Opinion
(December Term, 1833.)
Where a judgment was obtained against an infant heir by sci. fa. under the Act of 1789 (Rev., c. 311), with a stay of execution for one year, during which another creditor commenced suit, and obtained judgment against the heir on a bond of his ancestor, and issued a fi. fa. before the expiration of the stay; it was held that a purchaser under it had a better title than one under a fi. fa. afterwards issued upon the first judgment.
EJECTMENT for two lots in the town of Nashville. On the Spring Circuit of 1830, at NASH, before Norwood, J., a verdict was taken for the plaintiff subject to the opinion of the Court, upon the following facts:
The case was argued at two former terms, first by Seawell for the plaintiff; and Gaston and Devereux for the defendant; and afterwards by the Attorney-General for the plaintiff, and Badger, contra.
Both parties claimed under Athelston Anderson, who died in August, 1826. The title of the plaintiff was as follows: One Asael Vick brought suit against the administrator of Anderson, returnable to the February Term, 1827, of Nash County Court, at the return term the administrator pleaded plene administravit, and the plaintiff in his replication, admitted the plea and prayed judgment for his debt, which was entered. Two writs of scire facias issued upon this judgment returnable to the ensuing term of the Court, one to Dolphin Anderson, (129) a brother of Athelston, and the other to Thomas P. and Mary Anderson, children of a deceased brother, who were the heirs of Athelston. The last mentioned writ only was returned, and at May Term, 1827, final judgment was entered against all the heirs of A. A. with a stay of execution for twelve months, Thomas and Mary Anderson being infants. On 12 November, 1826, one John Alston sued out a warrant against the administrator of A. A. for whom the plea of fully administered was found, and on 26 December, 1826, an execution issued which was, on 12 January, 1827, levied upon the lots in dispute. This levy was returned into the County Court at the ensuing February Term, and upon it writs of scire facias issued, which were in all respects similar to those issued in Vick's and upon which similar judgments were entered at May Term, 1827. There was another judgment in all respects similar to the last, upon process commenced by the lessor of the plaintiff. Writs of fi. fa. upon these judgments, issued from May Term, 1828, under which the lots in dispute were sold by the sheriff, and purchased by the lessor of the plaintiff.
The defendant claimed title, 1st, to a moiety under a deed from Dolphin Anderson, the brother of Athelston, dated 19 September, 1826. before process had been sued out against him as heir.
2d. Under a deed from one Peyton R. Hammonds. It was stated in respect to this last deed, that Hammonds and A. A., being partners in trade and tavern keepers, in May, 1825, purchased the lots in dispute, and took a conveyance to them jointly in fee. The deed did not upon its face express that the conveyance was made to them as partners, neither was the existence of the partnership noticed in it. But the premises were held and used by them as partners, for the transaction of their partnership business. This deed was dated in May, 1827, and by it Hammonds, as urrviving [surviving] partner, conveyed both the lots to the defendant.
3d. One David Ricks, on 7 March, 1827, sued out a writ in debt against Dolphin, Thomas and Mary Anderson, upon a bond debt of their ancestor, Athelston, in which his heirs were bound, returnable to May Term, 1827, of Nash County Court — this write was executed upon Dolphin, and an alias (130) awarded as to the other defendants, which was executed. Final judgment in this suit was rendered at November Term, 1827, upon which a fi. fa issued returnable to the ensuing February Term, under which the defendant purchased. Upon these facts his Honor set aside the verdict, and directed a nonsuit to be entered, and the plaintiff appealed.
The deed of Hammonds passed to the defendant, at the least, the title to one moiety of the premises in dispute. Whether under the act of 1784 (Rev., c. 204, s. 6), it passes the whole as contended by the counsel for the defendant; or whether the joint business of those persons, in such trade, commerce, work, or manufacture, as is within the act; or whether the purposes must appear in the deed, or articles of copartnership, or may be otherwise shown; are questions of such magnitude, as to prevent the Court from expressing an opinion on them, without full deliberation, and until it shall be called for, as indispensable to the decision of a cause.
The deed of Dolphin Anderson to the defendant, was made before process sued in any of the actions stated in the record, and is effectual to vest in the defendant one undivided half part of the other moiety; which, for the purpose of the present case, is supposed to have descended from Athelston Anderson.
The question is thus reduced to this: which of the parties has the better title to the remaining fourth part, which descended to the two infant heirs, the children of a deceased brother of the intestate?
