#### RICHARD SMITH on demise of JOHN B. KELLY *vs.*HARBORD SPENCER.

December 1842.

If goods be taken- under a *fieri facias,*they vest in the Sheriff, and he may sell them after he has-returned the writ, and at any distance of time.

If he does not sell, the plaintiff can compel him by a *venditioni exponas,*and this he may sue out, in like manner, at any distance of time.

When land is levied on, the plaintiff may sue out a *venditioni exponas*at any subsequent time, before the debt is satisfied, without regard to the year and the day, and without resorting previously to a *scire facias.*

A sale under such a *venditioni exponas*will be good against the defendant in the execution, and those who claim under him; but the *laches*of the plaintiff in not enforcing a sale may entitle creditors having younger executions to be preferred.

This was the law before the passage of the Rev. St. c. PI, s. 114 — whether altered by that, quere 1

The cases of *Gilley*v *Dickerson,‘H*Hawks, 341. *Brasfield*v *Whitaker,*4 Hawks, 309. *Purcell*v *McFarland,*1 Ired. Rep. 34. *Clark*v *Helen,*Ibid, 421. *Bank of Cape Fear*v *Williamson,*2 Ired. Rep. 147. *Barden*v *McKinnie,*4 Hawks, 279. *Seawell v Bank of Cape Fear,*3 Dev. 279.— *Scott v Hill,*2 Mur. 143. *Amy alt*v *Backhouse,*3 Murp, 63. *Tarkinton*v *Alexander,*2 Dev. & Bat. 87. *Dawson*v *Shepherd, 4 Dev. 497. Oxley v Mizle,*3 Mur. 250. *Bell*v *Hill,*1 Hay. 72. *Ricks v Blount,*4 Dev. 128. *Palmen'*v *Clark,*2 Dev. 354; and *Bank of Newbern*v *Pullen,*4 Dev. 297, cited and approved.

Appeal from the Superior Court of Law of Moore County, at Fall Term, 1841, his Honor Judge Pearson presiding.

On the trial of this ejectment, it was admitted that the defendant was in possession. It appeared that one Laverty and Gantly obtained a judgment against one Munroe and others, for $480 70, at September Term, 1835, of Cumberland County Court, that a *fi. fa.*tested of that term issued against the defendants to the Sheriff of Moore county, returnable to December Term, and was returned by the Sher*257iff “ levied oil the land in dispute — too late to hand to sell.” Whereupon, a *venditioni exponas*issued to the Sheriff Moore, tested December Term, 1835, returnable to March Term, 1836, and was by him returned :■ “ Indulged by plaintiff’s attorney — costs satisfied and paid into office.” No other1 process issued until December Term, 1837, when a’ *vendi-tioni exponas*issued, tested of that term, and returnable to March Term, 1838, by virtue of which last *Ten. exp.*the sheriff sold the land on the 19th of February, 1838, to the lessor of the plaintiff, and made a regular deed to him duly proved and registered, and under this title the plaintiff claimed. It was also admitted that Munroe, whose land had- been thus sold, on the 27th of May, 1837, conveyed the land to one Dowd in trust, to secure certain of his creditors, and that Dowd, on the 10th of February, 1838, sold and conveyed the land to the defendant, who claimed title accordingly. It was also admitted, that at December Term, 1839, the County Court of Cumberland made the following order, viz: “ Laverty and Gantly *v*Munroe and others. It appearing to the satisfaction of the court, by the affidavit of John Wins-low, Esquire, Attorney for Laverty and Gantly, that the judgment in this case rendered at September Term, 1835, was not satisfied at the time of the sale of certain property levied on as the property of one of the defendants, under an execution returnable to December Term, 1835, and sold under a *venditioni exponas*issued from December Term, 1837, returnable to March Term, 1838. And it further appearing to the court, that executions have not regularly issued upon said judgment from March Term, 1836, to December Term, 1837: It is therefore considered by the court, that a *venditioni exponas*issue *nunc pro time,*from March Term, 1836, to June Term, 1836, from June Term, 1836, to September Term, 1836, from September Term, 3 836, to December Term, 1836, from December Term, 1836, to March Term, 1837, from March Term, 1837, to June Term, 1837, from June Term, 1837, to September Term, 3837, and from September Term, 1837, to December Term, 1837 which writs of *venditioni exponas*were filled up under the *258seal of the court by the cleric, and filed among the records of the said suit.

The only question raised was, whether the title of the lessor of the plaintiff under the sheriff’s deed, or the title of r *7*the defendant under the deed of Dowd, was the better title.

