30 N.C. 63 | N.C. | 1847
(64) The action is trespass for taking and selling four negro slaves; and the defendant justified, as the Sheriff of Northampton County, under the execution hereinafter mentioned. On the trial the case was agreed to be as follows:
The plaintiff, one Archelaus Tisdale, and other persons were tenants in common of the slaves, and at the County Court of *57 Northampton, held on the first Monday of March, 1842, they filed their petition, for partition, and to that end for a sale of the slaves; and the sale was decreed accordingly, and the present plaintiff appointed the commissioner to make it. On 2 April next following the slaves were sold by the plaintiff and bid off by one William Harding, at the request and as the agent of the plaintiff, and on 15 April William Harding made a conveyance of them to the plaintiff. At the next term of the Court, held the first Monday of June, the plaintiff reported the sale to William Harding. On the third Monday of March, 1842, George Cooper obtained a judgment in the Superior Court of Nash County against Archelaus Tisdale, and issued thereon a fieri facias, tested of that day and directed to the Sheriff of Northampton, which was, on 17 April, 1842, delivered to the defendant, then the sheriff, and was returned nulla bona. Alias and pluries writs of fi.fa. regularly issued from term to term on the judgment, on all of which the sheriff returned nulla bona, until the last, and on it he seized the negroes in question and sold the share of said Tisdale therein — the plaintiff forbidding him to do so, and claiming the negroes as his.
At June Term, 1842, of the County Court George Cooper applied to have the bonds for the purchase money deposited in Court and for an order that the debt to him due on his judgment, and the execution then in the sheriff's hands, should be satisfied out of Tisdale's share of the bonds, when collected. At the same term the present plaintiff opposed the motion and claimed that share of the bonds under a purchase and assignment (65) from Tisdale. At September Term following the sale was confirmed without objection, and at September Term, 1843, the County Court (after a decision upon appeal by the Supreme Court) ordered the money to be paid to the several tenants in common, and the share of Tisdale to the present plaintiff. After that the sheriff made the sale, for which this action is brought.
The parties agreed that, if upon this case the Court should be of opinion for the plaintiff, judgment should be entered for $190.35, and if otherwise, then a nonsuit should be entered. The presiding judge held that the plaintiff was entitled to recover, and he had judgment accordingly, and the defendant appealed.
The case turns upon the operation of the original fieri facias. For if that created a lien on this property *58
it was preserved by the alias writs which regularly issued, and related to the teste of the first writ. Brassfield v. Whitaker,
It is also, perhaps, proper to advert to the case of a decree for the sale of a lunatic estate, which it was held in Latham
(69) v. Wiswall,
PER CURIAM. Judgment reversed, and judgment of nonsuit, according to the agreement.
Cited: McIver v. Ritter,
(70)