Opinion
(June Term, 1843.)
Where slaves, on the petition of the owners have been ordered to be sold for a division, one who was no party to the petition but claimed by a lien, under an execution against one of the petitioners before the sale, has no right to apply to the Court to have the share of such petitioner in the proceeds paid over to him.
APPEAL from Battle, J., Fall Term, 1842, of NORTHAMPTON.
The following case was agreed upon by the parties. At March Term, 1842, of Northampton County Court, which was on the first Monday of March, a petition was filed at the instance of James W. Harding, Archelaus Tisdale and others, praying for a sale, in order to make partition of certain slaves held in common by the petitioners; and it was then decreed by the Court that a sale should be made upon a credit of six months, and the petitioner James W. was appointed commissioner to make such sale. On the second day of April following the sale was effected, and a return thereof was made to the ensuing June Term of Northampton County Court, and at the September Term next ensuing, the report of sale was confirmed. At the Superior Court of Nash County, held on the third Monday of March, 1842, George Cooper recovered a judgment against the said Archelaus Tisdale for the sum of $...... Execution thereupon was issued, tested on the said third Monday of March, and came to the hands of the sheriff of Northampton on 17 April, 1842. At June Term, 1842, of Northampton County Court, George Cooper, by petition to the Court, put in his claim (321) by virtue of his execution to the share of the said Archelaus Tisdale, in and to the proceeds of the sale of the slaves aforesaid, and prayed the Court, that, when the said share should be collected, as much thereof be paid to him as would satisfy his execution. At the same term the petitioner and commissioner, James W. Harding, by petition, also put in his claim to the share of the said Archelaus, in and of the proceeds of the said sale, alleging that he had purchased the same at the price of four hundred dollars, and prayed that the whole share might be paid to him when collected. The case was continued till September Term of said Court and the money arising from the sales of the slaves having been paid into the Clerk's office, the Court, after argument, ordered that as much thereof be applied to the satisfaction of the said Cooper's judgment as might be sufficient therefor, and the residue be paid to the said James W. Harding, from which said order and decree the said James W. appealed to the Superior Court. As to any effect which the following admissions may have on the judgment of the Court in this particular case, it is admitted that the assignment to the said James W. was for a valuable consideration, and executed on 4 April, 1842. It is further admitted that, on the day of the rendition of the judgment in the Superior Court of Nash County, the said Archelaus fled from that county, which was his residence, leaving not a sufficiency of property to satisfy the judgment, and all of this property has been sold either under an execution issuing on the said judgment or under older executions and levies. And that immediately after the assignment and before the execution reached the sheriff of Northampton he fled clandestinely beyond the limits of the State, carrying away his visible and other estate.
This case coming on to be heard upon an appeal from the County Court, his Honor was of opinion that there was no error in the order appealed from, and affirmed the same; and it was ordered that the appellant pay the costs of the appeal. From this decree James W. Harding appealed to the Supreme Court.
Bragg for Harding.
B. F. Moore for Cooper. (322)
Cooper, in his petition to the County Court of Northampton, states that he has a lien, by virtue of his execution from Nash, on Tisdale's share of the slaves that were ordered to be sold by the said Court, as is stated in the case; and that the Court should now order so much of the proceeds of the said sale, as belonged to Tisdale, to be applied to the satisfaction of his lien. Cooper, however, was no party to the petition for the sale of slaves for a division, nor was he a purchaser of them under the order of sale. He had no title either in law or equity, but by force of his claim of lien under his execution against Tisdale. Whether his claim of lien be good or not, we do not pretend to decide. But it seems to us he is such a stranger to the original petition and order of the Court, under which the slaves were sold, that he cannot now be permitted to intervene in the way he is attempting. We are unable to find any authority to support his claim in this manner. We therefore think that the judgment must be
PER CURIAM. Reversed.
Cited: Harding v. Spivey, 30 N.C. 68; Jordan v. Faulkner, 168 N.C. 468.
(323)