Opinion
(December Term, 1831.)
1. Where an original fi. fa. issued to one county, and an alias issued to another, a sale by the defendant of his property situated in the latter county, made while the first writ was in the hands of the sheriff, is valid.
2. In England lands are bound by the judgment upon suing out an elegit; and therefore all the lands owned by the defendant at its rendition are liable for its satisfaction.
3. But here lands are bound only by the fi. fa. from its teste, and sales made after that time of land situated where the writ does not run are valid.
4. Per RUFFIN, J. An elegit may be sued out in this State.
EJECTMENT, submitted at FRANKLIN, on the last spring circuit, to his Honor, Norwood, J., on the following facts:
Seawell for plaintiff.
Badger for defendant.
A judgment was obtained in Bertie County Court against one William J. Newbern, at August Term, 1828, upon which a fi. fa. was made out, tested of that term, but by an agreement between the parties not delivered to the sheriff. An alias issued, tested of the November Term following, which commenced on the second Monday, being the 10th day, directed to the sheriff of Franklin, who returned nulla bona. A (159) pluries issued, tested of February Term, 1829, also directed to the sheriff of Franklin, who levied the same on the premises mentioned in the declaration, and sold them to the lessors of the plaintiff, to whom he executed a deed. On 8 November, 1828, W. J. Newbern, for a full consideration, and bona fide, conveyed the same land to the defendant.
Upon these facts his Honor gave judgment for the defendant, and the plaintiff appealed.
The Court does not deem it necessary to consider the effect, as against a vendee in Bertie, of the writ which was made out, kept in the office and never issued; because, supposing it to have been delivered to the sheriff of Bertie, it is our opinion that it would not invalidate the title of the defendants to the land in Franklin.
No case has been cited at the bar, or found by the Court, which extends the lien of any writ beyond the territorial limits in which it can be executed. It would seem that in reason it cannot be carried beyond those bounds, but is restrained to them by its terms. It is argued that it embraces all the property of the defendant, wheresoever situate, upon the ground that the party shall not defeat the judgment by any acts of his. I conceive that this is unduly enlarging the rule and the reason. It is not the judgment, but the execution to which the principle is applied. True it is that as to lands in England, the judgment is that to which respect is had; and as that is equally operative in every part of the kingdom, an alienation of the land situate anywhere after judgment is void as against the elegit. But in reference to the execution of a fi. fa. it binds in England from the delivery, and here from the teste; and any alienation is avoided which would defeat the writ. As to chattels then, it is not the judgment, but the execution to which we have regard, and the party is not permitted to defeat the process. But how can this be predicated of an act done in a place in which the process does not (160) operate? That writ can in nowise be said to be thereby eluded, and that writ alone can be looked to as affecting the property. The party is restrained by the writ from disposing of anything which by the same writ can be taken in satisfaction of the debt. This is carrying it far enough, for often executions by the fictitious relation to the teste overreach honest and bona fide sales. We find the law upon that subject certain and settled, and therefore we cannot change it from any sense of the hardship. In England, however, the mischief produced the provision in stat. 29 Car., 2, ch. 3, in favor of purchasers, that no writ of fieri facias should bind the property or the goods of the party, but from the delivery to the sheriff. This goes far to show what was considered in that country to be the law. What was the evil? That people bought goods and lost them by force of a writ afterwards sued, which, by a fiction of law, related to a day beyond the purchase. The remedy provided is, that no such fiction shall hereafter exist, but every man may conveniently know whether he is getting a good title by application to the sheriff, and ascertaining whether he has an execution in his hands against those goods. But this protection is manifestly but a mockery, if he must apply to every sheriff in England to see whether a fieri facias has been lodged in his office. It must mean the sheriff of the county in which the goods are; for to him alone can application be made without an inconvenience, which would prevent the making of any, and the statute would in fact have no effectual operation. Now this act of Parliament relates only to the time from which the writ shall bind, and is altogether silent as to the places in which it shall have force. This last is at common law. But I think the very object of the statute would be defeated as to the time, if the place be any other than the one county or bailiwick mentioned in the writ. And, therefore, I take the law to be there understood, as confining the efficacy of the writ to the territory mentioned in it, within which it is to be executed. It is more necessary that it should be so held here, since we have no market overt, by sales in which in England the goods may be passed even against an execution in that county. The fraudulent contrivances to evade (161) executions by the removal or sale of property may be easily suppressed either by an elegit, or by suing writs of fieri facias to several counties at the same time. Since this can be done, it ought to be required as affording to purchasers some opportunity of getting a knowledge of their vendor's power to sell.
I think, therefore, the judgment must be affirmed. I shall of course be understood, when speaking of defeating the particular writ, as not meaning to impeach the efficacy of an alias, as such, directed to the sheriff who had the original fieri facias.
PER CURIAM. Judgment affirmed.
Cited: Spencer v. Hawkins, 39 N.C. 291; Watt v. Johnson, 49 N.C. 193; Aycock v. Harrison, 71 N.C. 435.