Opinion
June Term, 1826.
The lien created by an execution is continued by an alias regularly issuing thereon; and if execution, at the instance of another plaintiff, issue after the lien of the first commenced, and before execution is fully done under it the alias come to the sheriff's hands, it shall have the preference.
APPEAL from Paxton, J., at WAKE.
Badger and Hawks for appellant. (310)
Haywood for appellee.
This was a case agreed, as follows: The plaintiff, David Brasfield, at the November Sessions, 1820, of Wake County Court, obtained a judgment against one Mark Cooke, for $390.34, with interest, etc., and costs. Upon this judgment the plaintiff sued out a writ of fi. fa., returnable to February Term of Wake County Court, 1821, directed to the sheriff of Wake, which in due time came to the hands of the defendant, then sheriff of the said county, and which was returned by him indorsed, "Nothing to be found."
Plaintiff then sued out an alias fi. fa., returnable to the May Sessions of the same year, which came to the defendant's hands on 6 March, 1821, and was returned, "Nothing to be found."
At February Session, 1821, of Wake County Court Hutchins G. Burton recovered a judgment against Mark Cooke for $2, 512.99, on which a fi. fa., issued, returnable to May Session, 1821, which came to the defendant's hands on 1 March, 1821. On the same day the defendant levied on a lot and improvements in Raleigh, belonging to Mark Cooke, and afterwards, on 27 April, in the same year, sold the same as sheriff for $1,100, and applied the purchase money to Burton's execution.
The case as above stated was submitted to Paxton, J., who gave judgment for the plaintiff for the whole amount of his debt, interest, and costs. Whereupon defendant appealed.
Brasfield's execution was a lien on Cooke's property, and that lien was continued by the alias execution which issued regularly after it.
Burton's execution issued after this lien commenced, and execution was not done fully under it before Brasfield's alias execution came to the hands of the sheriff.
Brasfield's execution had the preference and should have been first satisfied.
PER CURIAM. Affirmed.
Cited: Smith v. Spencer, 25 N.C. 260; Harding v. Spivey, 30 N.C. 65; Dobson v. Prather, 41 N.C. 34; Watt v. Johnson, 49 N.C. 193.