Opinion
June Term, 1821.
1. Where A pays to the sheriff the amount of an execution in his hands, in favor of B against C, if B afterwards assign his interest in the judgment to A, such payment shall be deemed a purchase and not a satisfaction of B's claim.
2. Where an execution is levied upon property, and the plaintiff in such execution, to favor the defendant, forbears to sell and holds on under the lien thereby created, the property may be sold under executions of a younger date.
THIS was a rule on the sheriff to show cause wherefore he should not return a venditioni exponas, Carter against Powell, satisfied. From HALIFAX. Several executions had issued and were in the hands of the sheriff, against Powell, returnable August, 1819. At the time the sheriff went to levy these executions, Smith told him he would pay the money at August Court, and, accordingly, on the first day of the court, he did pay it, and took the sheriff's receipt for the whole amount. At the time of the payment, both Smith and Powell expressed a wish that Smith's name should be endorsed on the executions as real plaintiff, and the sheriff accordingly did so. Smith at the same time requested the sheriff to ask the plaintiffs of record to assign over the executions to him; he did so, but none of them would so assign, except Carter, and the firm of Burrows Shine, to whom the sheriff paid the money for their executions. Under the executions on which Smith was endorsed as real plaintiff, and others obtained in October and November, 1819, the property of Powell was sold, and the creditors, under the latter judgments, claimed to have them satisfied, insisting that Carter's judgment had already been paid by Smith. Smith, on the contrary, contended that he had purchased Carter's interest, but had not satisfied Smith's debt.
From the facts of this case, it appears that Smith became the purchaser of Carter's judgment against Powell, and that it was his intention to do so when he paid Carter for it, but not to satisfy the execution which had issued against Powell; and by doing so, he did injury to no one. It does not appear what the sheriff's return on the execution was, but it is more than likely it was returned, levied on Powell's property; because, from the next court a venditioni exponas issued; also other executions issued from the same court on behalf of other creditors who claim to have their executions satisfied in preference to Carter's execution, which belonged to Smith. This cannot be done, because Carter's execution was first levied on the property, and the lien thereby created remained until it was sold under the venditioni exponas, unless, indeed, there was some fraud practiced by Carter or Smith; but no fraud appears, because the plaintiffs in those executions are not in a worse situation than if Powell's property had been sold under the first execution that issued against him. 'Tis true, where an execution is levied upon property, and the plaintiff in such execution, to favor the defendant, forbears to sell, and holds on under the lien thereby created, the property may be sold under executions of a younger date; but that is not the case here, because at the time the indulgence was given to Powell by the plaintiff no other execution had issued against him. After other executions issued, no indulgence was given. Cited: Bank v. Griffin, 13 N.C. 353; Palmer v. Clarke, ib., 357; Foster v. Frost, 15 N.C. 429; Harrison v. Simmons, 44 N.C. 81.
(485)