Craven County NcArchives Court.....Allen Backhouse, Darius Amyett V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 25, 2009, 4:58 pm

Source: Nc Reports
Written: 1819

Den on demise of Darius Amyett v. Allen Backhouse

From Craven

May Term 1819

A. being seized of lands, on 1 December, 1811, sells the same to B. bona fide, 
and for a valuable consideration, and agreed to execute a conveyance within 
ten days thereafter; and within that time he executed such conveyance. On 2 
December C. sued out an original attachment against A. which, on that day, was 
levied on the said lands and returned to Court. A default was entered against 
A. but there was no judgment of condemnation against the lands. Final judgment 
against A. being obtained, a fieri facias issued against his goods and 
chattels, lands and tenements, which was levied on the said lands, and at the 
sale thereof made by the sheriff were bid off by C. who entered and took 
possession. B. is entitled to recover these lands, for the suing out of the 
fieri facias after final judgment is a waiver of the lien created by the levy 
of the attachment. To have the benefit of this lien, C. ought to have sued out 
a venditioni exponas.

Under the act of 1777, ch. 2, properly attached is directed to remain in the 
custody of the sheriff until final judgment, and "then be disposed of in the 
same manner as goods taken in execution on a writ, of fieri facias; and if the 
judgment shall not he satisfied by the goods attached, the Plaintiff may have 
execution for the residue." When goods taken in execution are to be disposed 
of, the proper mode is to sue out a venditioni exponas: and if the goods be 
not of the value of the debt, the Plaintiff may have a venditioni exponas for 
those seized, and a fieri facias, for the residue, in the same writ. But if 
the Plaintiff, instead of a venditioni exponas, sue out a general fieri 
facias, he waives the seizure under the first execution, and destroys the lien 
which it created.

George Lane being seized of the land in question on 1 December, 1811, sold the 
same to the lessor of the Plaintiff, for the consideration of $425. He gave a 
bond to make a title thereto within ten days: and on 10 December aforesaid, 
Lane executed a conveyance pursuant to the bond. On 2 December, 1811, the 
Defendant sued out an attachment against Lane, which, on the same day, was 
levied on the land aforesaid. The suit founded on this attachment, was 
returnable to December term of Craven County Court, which term commenced on 
the 9th day of the month. At that term a default was taken against Lane, and 
at March term, 1812, the default was executed, and a verdict, rendered for the 
Plaintiff of 49£ 2s, 6d. No judgment of condemnation was entered. An execution 
was issued to the Sheriff of Craven, which recited generally that a judgment 
had been rendered for said sum, and commanded him, "that of the goods and 
chattels, lands and tenements," of the Defendant Lane, he cause the aforesaid 
sum to be made. This execution was levied by the Sheriff on the lands in 
question, and the lands were sold by the Sheriff and purchased by the 
Defendant for the sum of five dollars, in the name of his infant son, to whom 
the Sheriff executed a deed. This deed recites, generally, a judgment of March 
term, 1812, an execution tested of the same term, and a seisin in the land on 
the day of such teste.

The Court charged the jury, that under these circumstances, the title of the 
Defendant's son, under whom he held, was bad: but that the Plaintiff must 
recover by the strength of his own title, and that by reason of the lien 
created by the attachment, the Plaintiff had not a good title. The jury found 
a verdict for the Plaintiff; and a rule for a new trial being obtained, it was 
sent to this Court.

For the lessor of the Plaintiff, it was argued that it was provided by the act 
of the second session of 1777, ch. 2, sec. 25, "that original attachments 
shall be returned to Court and be deemed the lending process; and the same 
proceedings shall he had thereon as on judicial attachments." The 23d section, 
in regard to judicial attachments, provides that "the goods so attached, if 
not replevied or sold, shall remain in the custody of the sheriff until final 
judgment, and then be disposed of in the same manner as goods taken in 
execution on a writ of fieri facias; and if the judgment shall not be 
satisfied by the goods attached, the Plaintiff may have execution for the 
residue."

When goods are taken on a fieri facias, and it be desired that they should be 
disposed of, the proper mode is to sue out a Venditioni exponas, commanding a 
sale of the goods so taken, if the goods so taken are not to the value of the 
whole debt, the Plaintiff may have a Venditioni exponas for those seized, and 
a fieri facias for the residue, in the same writ. (Tidd, Practice, 934. 
Sargent on Attachments. Appendix.) Such is precisely the form to he observed 
on attachments.

