots before levied on, and also to make the residue of the debt and costs out of the goods and chattels of Pearson. These writs of ven. ex. and (326) fi. fa. came to the hands of the sheriff on 2 September, 1820, and the sheriff levied on the goods and chattels on which he had before levied under the fi. fa. of Allemong and Locke. The property was advertised and sold under both writs of fi. fa., and the money arising from the sale was not sufficient to satisfy both executions. The lots levied on under the first fi. fa. of Allison and Kelly were on the same day exposed to sale, but in consequence of certain encumbrances on them, discovered on 26 August, 1820, no purchaser could be found. The sheriff paid into the office of the clerk the money arising from the sale of the goods and chattels for the benefit of the persons who might be thereto entitled. On these facts the Superior Court of Rowan ordered the money to be applied in satisfaction of the fi. fa. in favor of Allemong and Locke, whereupon Allison and Kelly appealed.
Ruffin for Allemong and Locke.
When a sheriff has seized property under a fieri facias, (327) and before he has completed execution another feri facias comes to his hand with a prior lien or, to speak more properly, having the preferable right of satisfaction, he should satisfy the last-mentioned execution first. Without entering into a question as to the propriety of issuing this special writ of fieri facias (the value of the land levied on not (328) being returned by the sheriff, which appears to be the English practice) I must confess I am strongly disposed to support such a writ as an easy and convenient remedy. I think there did not come to the hands of the sheriff before he had completed the execution, that is, before he was compellable to return the writ and pay over the money, at which time the execution was certainly completed (though he might have completed it before the return by paying it over, if he thought proper), any fieri facias or other process which had a preferable right to satisfaction, the special writ of fieri facias being a mere blank and perfectly dead until life and activity were given to it by selling the lots levied on by virtue of the original, for by the very words of the special writ the sheriff could not seize one cent's worth of property until the balance was ascertained, which could not be done until the lots were sold. Whether an alias execution can be connected with the original execution when execution creditors are competing with each other, either as to its test or delivery, whether executions bind at the common law between persons of the above description, from their test or delivery, are questions of too much moment and difficulty to be decided on an ex parte argument in a case which does not require it.
I therefore think that the money should be paid to Allemong and Locke; the special fieri facias forming no objection thereto, as being perfectly inoperative until the sale of the lots which had been levied on.
Cited: Cannady v. Nuttall, 37 N.C. 268; Dunn v. Nichols, 63 N.C. 110; Motz v. Stowe, 83 N.C. 438; Worsley v. Bryan, 86 N.C. 345.
(329)