Chatham County NcArchives Court.....McLean, Vs. Upchurch 1811-18
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 13, 2008, 12:05 am

Source: North Carolina Reports
Written: 1811-18

JULY TERM, 1818.

Doe on Demise of McLEAN and others v. UPCHURCH.

From Chatham.

1. When a defendant in an execution sells his lands after the execution is in 
the sheriff's hands, such sale is void, and the purchaser under the execution 
has the better title; and it seems the execution bound from its teste; it 
certainly did from its delivery.

2. An alias fi. fa., though a different piece of paper, is considered the same 
as the first fi. fa. as to the lien created.

This was an action of ejectment, and from the case agreed the following 
appeared to be the facts:

On 2 February, 1804, Robert Harris was seized of a tract of land including 
within its boundaries the land in dispute, and conveyed the same to Joseph 
Brantley. Jr., and John Crump. On 5 April, 1805, Crump conveyed his moiety to 
Brantley.

At November Term, 1801, of Chatham County Court, Brantley had confessed a 
judgment to Ambrose Ramsay for £160 2-6, with interest from 2 October, 1801, 
till paid; "execution to issue when called for." No process issued on this 
judgment until November Term, 1805, when a fi. fa. was sued out, after which 
executions regularly issued within a year and a day up to February Term, 1807, 
when another execution issued, which was levied on the land in dispute, and 
under which a sale of the land was made by the sheriff to McLean, one of the 
lessors of the plaintiff.

On 4 February, 1807, Brantley conveyed the land to the defendant, who took 
possession under his deed.

Seawell, J. At the time when the sale was made by Brantley to Upchurch, viz., 
on 4 February, 1807, there was in the sheriff's hands Ramsay's execution, and 
the execution taken out from the term thereafter, though it is a different 
piece of paper, is still the same execution. We do not, therefore, see upon 
what principle it can be contended that the lands were not bound, as the sale 
was made not only after the teste of the execution, but after the delivery 
thereof to the sheriff.

If it be that these lands were acquired by Brantley after the judgment was 
obtained, we think there is nothing in that; for we do not decide how far a 
judgment binds lands, but think this case the common one of a party having 
lands and selling them after an execution is in the hands of the sheriff 
against them. There must be judgment for the plaintiff.

Additional Comments:
North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme 
Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 
1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. 
Uzzell and Company, State printers and binders, 1910.

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