#### JAMES W. HARDING *vs.*HENRY SPIVEY.

*A fieri facias*binds property from its *teste*and this lien is continued if rega-lar *alias*writs of *fi. fa.*are issued.

Therefore where a *fieri facias*issued against one who was a joint owner of ■slaves with others, and afterwards,-upon the petition of all the joint owners, the slaves were directed by a Court of competent jurisdiction to be sold for a division and under that order were sold, the lien of the sheriff, acting under the original and *alias fi. fa’s,*was not divested, but he had a right still to sell the undivided interest of the defendant in his executions,

it never was meant, by the Acts of our Legislature, in directing the mode of proceeding for the partition of slaves, to interfere with the just rights of ipersons, not parties to the.groeeeding for partition, whether arising upon a -claim ofproperty by adverse title, or upon the lien of a creditor’s execution.

The cases of *Brassfield*v. 'Whitaker, 4 Hawks. 309, *Arrington*v. *Sledge., 2*Dev. 359, *Yarborough*v. *State Bank, 2*Dev. 23, *Stamps*v. *Irvine,*2 Hawks. 232, *Finley*v. *Lea,*4 Dev. So Bat. 169, *Green*v. *Johnson,*2 Hawks. 309, *Palmer*v. *Clark, 2*Dev. 354, *Ricks*v. *Blount,*4 Dev.jl28, *Finley*v. *Smith, 2*Ire. 225, *Smith*v. *Brittain,*3 Ire. Eq. 347, *Ex parte Harding, 3*Ire. 320, and *Latham*v. *Wiswall, 2*Ire. Eq. 294, cited and approved.

Appeal from the Superior Court of Law of North ampton County at the Fall Term, 1847, his Honor Judge Battle presiding.

*64The action is trespass for taking and selling four negro slaves; and the defendant justified, as the Sheriff of Northampton County, under the execution hereinafter mentioned. On the trial the case was agreed to be as follows:

The plaintiff, one Ai’chelaus Tisdale, and other persons were tenants in common of the slaves; and at the County Court of Northampton, held on the first Monday of March, 1842, they filed their petition for partition, and to that end for a sale of the slaves; and the sale was decreed accordingly, and the present plaintiff appointed the Commissioner to make it. On the second of April next following, the slaves were sold by the plaintiff and bid off by one William Harding, at the request and as the agent of the plaintiff; and on the 15th of April, William Harding made a conveyance of them to the plaintiff. At the next term of the Court, held the first Monday of June, the plaintiff reported the sale to William Harding. On the 3d Monday of March, 1842, George Cooper obtained a judgment in the Superior Court of Nash County, against Archelaus Tisdale, and issued thereon a *fieri facias,*tested of that day and directed to the Sheriff of Northampton, which was, on the 17th of April, 1842, delivered to the defendant, then the Sheriff, and was returned *nulla bona. Alias*and *pluries*writs of *Fi. Fa.*regularly issued from term to term on the judgment, on all of which the sheriff returned *nulla bona,*until the last, and on it he seized the negroes in question, and sold the share of said Tisdale therein — the plaintiff forbidding him to do so, and claiming the negroes as his.

At June term, 1842, of the County Court, George Cooper applied to have the bonds for the purchase money deposited in Court, and for a order that the debt to him, due on his judgment, and the execution then in the sheriff’s hands, should be satisfied out of Tisdale’s share of the bonds, when collected. At the same term, the present plaintiff opposed the motion and claimed that *65share of the bonds under a purchase and assignment from Tisdale. At September term following, the sale was confirmed without objection; and at September term 1843, the County Court (after a decision upon appeal by the Supreme Court) ordered the money to be paid to the several tenants in common, and the share of Tisdale to the present plaintiff. After that, the sheriff made the sale, for which this action is brought.

The parties agreed, that, if upon this case, the Court should be of opinion for the plaintiff, judgment should be entered for f 190 35; and, if otherwise, then a nonsuit should be entered. The presiding Judge held, that the plaintiff was entitled to recover, and he had judgment accordingly ; and the defendant appealed.

No counsel for the plaintiff.

*B. F. Moore,*for the defendant.

RufpiN, C. J.