His Honor then stated the facts as above and proceeded as follows:
The argument for the plaintiff is, that the plaintiff under whose execution his lessors purchased, had liens (131) prior to that created by Ricks' judgment and execution, and therefore that the sheriff's sale and deed to him, conveyed the title.
It is undoubtedly the principle of the doctrine of lien, that it gives a preferable right of satisfaction out of the thing bound by it, unless it be lost by the laches of the person entitled to it, or in itself is defective as against some other person, whose rights and acts discharge the subject from it. If the lien be absolute, and extend to all persons, the property is bound by it conclusively, and into whose hands so ever it may go, it is cum onere. Such is in England, the effect on lands, of a judgment on which an elegit can be issued. It binds the land against alienation by the defendant, and also adheres to it in preference to a subsequent lien created by a second judgment, on which execution had been executed; provided, the first judgment creditor be not guilty of laches. It is not there held to be laches, for the creditor in the first judgment to withhold his execution, until another creditor has extended the land. The lien is lost only by such delay as prevents the issuing of the elegit at all. When thus displaced, a second judgment creditor can safely proceed on his. But the lien on chattels is very different. The judgment creates none against anybody; and the execution forms a lien, differing in its original continuance, as against different persons. Against the debtor himself and his alienees, at common law, the fi. fa. operated from its test, so as to avoid an alienation; and this, not only in favor of the writ, of which the test was anterior to the alienation, but of those issued subsequently, provided they purported to be founded on the first, and to be in continuation of it. But between creditors, the first lost his lien, or rather, never acquired it, if he delayed suing execution until, as some suppose, another creditor had sued his, and delivered it to the officer; or, as others suppose, until the second had his executed; and even if the first sued execution, and delayed proceeding on it, his lien was (132) dislodged in favor of the lien of a junior execution diligently acted on. These observations do not apply directly to the question we are considering; but they are nevertheless considered useful as tending to a clearer understanding of what is meant by the term lien, in reference to the rights of the general owner of the subject to which a lien attaches, and of the rights of several persons asserting distinct and conflicting liens on that subject.
It is here insisted, that the creditors under whose execution the lessor of the plaintiff purchased, had the prior liens; first, from suing the first process; and if not, then secondly, from obtaining the first judgments.
It is granted, that as against the heir, and a purchaser from him by the third section of the act of 1789 (Rev., c. 311), (which is in affirmance of the common law), the land is bound from the bringing of the action; and a fortiori by judgment rendered. But whether one judgment binds it in like manner, against another judgment and execution sued thereon, is a different question, and depends upon different principles. If enforced by elegit, the judgment is a lien on one half of the lands which the debtor had at the time it was rendered, by statute of Westminster 2 (c. 18), and a judgment against the heir on the bond of the ancestor, was at common law, against all the lands descended, of which the heir was seized at the time of action brought. ( Harbert's case, 3 Co. Rep. 12.) But in all these instances, there was no sale of the land. The creditors themselves are put into possession, to hold until their debt shall be satisfied by the annual value assessed upon inquisition. If a creditor under a junior judgment have the first extent, he is not injured by yielding to the preferable lien of a prior judgment; that is, he does not lose his debt. His satisfaction is postponed; that is all. When he who has the preference is satisfied by perception of the profits, the other may enter again. Not so when the execution commands a sale out and out. The interest of third persons, purchasers, must then be considered. If dormant liens can be asserted against them, and enforced by sale, their purchase money is a total loss. Hence, while it was admitted in this State, that lands were bound by judgment, notwithstanding the statute, 5 Geo. II, c. 7. (133) gave the writ of fi. fa. against them, it was yet only held, "that it was in this wise only — it hinders the debtor from disposing of the land himself; but if a fi. fa. issue upon a subsequent judgment, and the sheriff sells the lands under it, the title of the vendee cannot ever afterwards be defeated — it is valid for every purpose." Bell v. Hill, 2 N.C. 72, 95. The question was most elaborately argued in that case, and the whole learning and law of the lien of a judgment and elegit pressed on the Court; and the question was between persons claiming as purchasers under an elder and a younger judgment, and decided in favor of the latter, upon the sole ground, that he was the first purchaser. Since that day, the rule then laid down has never been questioned, as far at least as respects the title of the purchaser. Upon the principle of that case, and the words used by the Court, such a purchase would be sustained, adthough [although] a writ of elegit should afterwards issue on the prior judgment. The title, it is declared, passes to the first vendee, and cannot ever be defeated, but is valid for every purpose. If the necessity of supporting sales, upon the ground that otherwise none will buy under execution, as derived from the operation of executions on chattels, induce the Courts to apply the same rule to sales of land to one purpose, it might be expected to do so to every one. The interest of the first purchaser should be as much protected against the disturbance of