9 S.E. 429 | N.C. | 1889
The facts are, that the plaintiff, as trustee, under a deed in trust, executed by Charles L. Summers and registered in Iredell County on 4 November, 1886, sold, for cash, certain lands, and that the defendant became the purchaser in the sum of six hundred and ten dollars. The plaintiff tendered a deed and demanded the purchase money, and, upon defendant's refusal to pay, brought this action to enforce the payment *107
thereof. The defendant contends that the plaintiff cannot make a good title because of the existence of a prior lien upon the land by virtue of a judgment rendered at August Term, 1886, of the Superior Court of said county of Iredell. At the said term a judgment was rendered against the said Summers and others for six thousand dollars, which greatly exceeds the actual value of the land. The said judgment was not docketed until 21 May, 1888. It does not appear that there was ever any execution or levy. His Honor held that the plaintiff was entitled to recover, and the defendant appealed.
The question presented for our consideration is, whether an undocketed judgment prevails over a registered deed in trust to secure creditors. Under the law as it existed prior to the adoption of the Code of Civil Procedure, there was not provision for the docketing of judgments, and a lien upon the property of the debtor was acquired only by issuing a writ of fieri facias, which bound the property of the debtor from its teste. Under the present system no lien is acquired upon land in the absence of an execution and levy, until the judgment has been "docketed on the judgment docket." The Code, sec. 435; Sawyer v. Sawyer,
Holding as we do, that the judgment is not a lien upon the property, as against this defendant, it is unnecessary for us to consider whether such a defense, had it been valid, could have been asserted by a purchaser at a sale like this, especially where the record is silent as to what was proclaimed as terms and conditions of the sale by the trustee.
We are of the opinion that the plaintiff is entitled to recover.
No error. Affirmed.
Cited: Alsop v. Moseley,
(122)