#### DEN ON DEMISE OF THOMAS MORISEY *vs.*THOMAS HILL.

The lien of a *fieri facias*upon the equitable interest of a debtor commences only from the time of its issuing, and not from its *teste.*

The cases of *Henderson*v. *Holce,*1 Dev. & Bat. Eq. 119, and *Hall v. Harris*3 Ire. Eq. 2S9, cited and approved.

Appeal from the Superior Court of Law of Duplin County, at the Spring Term, 1848, his Honor Judge Dick presiding.

The lessor of the plaintiff claimed the premises as a purchaser of them as the lands of Harold Blackmore, under a judgment rendered against him and a *fieri facias**67bearing teste the 4th Monday of September, 1843. The execution was levied on the 20th of October, and the land was sold in March 1844, when the lessor of the plaintiff purchased and took the sheriff’s deed and then brought this action. The plaintiff further gave evidence, that Sarah A. Pasteur was seised in fee of the premises, and by her agent, Alexander Stanford, contracted to sell them in fee to Blackmore on the 27th of April, 1841; for the performance of which, Stanford executed his covenant to Blackmore, and that Blackmore immediately entered into possession, and afterwards paid the purchase money. The plaintiff' further proved, that in October, 1843, Blackmore contracted with Hill for the sale of the prf mises to him in discharge of a debt which he owed Hill, and assigned to Hill Stanford’s covenant, but dated the assignment as of the 1st of July, 1843, in order that it might appear to have been made before the judgment recovered against Blackmore ; and that thereupon Black, more went out and Hill went into possession of the premises.

Upon the foregoing case the defendant’s counsel prayed the Court to instruct the jury, that the plaintiff had no title and could not recover. But the court refused so to do ; and instructed the jury, if they found that Hill went into possession under Blackmore, that then the plaintiff was entitled to recover. For, that it would only be necessary for the plaintiff to show the judgment and execution, sheriff’s sale and conveyance to the lessor of the plaintiff, to enable him to recover against Blackmore, were he in possession; and that the same was sufficient to entitle him to recover from any person who went into pessession under Blackmore. The jury found for the plaintiff, and the defendant appealed from the judgment.

*W. Winslow,*for the plaintiff

*W. H. Haywood,*and *W. A. Wright*for the defendant.

*68Ruffin, C. J.

The instruction would have been correct, ifBlackmore had been in possession at the time of the sale and the defendant had afterwards entered under him; for the privy in estate is bound by the estoppels, which affect the person under whom be derives the estate. So, too, it would be, if Hill went in after the day to which the execution related ; for a sale does not affect the lien of the execution, and the purchaser holds subject to it as his vendor did. But this case is not of either of those kinds. Blacltmore was out, and Hill in possession at the time of sale. Then, as to the relation of the execution, the case is, that it bore teste as of September Term of the Court, but the plaintiff did not shew the day it was sued out but only that it was levied on the *30th*of October, and that the defendant purchased in October, but whether before or after the 20th of October, the plaintiff did not establish. That being so, it was erroneous to hold, that the plaintiff was entitled absolutely to recover. For Blackmore’s interest in the premises, being a trust, though liable to be sold under execution, *Henderson*v. *Hoke,*1 Dev. & Bat. Eq. 119, was not, like a legal estate, bound from the teste of the execution, but only from the time of execution served, under the Act of 1812. *Hall*v. *Harris,*3 Ire. Eq. 289. It was incumbent on the plaintiff, relying on the lien of the *fieri facias,*to show, that it overreached the day of the defendant’s purchase — that is, supposing that purchase not to be fraudulent, as was assumed to be the fact in the instructions. For, no doubt the defendant is at liberty to insist, that the debtor’s interest was not liable to the lien of the execution at the lime of his purchase. For example, that he purchased the legal estate before the teste of the execution, or before the delivery of a justice’s execution ; and so, in like manner, that the debtor had sold and transferred the trust before execution sued, and that the trustee was no longer seised in trust for him, but for his assignee. This *69was laid down in *Hall*v. *Harris.*But, in truth, the plaintiff here relieved the defendant from proving the nature of Blackmore’s interest by giving the proof himself. The case was, therefore, but the common one, in which both parties claim under the same person, and, for that reason, neither can deny the title of that person, and the question is simply, which of them derived the better title from their common vendor.

The defendant’s purchase, certainly, operates only from the day it was in fact made. If it shall turn out, that the execution had then been issued, there is an end of the question, and the plaintiff must recover by force, simply, of its lien. But if the purchase was prior, the plaintiff can only recover by shewing, that it was not for the payment of a just debt or other valuable consideration, or otherwise not *bona fide,*but fraudulent.

Per CuRiam. Judgment reversed and *venire de novo.*