an elegit, as against eviction by a subsequent absolute sale, If this be true, it would seem to follow, that the statute of Geo. II altered the law, not only by giving a new writ of fieri facias against lands, but by abolishing the former execution by elegit, or at least impairing the ancient operation as against a junior judgment. The question has never arisen in the Courts of this State, for if the right of the elegit still exists here, it has very rarely been acted on. I have never known or heard of that writ being actually sued. In Jones v. Edmonds, 7 N.C. 43, it seems to be taken for granted that it may be resorted to; and if it be, that it binds the lands of which the defendant was seized at the time of the judgment. This (134) observation was entirely incidental and not relevant to the point to be decided. It likewise leaves it as a question, against whom does it so bind? is it the party and a purchaser from him? or is it another judgment creditor and a purchaser under his fieri facias? The decision of those questions is not called for in this case; as neither of these parties claim under an elegit. The case of Jones v. Edmonds does, however, conclusively establish, that the judgment as such does not bind land, and if the plaintiff sues a fieri facias, the land is bound, as chattels, by the writ of execution, and by that alone; and this as against a purchaser from the debtor. Much more strong is the claim of the purchaser under another execution. There is another case in which the effect of a purchase at sheriff's sale, as displacing a previous lien there acknowledged to exist, is exhibited in a remarkable manner. In Green v. Johnson, 9 N.C. 309, the majority of the Court held, that a fi. fa. of older test, shall be satisfied before a younger one first delivered to the sheriff, contrary to what had before been generally understood to be the law. But it is unequivocally admitted by both of the Judges who made that decision, that the purchaser had at all events a good title to the land, and also that the creditor in the execution of the later test, should retain the money if paid over to him by the sheriff, although such payment and sale had been since the test of the elder writ, but before its delivery.
From this train of decisions, it is apparent, that the rule of the common law as to the lien on personal chattels by the fieri facias is completely incorporated into our law, regulating the lien upon lands, when proceeded against by the same writ. It is true that the creditor in the prior execution is frequently postponed, upon the ground of a fraudulent or negligent delay, to a creditor in a junior execution, who adopts the straight forward course of selling immediately. But that question is necessarily confined to cases in which the officer has both the executions at the day of sale, and to a contest between the creditors, or with the sheriff for the money. As to the continuing lien of the judgment and execution on the property itself, after a sale upon another execution, the great and moving (135) consideration with the Court is, the protection of the purchaser. This is not founded merely upon the rights of the creditor under whose execution he purchased, as being entitled to the first satisfaction, because he first delivered his writ. The rule was the same long before the statute, 29 Car. II; and rests upon public policy, that purchasers at sales under process of the law should be safe, because they get no covenants on which they can rely. It is so laid down by Lord Holt in Smallcomb v. Buckingham, 1 Ld. Raym., 251, and by Lord Coke in Manning's case, 8 Rep., 9.
Does a judgment and execution against an heir differ in this respect from those against persons for their own debts?
We do not now mean to extend our inquiry beyond the case, into the effect of such a judgment, on which an elegit has been sued, by both or one of the creditors. Both creditors here proceeded by fieri facias. The principle is as applicable to this as to other cases. It is that the first purchaser shall be protected. It is said, however, that the writ of fieri facias against an heir, following the judgment, is express in its mandate to sell the land descended, which the heir had when the original was purchased; and that in our law, the whole process is strictly and exclusively in rem: whereas, this execution in other cases, has no reference to the judgment, nor the estate the debtor then had; but only to its own test — upon this ground a specific lien is asserted on the lands in the hands of the heir; which cannot be displaced otherwise than by satisfaction. It is true, there is the difference suggested between the process upon a judgment against the heir, and against one for his own debt. But the inference claimed does not follow. For the relation of the fieri facias is, in every case, to its test, and to that extent the lien is as conclusive as that of one against the heir can be on the estate held by him at the time of the judgment or suit against him. Yet we have seen that the lien of the fi. fa. has not vigor to stand against a sale, posterior to its test, under a junior execution executed. There is nothing then in the terms of the (136) judgment or execution; for they cannot be more effectual to this end than the fi. fa. is by operation of law, as far as that operation is retrospective. The question recurs in each case, what alienation is to be overreached by it? To me it seems that every reason upon which, in any case, the law strips the lien of an execution from property sold under another execution, equally demands it in every case. Ordinarily, the creditor in the first judgment may obtain the first execution. If the right to the first satisfaction does not depend upon the commencement of the suits, it is the fault of him who gets the first judgment, and his fault only, that he does not get immediately, the fruit of his judgment by execution; and if he stands by, until another sells upon a judgment for a debt against his deceased debtor, he ought not to fare better than if the debtor were a living one.