But if the Plaintiff, instead of a Venditioni exponas, sue out a general fieri 
facias, he waives the seisure under the first execution and destroys the lien 
on the property seized on, by it (Eckhols v. Graham 1 Call, 492), and so it 
was expressly decided in this Court in the case of Scott v. Hill. (Term 181.)

Whatever lien therefore was created by the attachment, it being precisely that 
with the lien on goods taken in execution on a fieri facias, such a lien was 
waived by the Plaintiff's suing out a general fieri facias and purchasing 
under it.

In the second place, the sale to Amyett was antecedent to the attachment, and 
it is not the design of the attachment laws, to subject to such a process any 
property but what truly and equitably, as well as nominally and legally, 
belongs to the debtor (3 Mass., 558, 564.)

Lastly, the verdict conforms to the justice of the case; and the Court will 
not disturb it to keep in possession a man who clearly has no right.

For the Defendant, it was argued, that although no judgment of condemnation 
appeared of record, yet in this case enough appeared to induce the Court to 
presume that such a judgment had been rendered. But it may not be material to 
the main question of lien, whether there were such a judgment formally 
rendered: for the levying of the attachment created a lien, and this lien is 
not waived by suing out the fieri facias. This execution commands the Sheriff 
to levy the debt out of the Defendant's property, that is, such property as is 
subject to the debt; which is different in different executions. If it be an 
execution regularly continued from term to term, it authorizes a seizure of 
property conveyed by Defendant bona fide at any time since the teste of the 
first fieri facias, although prior to the teste of the execution under which 
it is seized: for as to that fi. fa., it is the Defendant's property. So also 
as to a fraudulent conveyance. In the present case, the property being 
subjected to the payment of this debt, the purchaser is permitted to shew that 
his title relates back beyond the teste of the fi. fa. or the rendition of the 
judgment. The recital of the judgment in the fi. fa. is sufficient to identify 
it; a more full recital could only do the same.

This is likened to the case of a fi. fa, where there has been a former levy, 
which, it is said, discharges that levy. A levy under a fi. fa. is a discharge 
of the debt, at least until the property is sold and its insufficiency 
ascertained, or the levy waived and the property actually restored to the 
Defendant. When the Plaintiff, therefore, sues out a fi. fa. after having 
caused a levy to be made, as that act could not be done without waiving the 
levy, and thereby discharging the lien, he is concluded from alleging that the 
levy continues, his act being in consistent with it. Attaching property does 
not satisfy the debt; it is to secure its payment when recovered; and the 
property cannot be sold and applied to its discharge without a fi. fa. or some 
other process. But a Sheriff may sell without a Venditioni exponas: One 
seizure is to secure, the other to satisfy. The first requires the further aid 
of the Court to effectuate the object of seizure, which object being the 
raising of the money for the Plaintiff, the process which issues to effectuate 
it can only suspend during its operation, the lien created by the first 
seizure, on a presumption that the debt will be raised by this process. But 
the lien is restored when it appears that the debt was not so raised.

If there were no judgment of condemnation, it may possibly render the final 
judgment erroneous: but until reversed, it has all the effects of the most 
regular judgment. A reversal would only give a right to the money lost, not to 
the land sold to raise, it - But a judgment of condemnation is nothing more 
than the Plaintiff's adopting the property of the Defendant for his person, 
and thereby excusing his appearance. The after judgment pre-supposes this to 
have been done.

Hall, Judge: In this case the attachment created a lien on the land; and had 
that been continued by the Defendant's proceeding thereon; obtaining a 
judgment of condemnation of the land and then final judgment, issuing 
exception, and having the land sold by virtue thereof, his title would be 
good. But this has not been done. The only effect of issuing the attachment 
and having it levied, was to give the Court jurisdiction, whereby judgment 
might be obtained. In this case the levy was made upon the land, but no 
judgment was subsequently entered condemning the land to satisfy the final 
judgment which might be rendered. When this final judgment was rendered the 
lands levied on were thrown into the general mass of landed property belonging 
to the Defendant, by taking out an execution against his property generally as 
is done in ordinary cases. The lien created by the attachment was lost, and 
the title to the land vested in the lessor of the Plaintiff: the deed to him 
being executed long before either the judgment was obtained or an execution 
issued. Let the rule for a new trial be discharged.

Cited: Skinner v. Moore, 19 N. C. 149; Harbin v. Carson, 20 N. C. 524; Smith 
v. Spencer, 25 N. C. 264; Powell v. Baugham, 31 N. C. 155; McMillan v. 
Parsons, 52 N. C. 165; Perry v. Mendenhall, 57 N. C. 160; May v. Getty, 140 N. 
C. 317.


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