Brem v. Jamieson

70 N.C. 566 | N.C. | 1874

Settle, J.

It was incumbent on the plaintiffs to maintain that the lien on the lands of William Means, acquired by tho judgment, in 1861, had been preserved by regular and successive executions, until the sale of the land in 1871. This he lias failed to do. There are two links wanting in the plaintiff’s chain of title, the absence of which renders it worthless:

1st. The gap in the executions from Spring Term, 1867, until the Special Term in December, of the same year:

2d. The name of William Means was omitted from the execution which issued from Spring Term, 1868, returnable to Fall Term, 1868.

The ordinance of the Convention of June 23, 1866, provided for the transfer of all actions of debt, covenant, assump-sumpsit and account, from the County Courts to the Spring Terms, 1867, of the Superior Courts, and declared that “ at the Spring Terms aforesaid, the Court shall, on motion, order the said judgments to be entered on the minute dockets, provided the same were not dormant when transmitted from the County Courts ; and on such entries being made, the said judgments shall be taken and held to be judgments of the Superior Courts, and writs of fieri facias and venditioni ex-ponas may issue, as provided in section ten oí this ordinance, following the writs transmitted from the county courts, and preserving the liens, as if issued by the same Court. Section 10 provides that no writs of fi. fa. or ven. ex. on j udgments in debt, &c., shall issue from Spring Term, 1867, without permission of the Court.

The learned counsel for the plaintiffs attempted to bridge over the first chasm, by showing that in obedience to the ordinance, the plaintiffs had caused a transcript of the case to be returned to the Spring Term, 1867, of the Superior Court for Mecklenburg county, with all the fi. fas. that had been issued ou the judgment since 1871, and that they had pursued the regular course prescribed by law from 1861 to Spring Term, 1867 ; and he says, that inasmuch as the docket, was crowded at Spring Term, 1867, by the transfer of business from the county to the Superior Court, he could not get the ear of the Court to move that his judgment be entered on'the minute docket, and that he have execution thereon, as prescribed by the ordinance; and he insists, that as he made the motion as soon as be could got the ear of the Court, he ought not to be prejudiced by the delay.

It is true that the act of the law shall prejudice no one.. But it does not appear that the plaintiffs endeavored to get the ear of the Court. Such motions were generally allowed as a matter of course, and the plaintiffs should have alleged and shown that they endeavored to take action at Spring Term, 1867, in order to place them under the maxim, mgila?itibus non dorm-ientibus jura subveniunt.

Although they appear to have been vigilant from 1861 to 1867, yet we need not cite authority to show that the gap in the executions from Spring Term, 1867, until the Special Term in December, of the same year, destroyed the lien theretofore existing.

If, however, we were to 3rield to the forcible argument of the plaintiff's counsel, and pass by this objection, we would be immediately confronted by the insuperable defect in the execution which issued from Spring Term, 1868, returnable to Fall Term, 1868.

There were three defendants in the judgment, to-wit: J. C. Abernathy, R. F. Blythe and William Means, and all the executions had gone against them all, until Spring Term, 1868, when the execution was issued against Abernathy alone, omitting the name of Blythe and also the name of Means, the owner of the laud in controversy. This defect was also sufficient to destroy the lien on the land of Means, and to break the chain by which the plaintiffs claim title.

The Judgment of the Superior Court is affirmed.

Pjsb CueiaM. Judgment affirmed.