In Bank v. Stanley, 13 N.C. 476, it was not intimated at the bar, nor surmised by the Court, that the creditors had liens referable to the date of their judgments, or the commencement of their suits. It was understood on all sides, that the preference depended upon the executions. Both judgments were there rendered at the same term, and it did not appear which creditor first took process against the heir. Consequently, if there had been a lien independent of that by execution, all the rules must have been discharged at once. But the rule on the clerk to issue the execution of the Bank was made absolute.
But it is urged here, that the creditors were not guilty of laches, for the execution was stayed by the law, and was sued out as soon as the party could.
It is assumed in that position, that the act of 1789 prohibits the issuing an execution against heirs, of whom one is an infant. The contrary was decided in Bank v. Stanley, supra, and as Dolphin Anderson was an adult, the plaintiff might, and therefore, ought to have sued out his writ, and delivered it to the sheriff, which would have given notice to other creditors and purchasers of his prior lien. But as Dolphin Anderson (137) was not served with process, and for that reason the judgment may be considered a nullity as against him, it would remain to be inquired, whether the act of 1789 does direct a suspension of execution generally against infant heirs. In the case just cited, Chief Justice HENDERSON expressed the opinion, that the proviso in the last section was to be restrained to cases where a guardian had sold the estate of the infant, as provided for in the previous part of the section. The construction generally received, however, has been, that all cases of judgments on scire facias against infant heirs are embraced; and that it was intended to give the guardian an opportunity of selling his ward's estate after the scire facias sued, of which the guardian would have notice by service on himself. To this opinion upon consideration of the whole act, I confess my mind inclines; though I am by no means confident: For the act is so badly framed, that any construction must be but conjectural, at best.
Yet this is certain: That it is not a general provision, extending to all suits against infant heirs, but only to those by scire facias. The words so limit it. There was no reason for the provision, in respect to the action of debt; for by the common law a larger and much more beneficial privilege is given to an heir within age, that of pleading his non-age, and praying the parol may demur.
The creditor by judgment on scire facias has no just cause of complaint against the law, if he lose a preference which he might have from mere priority of judgment, by the suspension of his execution by operation of law. If his debt be due by specialty in which the heir is bound, he has his choice of the remedies at the common law, and under the statute; and it is his own fault to elect that one, on which he cannot have immediate execution. If the debt be one which can only be recovered from the heir under the statute, he must take the remedy thereby given, with all its imperfections and inconveniences. The Legislature intended to give additional remedies against heirs, and not to take away those before existing; and it is not unreasonable that a creditor who is seen, from the terms of his contract, to have looked (138) originally to the heir, should have the benefit of his higher security. There is nothing to restrain such a creditor from selling; and if he does sell, the purchaser for the reasons already given, acquires a valid title.
But it is insisted, that the lien is to be carried even farther back than the judgment; to the commencement of a suit; under the third section of the act of 1789.
To this it may be answered, in the first place, that if this were true, it would not help the plaintiff. The case states that David Ricks commenced his action of debt on 7 March, 1827. The plaintiff, under whose execution the lessor of the plaintiff claims, issued writs of scire facias returnable to May Term of of the County Court, which, of course, bore test of the preceding February term. But it does not appear when they actually issued. The words of the act are, "action brought, or process sued out against the heir or devisee," which certainly refer to the day of issuing, and not that of the test of the writ. Nor can the issuing of the execution by a justice of the peace be regarded as process either against the land or the heir, for this purpose — it is impossible to suppose that it was intended that purchasers from the heir were bound to take notice of all executions against the executor, for which the land might ultimately be rendered liable in the hands of the heir. Such are executions generally, which are issued by justices of the peace for the debt of the ancestor; and those rendered in court, where the executor has failed to plead fully administered or has become insolvent. The suit which arrests the alienation of the lien, is one "against him or her," that is, the heir; and the process is intended to be such as calls in the heir personally, to defend the land; which description no other will answer but a writ in debt, or a scire facias against the heirs, either under the acts of 1784 or of 1794. (Rev. chs. 226 and 414.)
