Opinion
December Term, 1822.
An execution binds property in the hands of the defendant and all others claiming under him from the teste.
EJECTMENT for a lot of land in the town of Milton. The facts of the case were as follows: One James Daniel, being seized and possessed of the lot in question, became indebted to the Bank of New Bern, and for the payment of this debt the defendant Irvine became security. A judgment was obtained at the instance of the bank against said Daniel in the county court of Caswell, which met on the second Monday of October, 1820. On the 1st of November following, a fi. fa. issued on said judgment, which was tested on the second Monday of October. By virtue of this fi. fa. the sheriff levied on the property in dispute and returned the execution to January, 1821. A writ of venditioni exponas was then issued, under which the sheriff exposed the lot to sale, and the lessors of the plaintiff became the purchasers. James Daniel, for the purpose of indemnifying his surety, the defendant Irvine, on 17 October, 1820, which was subsequent to the judgment obtained in Caswell County court, conveyed the land, (233) which is the foundation of this suit, to one Ogilby, in trust to indemnify Irvine; and Ogilby, as trustee, conveyed the same to the defendant Irvine, after January, 1821, but previous to the sale by the sheriff under the writ of venditioni exponas. A judgment was rendered for the plaintiff in the court below, whereupon the defendant appealed.
Murphey for appellant.
Ruffin for appellee.
The case was submitted without argument.
The execution binds the property in the hands of the defendant, and all others claiming under him, from the time that it bears teste. 1 Term, 729; 1 Salk., 320; 1 Ld. Ray, 252; 1 Comyn's, 35; 16 East, 278, note. I therefore think the rule for a new trial should be discharged.
BY THE COURT: No error.
Cited: Palmer v. Clarke, 13 N.C. 357; Deaver v. Rice, 20 N.C. 569; Harding v. Spivey, 30 N.C. 65.