The case turns upon the operation of the original *fieri facias.*For, if that created a lien on this property, it was preserved by the alias writs, which regularly issued, and related to the teste of the first writ. *Brassfield*v. *Whitaker,*4 Hawks. 309. *Arrington*v. *Sledge,*2 Dev. 359. This is so even against another execution. *Yarborough*v. *State Bank,*2 Dev. 23. That a *fieri facias*binds the property of the debtor, so as to avoid any alienation by him, after the teste, is, as a general rule, so undoubtedly true, as to need no authority to support it. The cases, however, of *Stamps*v. *Irwine,*2 Hawks, 232, and *Finley*v. *Lea,*4 Dev. & Bat. 169, maybe mentioned, in which the point was directly decided in ejectment and trover ; and there are many other cases both here, and in England, at common law. , It lies then on the plaintiff to shew an exception to the rule which will cover this case. No direct decision has been adduced to support such an exception ; nor, as it seems to us, any reasons offered, on which it can be established. *66The most plausible mode of putting the argument is, that both sales, that under the decree for partition, and that under the execution, are judicial sajes; and therefore that the former, having been first ordered and first made, must be held effectual. It is true that in some instances of sales under the process of the law, that, which is first made, will, for that reason, be upheld. For example, if property be taken under *one fieri facias,*and then another Qf prior teste come to the sheriff’s hands, it is- his duty to sell, and apply the money to that of the elder teste ; yet», if there had been a sale, under the execution of the younger teste, before the other was delivered, the sale would be good and the money applicable to the writ on. which it was raised. Nay, if the creditor in an execution of older teste deliver it to the sheriff, but by directions *to*him prevents it from being acted on, it will not hinder the sheriff from proceeding. Iq sell the debtor’s property under a junior execution, and applying the pro. ceeds to it. *Green*v. *Johnson, 2*Hawks. 309. *Palmer*v. *Clark,*2 Dev. 354. In those cases, however, it is to be remarked, that there are the meritorious claims, of. creditors on both sides. If one of them will not sue out his execution, or will not *sell on*it, another ought not to be hindered from doing so, but he shall be at liberty to sell, and a purchaser under his execution is armed with the rights of the creditor and gains a title, which the-Other creditor cannot defeat by his execution of older t.este. The reason of that is, that the law will not allow ijs process of execution to be obstructed, even by a like procession which the party will not act; and therefore it holds it to be a fraud in a creditor, who is entitled to a preferable execution, if he uses it to protect the debtor’s property from other, executions, instead of raising his own. debt, by a sale, and leaving the residue of the property accessible to others. *Palmer*v. *Clark. Ricks*v. *Blount,*4 Dev. 128. But this reasoning has no application to an alienation by the debtor himself: for that, on the other., *67band, is considered a fraud by the debtor, as tending to 'defeat the process of the law for the recovery of judgment debts ; and the purchaser is regarded in like man» ner, because, from necessity, the rule, as to him, is *caveat efnptor. Finley*v. *Smith,*2 Ired. *225.*That may work a hardship in cases of actual innocence in the purchaser. Hence, the law was altered in England by the statute of frauds. But, it may be remarked, that even changes only the period, to which the lien relates, from the teste to the delivery of the writ — still creating a lien before the seizure of the property, and therefore, still applying the toaxim *caveat emptor.*Bat we have no such statute, and the common law is still in force. Then, the enquiry is, whether a sale of this kind, though made under the authority of a decree, is, in respect of an execution, to be treated as if it were a sale under execution, or is to be regarded as an alienation by the party. It seems to the Court, that it cannot be likened to the sales under execu’tion, of which we have been speaking ; but that it partakes essentially of the latter character. There is, by the decree, no recovery of the property by one person from another, nor is there a sale for the benefit of a creditor ; whereby the property, or its value is taken in *invito.*But the whole proceeding is at the instance of the owner, and for his benefit in effecting partition. It is in reality, but a mode of sale, by the owner himself. *Smith*v. *Brittain,*§ Ired. Eq. 347. If the owners be all of age, they can sell of themselves ; and such a sale, though for the purpose of division, would not impair the lien of a *fieri facias.*The *Act, Rev. St.*ch. 85, sec. 18, 19, was only intended to meet the inconveniences of the disability or obstinacy of some of the tenants, and facilitate the Conveyance to a purchaser. It was never meant to in* terfere with the first rights of persons, not parties to the proceeding for partition, whether arising upon a claim of property by adverse title, or upon the lien of a creditor’s execution. For the decree for the sale, does not profess? *68in itself, to divest the title, out of the parties, but simply to order the sale of the thing, as their property. Nor does it profess to guarantee the title ; but, in the words of the Act, the sale is only to pass *“*such title, interest, and estate in the negro or chattel sold, as the joint tenants, or tenants in common had.” and, of course, under the liens or incumbrances, and in the plight in which they had it. It would be very mischievous, if an owner of property, belonging to more than one, should be declared able to exempt his share, from execution and immediate sale, by exhibiting a petition for partition, and procuring a decree for a sale, for that purpose. It would open a wide door .for frauds on executions. On the other hand, but little hardship is imposed on the purchaser, by treating this as the party’s own alienation, in law, as it substantially is, in point of fact. The contract is not conclusive until it be reported and confirmed by the Court, for the want of an objection, or of a sufficient objection to it. This gives the purchaser, in almost every instance, the certain opportunity of knowing before the sale is finally closed, ■whether there is an execution, of a teste that would overreach his purchase ; and if there be, he may have the contract rescinded. This plaintiff, indeed, had knowledge of the execution, and acted with his eyes open. *But the*opinion does not depend on that circumstance, but solely on the lien of the *fieri facias.*As the plaintiff’s knowledge of the execution did not add to its force against him, so, on the other hand, the confirmation of the sale, with the knowledge, and without the opposition of Cooper, did not impair the efficacy of his writ. The Court has already decided, *ex parte Harding,*3 Ired. 320, that Cooper could not intervene in that proceeding; and therefore, he could not object to the confirmation. Moreover, if that were otherwise, the sheriff might still insist on the justification to himself, by virtue of the writs in his hands.

It is also, perhaps, proper to advert to the case of a decree for the sale of a lunatic estate; which it was held *69in *Latham*v. *Wiswall, 2*Ired. Eq. 294, would prevent a creditor from taking the property under an execution of a teste, subsequent to the date of the decree. It may be observed first, that there is a distinction between that case, and the present, in this: that there, it was found necessary to restrain the creditor by injunction, which implies that he had the right at law, to proceed on his execution. , But, the material difference is, that the jurisdiction of the Court of Equity is peculiar over the property of idiots and lunatics, and that it is the duty of the Court to dispose of it, or sell it as may be deemed the most advantageous for the support of the owner and his family, and the payment of his debts. The decree for sale, is therefore, in effect a proceeding *in rem*for the benefit of creditors, as well as of the helpless debtor ; and for both reasons the Chancellor is bound to sustain his decree, and the proceedings under it, against an attempt to render them ineffectual, and frustrate the administering of the effects under the directions of the Court.

Per Cotiam. Judgment reversed, and judgment of non-suit, according to the agreement.