Opinion
(June Term, 1830.)
1. Where a justice of the peace finds the plea of plene administravit in favor of the defendant and issues a fieri facias, which is levied on the land of which the debtor died seized, upon a return thereof to the County Court, and an award of a venditioni exponas on a scire facias against the heir, the levy is mesne process in the new suit against the heir, and creates no lien upon the land.
2. But where the fieri facias is against a living debtor, the subsequent return is only a mode of placing the proceedings upon record, and the levy binds the land from the time it was made.
3. On several writs of scire facias against an heir the creditor who first obtains judgment and execution, and proceeds thereon is entitled to a priority.
RULE nisi against the defendant, the sheriff of Mecklenburg, to show cause why an amercement nisi, for not returning an execution in favor of the plaintiff, should not be made absolute, the following facts were stated for the opinion of the Court; and it was agreed that if the plaintiff was entitled to all the money in the hands of the defendant, the rule was to be made absolute; if otherwise, it was to be discharged.
The plaintiff sued out a warrant against the administrator of one Miller, who had pleaded plene administravit, which plea was by the justice found for the defendant. An execution was issued by the justice, which, in default of chattels, was levied on the lands which had descended to the heirs of Miller. A return thereof was made by the constable to November term, 1826, of the County Court; writs of scire facias regularly issued to the heirs to show cause why the land should not be sold, and final judgments were obtained thereon at the August term following, when the execution upon which the amercement nisi was obtained came to the hands of the defendant.
No counsel for either party.
FROM MECKLENBURG.
At February session, 1827, of the same Court verdicts were obtained by other creditors of Miller against his administrator establishing (350) the amount of their debts; but in those cases the issue of fully administered was also found for the defendant.
Writs of scire facias also issued on these verdicts against the heirs of Miller, and were regularly prosecuted to judgment at the following May term — the term before the plaintiff obtained judgment against the heirs. On these judgments executions were issued to the defendant, under which the lands were sold.
His Honor, Judge DANIEL, holding that the lands were bound from the levy of the plaintiff's execution, so as to give him a preference over the other executions, made the rule absolute, and the defendant appealed.
Considering the numerous tribunals from which executions emanate in this State, and the diversity of officers to whom they are directed, it is not surprising that new questions respecting them should often arise, calculated to puzzle the bar and the bench. The present is one which is brought before this Court for the first time; but it does not seem to us to be so difficult as it is novel or important. It is contended by the plaintiff in this rule, and so decided by the Court below, that a fieri facias issued by a justice of the peace against the administrator of Miller, and by the constable levied on the land in the hands of the heir, on which, after the scire facias from Court, a judgment was given against the land, is entitled to preference over another creditor, who gets his judgment in Court after the levy by the constable, and before the final judgment in Court in the suit founded on that levy. We should think so, too, if the justice's execution could be regarded as process of execution against the land. In Lash v. Gibson, 5 N.C. 266, it was held that the execution of a justice first levied is to be first satisfied, as against other executions of the same character, and also against executions issuing from Court after such (351) levy. There the proceedings were altogether between living persons, and the justice's execution expressly runs against lands and tenements in default of chattels. There is no new judgment rendered in Court; it is not a lis pendens, in which the party can make defense; and all the Court does is to see whether the papers be regular, and if so, award a venditioni exponas. The only purpose of this return is to put all the proceedings upon record, on which a change of the title to land takes place. Laws 1794, Rev., ch. 414, sec. 19. But in the present case the justice's execution is not directed against the land, but only against the goods of the intestate in the hands of the administrator. If the latter, indeed, deny that he hath goods, the constable is directed to levy on the lands and return it to Court. But this is not by way of execution against the land, or against the heir. After such return a new process issues to the heir, and he is let into a full defense, just as much as he is when the judgment has been in Court, and no levy is made on the land. It is, therefore, not so much a record on which process shall issue to the heir with the view of getting a judgment against him. How can that be regarded as creating a lien on the land, which precedes the judgment against the heir? In attachment it is so, because the party does not personally appear, and the property stands in his stead without further personal process. But in the case before us, the justice's execution, levy, return, and scire facias issued thereupon are parts of mesne process, and not of execution, against the heir. It is like the case of two writs of scire facias against the heir, founded on judgments in the Court. They create a lien from their issuing, as against the heir himself and purchasers from him, but not as against each other. That creditor who first gets his final judgment and execution (352) against the lands and proceeds thereon will be first satisfied. So it is here. We are obliged to consider the whole as mesne process, as far as the heir is concerned. In each a scire facias issues to the heir, and a new judgment after the same defense is given in each case. The levy of the execution does not create a specific lien on a particular part of the lands, for upon the return of a levy on a particular tract in the hands of one heir or one devisee the scire facias is not to the heir or the devisee who owns the part levied on, but the heirs and devisees generally, and the judgment and execution are not against that land in particular, but against the lands descended generally. We therefore think that the executions issued from May term are to be first satisfied; consequently the judgment below is reversed.
PER CURIAM. Reversed.
Cited: Ricks v. Blount, 15 N.C. 139; Hamilton v. Henry, 27 N.C. 220.