McMillan v. . Parsons

52 N.C. 163 | N.C. | 1859

At the said term (February) final judgments were obtained (164) in suits begun by attachments levied on the land of the debtor previously to the November term aforesaid, but after Waugh's and Gambill's. The first of these were one in favor of John Parsons, and one in favor of Joseph B. Parsons, both levied at the same time. The next were one in favor of A. B. McMillan, and one in favor of A. D. Parsons, levied at the same time, but after the preceding two. Next were one in favor of Solomon Parsons and one in favor of Wright Wingate, levied at the same time, but after the preceding two sets were levied. Next, one in favor of Hugh Smith, levied after the preceding three sets of levies. Writs of venditioni exponas issued on these judgments, and were in the hands of the sheriff when he made this application for directions.

His Honor, in the court below, decided that Bledsoe's fi. fa., issuing from August, and aliased at November, was first entitled, then thevenditioni exponas of Waugh and Gambill; then the venditioni exponas of John Parsons and J. B. Parsons; then the venditioni exponas of A. B. McMillan and A. D. Parsons; then the venditioni exponas of Solomon Parsons and Wright Wingate; then the venditioni exponas of Hugh Smith, and that the surplus be applied pro rata to the fi. fas. of J. B. Reeves, A. B. McMillan, and S. H. Thompson. The last three, being dissatisfied with this order, appealed. The attachment law, Rev. Code, ch. 7, sec. 1, provides: "The attachment shall be deemed the leading process, and the same proceedings shall be had thereon as on judicial attachments." The court law, Rev. Code, ch. 31, sec. 52, provides: "When the sheriff shall return in a civil action that the defendant is not to be found in his county, the plaintiff may, at his election, sue out an attachment against the estate of such defendant," "and the estate so attached, if not replevied, or sold, according to the rules prescribed for estates taken in original attachments, shall remain in the custody (165)of the sheriff until final judgment, and then be disposed of inthe same manner as estates taken in execution on a writ of fieri facias." Thus it will be seen that property taken under an original attachment is in the custody of the sheriff from the date of the levy, in the same manner as if it had been taken under a fieri facias; and the consequence is that the attaching creditor acquires a lien from the date of the levy. This is the only construction that the statute admits of, although, as was forcibly urged on the argument, the effect is to give to a creditor who proceeds by attachment an advantage in respect to the property over a creditor who proceeds by an ordinary writ; for although he may have issued his writ before the attachment was levied, still he can acquire no lien until he gets his judgment; so he may start first, and get judgment first, and yet the attaching creditor is entitled to be first satisfied, because his lien took effect by force of the levy.

It seems to have been considered necessary to make the attachment bind from the levy, for if the estate attached could afterwards be taken away, this "leading process" would be left without a foundation to rest on; and it was, no doubt, taken into consideration that the advantage which the attaching creditor acquired as a consequence thereof, in respect to theproperty of the debtor, was compensated for by the fact that the creditor, suing by writ, had a lien on the body of the debtor, and could resort to the bail for his satisfaction; whereas the former had nothing to rely on but the estate attached, and in regard to any other property of the debtor the creditors were left to acquire priority by the test of their respective executions.

Upon an examination of the authorities we find this construction of the statute is settled, and we can see no sufficient reason for disturbing it. In Amyett v. Backhouse, 7 N.C. 63, it is assumed that the attachment created a lien from the date of the levy, although the case goes off on the ground that the lien was lost because it was not followed up by a venditioni exponas, but had been waived by suing (166) out a fieri facias. So in Harbin v. Carson, 20 N.C. 523, the lien of the attachment, from the date of the levy, is assumed, and the decision goes so far, in order to give effect to it, as to hold that a purchaser at a sale under the venditioni exponas was entitled to the land in preference to one who had before purchased at a sale by the sheriff under a fieri facias, which bore test after the date of the levy of the attachment. We are not prepared to say that we could follow that case to the extreme of holding that a purchase under avenditioni exponas divested the title previously acquired by a purchaser under a fieri facias, but the case shows how entirely settled the principle of the lien of the attachment was considered to be.

This quaere, as to Harbin v. Carson, is predicated on the ground of a long-established principle in favor of purchasers at sheriff's sales. A title thus acquired is not allowed to be disturbed by the lien of a seniorfieri facias, or of an elegit, or, as it would seem, of an attachment,Green v. Johnson, 9 N.C. 309; Ricks v. Blount, 15 N.C. 128, where the matter is elaborately discussed. In short, the books are full of cases fixing the principle in favor of the purchaser at sheriff's sale and leaving the creditors to contest in respect to the distribution of the money made by the sale, as in our case.

We entirely concur with his Honor who presided in the court below as to the manner of distributing this fund. The attaching creditors acquired a lien by the levies, subject to the execution bearing a prior test. When that is satisfied, these levies attach as if there had been no such execution.

PER CURIAM. Affirmed.

Cited: Glass Plate Co. v. Furniture Co., 126 N.C. 893.

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