In Briley v. Cherry, 13 N.C. 2, the plaintiff brought detinue against a person who had purchased a slave during the pendency of a former action of detinue, and the defendant's counsel contended that he was not bound by the former judgment against his vendor, because the plaintiff had not issued a scire facias whereby to gain the fruit of his former judgment, by which mode he admitted he would have been bound.Summary of this case from Cates v. Whitfield
(December Term, 1828.)
1. Privies in estate are those who succeed only to the rights of their vendor. A purchaser at a sheriff's sale is not privy to the defendant in the execution, as he succeeds also to the rights of the plaintiff.
2. Where, pending an action of detinue for a slave, that slave was sold at execution sale as the property of the defendant, a subsequent recovery in that action is not evidence of title in another, brought against the purchaser at sheriff's sale.
3. What is the effect of a judgment of detinue, Quere?
DETINUE for a slave, and on the trial the defendant set up the title in one Jackson, against whom he produced a judgment rendered before a single magistrate, with an execution thereon, and a bill of sale (3) for the slave in question, made by the constable to whom the execution was directed.
The plaintiffs then produced the record of a recovery made by them as executors, in an action of detinue brought for the same slave against Jackson, under whom the defendant claimed, and proved that the sale to the defendant was made during the pendency of that suit.
DANIEL, J., instructed the jury that the record produced by the plaintiff of the verdict and judgment obtained by them against Jackson for the negro in controversy was not any evidence to impair the title of the defendant to the slave, as the latter was neither party nor privy to the record; and that the fact that the action against Jackson was pending at the time of the defendant's purchase of the slave, yet the judgment therein did not make the defendant such a privy under Jackson as estopped him from showing that the plaintiff's testator had no title to the slave, but that the defendant was at liberty to show that the title to the slave was in Jackson at the time of the purchase made by him.
A verdict being returned for the defendant, the plaintiff appealed.
A verdict and judgment in an action of detinue are conclusive as to the title between the parties and their privies. And I think that the action of detinue is an affirmance of a continuing title to the thing detained, and that the plaintiff does not, as he does in an action of trover, disaffirm a continuance of title in himself, but may sustain an action for the same chattel against a third person, or even against the same party, although he may have obtained a judgment for it before, provided that judgment has not been satisfied; and I am at a loss to understand Wethers v. Wethers, 6 Mumf., 10, cited at the bar, where the executor of a former plaintiff brought an action of detinue against the executor of a former defendant, in which the plaintiff had recovered the same slave, and offered that verdict and judgment as evidence of title, which was rejected; because, as is said by the Court, it was not declared on. I think that it was evidence of title as much as a bill of sale. And a plaintiff in such case, and in fact in every other, declares not upon the evidence, but upon the fact.
Privies in estate are those who come in under the owner, and the estate stands burthened in their hands with those incumbrances (5) created by him before he parted with it. Therefore, if a suit was pending against him for the property when he parted with it, in which there afterwards was a judgment, that judgment relates to the commencement of the suit, and binds subsequent purchasers.
But one who comes in under a sheriff's sale at execution cannot be called a privy, for he is not only clothed with the title of the defendant in the execution, but also with the rights of the creditor, which may be paramount to those of the debtor quoad the thing sold. It is to his rights also that such purchaser succeeds, and therefore he is not privy in estate to the former owner. The verdict and judgment in this case, therefore, are not evidence against the defendant.
I do not consider that the defendant is a privy under Jackson. He claims under a sale made by a constable. When the title was acquired by him under the execution there was no judgment against Jackson, and his purchase did not make the defendant a party to the suit depending against Jackson; he ought not therefore to be bound by its determination. It may be that the rights of creditors to the negro in question are superior to that of the plaintiff, although the plaintiff's title be better than that of Jackson.
Suppose the plaintiffs had a bill of sale from Jackson, but upon a consideration, quite inadequate, they might recover against him; but a bona fide creditor of his may have an execution levied upon the property conveyed by the bill of sale, and thereby establish a right to it, which would be superior to that of the vendor or vendee, when at the same time, a subsequent vendee of Jackson had no better claim than Jackson himself.
Suppose, again, that after the plaintiffs had sued Jackson in detinue the present defendant had also brought an action of detinue (6) for the same property, and had recovered a judgment and taken possession under it of the property sued for, and then the plaintiff had obtained a judgment against Jackson for the same property; would it be thought for a moment that in a third suit by the plaintiffs against the defendant the plaintiffs' judgment against Jackson would be conclusive evidence against the defendant? It certainly would be considered as a proceeding to which the defendant was not a party, and by which, of course, he ought not to be bound.
In the present case the defendant does not claim under a judgment in an action of detinue, but he claims under a judgment rendered Jackson in invitum, and an execution which issued upon it.
I think that the charge of the judge below was right, and that the rule for a new trial should be discharged.
PER CURIAM. No Error.
Cited: Paul v. Ward, 15 N.C. 249; Vines v. Brownrigg, 18 N.C. 240; Sanders v. Ferrill, 23 N.C. 103; Cates v. Whitfield, 53 N.C. 269; Dancy v. Duncan, 96 N.C. 116.