FROM CRAVEN.
Although my opinion would have coincided with that of the dissenting judge, in Green v. Johnson, 9 N.C. 309, and for the reasons given by him I surrender it in deference to the majority of the Court. The rule then established has since been several times acted on; and repeated decisions of the Court have an authority which a judge has no rightful power to disregard. But I can not carry the rule further by following out its supposed analogies, so as to work injustice to parties, afford facilities to fraud, encourage delays, and annul other rules equally well established. Before that case the law was understood to be that as against alienations by the debtor himself fierifacias bound from the teste; but as between creditors, that first delivered to the sheriff had the preference, or, rather, that it created an obligation on the sheriff to apply the money to it. I admit that it is now altered to this extent: that where the conduct of the parties is fair and bona fide an execution of elder teste is entitled to the preference, and executions of equal teste to an equality; and the time of the delivery makes no difference, where nothing else appears; provided, all were delivered before the return day and before the sale. But this can not apply to a case in which the party keeps his writ in his pocket, for the very purpose of preventing its being acted on. Such conduct constitutes a legal fraud, and he who is guilty of it must be postponed to him who has duly and diligently enforced his judgment by process. I should have thought indeed that this principle applied to executions of anyteste which the creditor failed to deliver to the sheriff. His negligence merited the loss of his debt, as against another creditor, who, being more vigilant, delivers his writ and takes the risks of seizure. Besides, the sheriff has a right to some reasonable rule arising upon the facts within his own knowledge, for the application of the money. But certainly Green v. Johnston, 9 N.C. (357) 309, altered that in a certain degree; and I submit thus far; but I can not extend it. It is well settled that if a plaintiff deliver his writ to the sheriff and order him not to proceed until some other creditor press him on further execution, when he is to enforce the lien created by the first writ, the creditor giving such orders loses his preference ipsofacto. (Kellogg v. Griffin, 17 Johns., 274). This rule was recognized by
this Court in Carter v. Sheriff, 8 N.C. 483. For the law does not encourage men to try experiments, how long they may indulge their debtors in safety to themselves, when in so doing they give them a delusive credit, at the expense of others. Fair dealing consists not in keeping incumbrances hanging over a debtor's property of which he is left in possession, but in proceeding at once to the satisfaction of the debt, and leaving the balance unfettered to answer others. Now, in every case where the execution is not delivered, this presumption is much stronger than where it is delivered accompanied by orders not to sell. For it cannot but be that the suing out the execution is a mere cover to the property, by means of a lien not intended to be enforced. There is not the least purpose of obtaining that satisfaction which is the fruit of the law, and for which the writ was given. This is very different from the case of alienating by the debtor. There, indeed, the property is bound. Stamps v. Irvine, 9 N.C. 232; Gilkey v. Dickerson,10 N.C. 293. The reason is that as to a purchaser the law sayscaveat emptor. The estate is bound as against the defendant in the execution, and so it shall be as against his vendee, because he can sell more than he has, and every purchaser is presumed to buy on the responsibility of the seller. But it is very different with another execution creditor. He claims against both the defendant and the prior execution; and the law will not endure that its process shall be defeated by such acts as inevitably ensure chiefly, if not entirely, to the advantage of the debtor. If the judgment creditor indulges in such case, he trusts the debtor, and he must trust him at his (358) own risk. When other creditors are concerned delay tends to deceive and embarrass them, by protecting the property for the defendant's use.
The fact that Palmer Co.'s execution purports on its face to be analias makes no difference. It would; if the first had been bona fide acted on; for if the party does all he can, issues his execution, but cannot find property to seize or bidders to buy, he is not to blame. In that case all the subsequent writs relate to the first. Such has been the facts in all the cases heretofore in this Court. If in any of them it had appeared that the original or any intermediate execution had not been delivered, the lien would not have been carried back beyond that one on which the party last proceeded. In plain terms, priority of judgment or execution shall give no preference where the plaintiff takes no steps effectually to enforce them, or after issuing execution arrests by his own act the progress of the sheriff in the discharge of his duty. Palmer Co. are, therefore, only entitled to a pro rata application of the money.
The case is decided entirely on the return of the sheriff; for the makes
it at his peril, and if false, we do not intend to preclude the parties from their redress. But if we felt at liberty to look into affidavits, our views of the law would only be sustained by the facts disclosed in this case. The plaintiff's attorney explicitly states that the agreement between him and Harvey was that he might take out execution, but not serve it before the next Court. What is this but a bargain between the debtor and creditor to create a lien, but not to use it? This would suit Harvey, if it remained so forever. He keeps the undisturbed possession, and has the full enjoyment of his property. If this were permitted, undue preferences would be constantly given for the sake of the debtor's ease, and just creditors defeated. Retaining (359) the execution is conclusive of the intent; and the evidence here expressly shows that the general inference of law is in this case justified by the fact.
PER CURIAM. Affirmed.
Cited: Arrington v. Sledge, post, 360; Dawson v. Shepherd, 15 N.C. 498;Goode v. Hawkins, 17 N.C. 401; Roberts v. Scales, 23 N.C. 91;Smith v. Spencer, 25 N.C. 267; Harding v. Spivey, 30 N.C. 66; Spencerv. Hawkins, 39 N.C. 291; Watt v. Johnson, 49 N.C. 193; McIver v.Ritter, 60 N.C. 607; Roberts v. Oldham, 63 N.C. 298; Dewey v. White,65 N.C. 228; Millikan v. Fox, 84 N.C. 110; Worsley v. Bryan, 86 N.C. 345.