42 S.E. 590 | N.C. | 1902
The plaintiff's judgment was docketed 22 December, 1888. The defendants Berryhill Son obtained their judgment before a justice of the peace, and docketed same 19 December, 1888. They obtained a judgment upon (192) said judgment, and docketed same 2 December, 1895. The homestead of the defendant in the above judgment had been laid off 3 December, 1888. Said homesteader having died since said second judgment, the defendant Pharr, his administrator, sold the homestead under a decree to make assets, and, the proceeds being insufficient to pay both above-named judgments, this *144 action is submitted without controversy, under the Code, sec. 567. The plaintiff contends that, by obtaining the second judgment, Berryhill Son lost the priority to which their first judgment was entitled; that there was a merger, and that the Berryhill judgment has rank only from the date of the second judgment, in 1895.
In Andrews v. Smith, 9 Wend., 53, Savage, C. J., says: "The only question in this case is whether a judgment before a justice, rendered upon a judgment before another justice, extinguishes the judgment first obtained. As to the judgments in courts of record, this question has been settled in the negative. 1 Johns., 517, and cases there cited; 5 Wend., 129, 222. The general principle of law governing in cases of this kind, and which applies to all securities, is, that a security of a higher nature extinguishes inferior securities, but not securities of an equal degree." (The italics are in the original.) To same purport, Mumford v. Stocker, 1 COW., 178; Preston v. Parton, Cro. Eliz., 817, cited in Weeks v. Pearson,
(193) Lawton v. Perry,
We must concur in this conclusion, that a judgment upon a judgment, being of the same dignity, does not fall within the general rule that a cause of action is merged in the judgment. Here, by virtue of the act of 1885, the justice's judgment, when docketed, remained a lien on the homestead after the lapse of ten years; but would lose its validity as to any other property after ten years (McDonald v. Dickson,
In McLean v. McLean, 90 N.C. at pp. 531 and 433, Smith, C. J., says: "Assuming that the recovered judgment is but a renewal of the first, the one being the sole cause of action, we see no reason why both may not subsist and remain in force as separate securities for the same debt, with the advantages incident to each retained. It is not correct to say that one extinguishes the obligation contained in the other, and that the plaintiff's remedy must be sought only in the last. As soon as one judgment is entered, the plaintiff may take out execution, and at the same time bring another action upon the judgment, as itself a cause of action. This is clearly involved in the decision, if not directly decided in Carter v.Colman,
Affirmed. *146
(195)