Opinion
December Term, 1823.
The execution from a justice binds lands from the time of the levy, and an order of sale subsequently made has relation back to that period.
CASE brought by plaintiff against the defendant, sheriff of Ashe County, to recover from him the sum of $65, which it was alleged the defendant had received on two executions, which had been issued at the instance of the plaintiff against one Brown. The facts were that on 8 July, 1821, two executions issued in favor of the plaintiff against Brown for the sum of $32.50 each, and on the 4th of the following October these executions were levied on the lands of Brown. On the succeeding day, 5 October, George Bower sued out two executions against Brown for $68 each, which were levied on the same day on (569) Brown's lands. These several executions were returned at the same term to Ashe County court, orders of sale were made in each, and writs of venditioni exponas accordingly issued, all of which came to the defendant's hands at the same time. Defendant, by virtue of the writs, sold the land for the sum of $156. On these facts plaintiff's counsel prayed the court to instruct the jury that as plaintiff's executions were issued and levied before the date of Bower's executions plaintiff was entitled to have his first satisfied out of the sale of the land. This the court declined, and the jury was instructed that the money must be apportioned among the writs of ven. ex. A verdict was returned for plaintiff for $40. A new trial was prayed and refused, and from the judgment rendered plaintiff appealed to this Court.
Wilson for plaintiff.
The plaintiff claims by virtue of a prior levy of two executions issuing from a justice's judgment against Brown, who claims under a posterior levy. The executions were all returned to the same sessions of the county court, and judgment was then given that the land should be sold. It is impossible to distinguish this case from Lash v. Gibson, 5 N.C. 366, in which it was decided that the execution from a justice bound the land from the time of the levy, and that an order of sale subsequently made had relation back to that period. We see no reason to disturb that judgment, believing it to be founded on right principles, and it must govern the decision in this case. There must consequently be a
PER CURIAM. New trial.
Cited: Frost v. Etheridge, 12 N.C. 44; Parish v. Turner, 27 N.C. 282.
(570)