Opinion
(June Term, 1830.)
If the plaintiff in an original fieri facias grants indulgence to the defendant, and afterwards issues an alias, this indulgence does not affect the lien of the first writ as to the defendant or his vendee.
EJECTMENT, in which both parties claimed under one Jeffries. The lessor of the plaintiff produced a judgment in his favor against Jeffries, upon which an original writ of fieri facias issued, tested of the February term, 1820, of Nash County Court, which was returned, "stayed by the plaintiff." From the ensuing May term an alias writ issued, under which the land in question was sold to the lessor of the plaintiff.
Seawell W. H. Haywood, for the defendant. (360)
Badger, for lessor of the plaintiff.
FROM FRANKLIN.
The defendant offered in evidence a deed of bargain and sale for the same land, executed by Jeffries to him, dated between the February and May term, 1820, of the Court from which the execution above mentioned issued.
MARTIN, J., instructed the jury that a writ of fieri facias created a lien upon the property of the defendant from its teste; and where a succession of such writs issued the lien related to the teste of the first, so as to invalidate an alienation by the defendant as against the subsequent sale under the writ.
A verdict was returned for the lessor of the plaintiff, and the defendant appealed.
The principle laid down by the Court below is a very old one. It is considered as thoroughly settled that, as against the defendant in the execution, and all claiming by his alienation a fieri facias binds from its teste. Without entering at a large into the subject, it will sufficient to refer to what was said by me on this point in Palmer v. Clarke, ante, 356. Numerous cases also support the opinion, as to the relation of an alias duly issued.
PER CURIAM. Affirmed.
Cited: Harding v. Spivey, 30 N.C. 65; McIver v. Ritter, 60 N.C. 607.