But if the process of that kind had been first issued and served in the suits, under which the title of the plaintiff is derived, it seems to us that it would have made no difference. Irwin v. Sloan, 13 (139) N.C. 349, is an authority to this point. That case has been questioned in the discussion of the present; and as it was a decision without argument, the Court has been asked to review it, and has done so. but without perceiving any error in it. It accords with the Anonymous case (1 Mod. 253), in which it was held even in England, that as between creditors, the first judgment, and not the first suit gave the preference. Gree v. Oliver (Carth. 245) lays down a contrary rule, and denies the previous case in terms. But the case itself did not call for, and therefore did not warrant the expression of such an opinion. The creditor who sued last there, but got his judgment first, took it generally against the heir, and sued execution as for the debt of the heir, against the half of all the lands of the heir. The other creditor, whose suit was prior and judgment subsequent, took his judgment against the lands descended. He ought not to be barred by the proceedings of the other creditor, more than if he had not been a creditor of the ancestor, but of the heir; and it is not denied that the lands descended must satisfy the debts of him from whom they descend, before a debt of the person to whom they descend can touch them, because the property of every man must answer his own debts, before they can be applied to any other purpose. Whatever then may be the law of England upon this question, the case of Gree v. Oliver is not one which establishes it. But it may be admitted to be good law there, without overruling Irwin v. Sloan. That case was decided upon what was then conceived, and is now thought to be the settled law in this State, that the first execution finally acted on, was effectual, both for the benefit of the purchaser under it, and the creditor in it. The execution in favor of which the Court decided, and under which the money was raised, was issued from May to August Term, and the sale made, before Irwin obtained judgment, which was at August. He then claimed that the money should be applied to his judgment, rendered at that term, upon the ground that his execution created a lien. The Court held that it did not, because it was not execution against the (140) land. But the opinion went further, to say, that process against the heir creates a lien only as against the heir and purchasers from him, but not as against another creditor. It was thus stated, upon the effect which the adjudged cases had given to executions here; in obedience to which the money was awarded to that under which it was raised. For it would seem absurd to say, that a judgment is not binding upon a subject, but that the process, upon which that judgment is founded, is. For the reason why the land is bound from the commencement of the action (in cases when it is bound) is, that the judgment, in terms, is against the land of which the heir was seized at the time of process sued. This as a judgment, if a fieri facias be issued, does not overleap a sale under a junior judgment. A fortiori the period of commencing the suit, cannot impair the force of an execution on a prior judgment. The alienation meant in the act of 1789, is that by the heir, and not one by a sale under execution against the land in his hands as heir; for he is made liable personally for the value of the land aliened, as therein meant, and that cannot, therefore, be a sale under execution for his ancestor's debt. To the value of lands sold by him he is to be answerable for debts; and the creditors are in such case, to be preferred as in actions against executors. Whether this preference is to be determined by the dignity of the debts, or by the period of suing, is immaterial to the question now under consideration. If the former, it would strengthen the case of the defendant claiming under a judgment in debt, on the bond, against a judgment on scire facias, which may be for a simple contract debt. But supposing the latter to be the correct construction, it leaves in full force the principle of our decision; because it operates upon the heir personally and alone, for the money received by him, and no purchaser of the land is displaced.
Upon the whole therefore the Court is of opinion that there cannot be judgment for the plaintiff, without overruling many cases adjudged in this State, and disregarding the reasons upon which (141) they rest. We are aware that in several of the States, as New York and Maryland, for example, the statute of Geo. II has received a different construction, and it is held, that the judgment yet creates the lien, although the process of execution be by fieri facias; and consequently, that the elder judgment shall be satisfied, although a sale has been made under a younger. But this consequence can only take place where the judgment does create a lien; and there have been too many decisions upon that point in this State, for us, at this day to consider it open. If the judgment be not a lien, our conclusion seems to follow necessarily. Consequently the judgment must be affirmed.
PER CURIAM. Judgment affirmed.
Cited: Marchant v. Sanderlin, 25 N.C. 503; Smith v. Spencer, Ib., 267; Parish v. Turner, 27 N.C. 283; Dobson v. Prather, 41 N.C. 35; Harding v. Spivey, 30 N.C. 66; McMillan v. Parsons, 52 N.C. 166; Isler v. Moore, 67 N.C. 76; Woodley v. Gilliam, Ib., 240; Hooker v. Nichols, 116 N.C. 159.