The court intimated the opinion that Laverty and Gantly, the plaintiffs in the judgment, had lost their lien by not continuing their executions regularly from March Term, 1836, to December, 1837 — that after March Term, 1836, the plaintiffs had abandoned their lien, so as to give the defendant, Munroe, the right to sell — and he having sold or conveyed for valuable consideration to Dowd, the title was out of him and was not subject to the *venditioni exponas,*from December, 1837, to March, 1838, under which the lessor of the plaintiff claimed — that, supposing the County Court had the power to order *venditioni exponas's*to issue *nunc pro tunc,*the effect of this could only be to make the proceedings regular so as to protect the purchaser under the last *venditioni exponas*against the defendant in the execution, but not against the present defendant.- who had before that by the deed from Dowd to him, and from Munroe to Dowd, acquired- vested rights, which rights -could not be affected by any such order of the County Court, or by any thing done by the clerk- in pursuance thereof. In submission to this opinion, the'plaintiff suffered a non-suit, and appealed to the Supreme Court.

*Badger Mendenhall*for the plaintiff.

*Winston Strange*for the defendant.

Ruffin, C. J.

Supposing the lien created by the levy of the *fieri facias,*to have been once lost, the court would be reluctant to-hold, that it was revived by the order made in December,-1839, and1 the proceedings under it, to the prejudice of a title acquired by the defendant at a time when the lien was extinct or dormant. It must be admitted that it seems to be clearly settled in England, that the statute, West. *2,*c. 45, only requires a *scire facias*to revive a judgment *259when no execution is sued within a year and day ; and that, if an execution be sued within that period, and be and filed, another execution may be sued at any distance of time without a *scire facias,*by entering continuances from the first to the last writ. Indeed, it was held, with respect to the process of execution against land, that the creditor may, after a year and a day, enter an award of an *elegit*on the roll, as of the term of the judgment, and then continue the same down by *vicecomes non misit breve,*and sue out his *elegit*at any time without a *scire facias. Cook*v *Bathurst,*2 Show. 235. Carth. 283. Probably the practice of allowing the entry of continuances began with the *elegit,*given by stat. West. 2, c. 18, inasmuch as it could do no prejudice to third persons, under any circumstances. For, by the construction of the statute, the judgment bound the lands the debtor had on the day of the judgment rendered, or at any time afterwards; and this lien continued until satisfaction against the debtor, his alienees and junior judgment creditors. If the judgment became dormant, and was revived by *scire facias,*this latter judgment was only *quod exe-cutionem habeat,*by the express words of the statute; so that the *elegit,*then issued, ran in the same terms it would if the judgment had not become dormant, and commanded the sheriff to deliver to the plaintiff one half of all the land the defendant had on the day of the original judgment or at any time afterwards. It consequently rode over any intermediate alienation. Hard as the case may be, it follows inevitably, from the principle declared by the statute, that the judgment binds the land ; and it charges every person with notice of the judgment. The allowing the continuances to be entered on the roll had the effect of making the record appear regular, and, it would seem, that it had no other object. No doubt, upon reasonable ground shewn, as that the debt had been satisfied or released, the court would not allow the continuances to stand, but would put the plaintiff to his *scire facias,*so as to let in the defendant to plead. Except in a case of that kind the *scire facias*answered no useful purpose; since as against the land the execution ran precisely as it would, if an *elegit*had been in the sheriff’s hands *260<^lu'n§' ^ie tbue from the judgment rendered. And such is the law of England to this day ; for the stat. 29, Car. 2, c. 3, s. 16, extends only to writs of execution against the goods of the party, as to which they bind only from the delivery to the sheriff. It was easy, however, after this last statute, to transfer to executions against goods the rule, under which continuances of an *elegit*had been permitted ; for this fiction also could do no harm, since the writ of *fieri facias*had no relation, but bound only while it was in the sheriff’s hands ; that is to say, provided it was not levied. Hence, if there was no suggestion of satisfaction, the *scire facias*in this case also was required by no purpose of justice, and the plaintiff was allowed to make his *fieri*facias, sued out after a long interval, orderly and regular on the record by continuances on the roll after one had been issued and returned. For it affected only the parties to the record, was a convenience to the plaintiff, did no injustice to the defendant, and saved expense to both.

Far different may be the consequences of such a course in our law. Here the common law is still in force, by which *the fieri facias*binds from its *teste;*and the unity of an original *fieri facias*and an *alias*and *yluries*regularly issued is, for the purposes *of the*lien created by the first, too firmly established to be shaken. *Gilly*v Dickerson, 2 Hawks 341. *Brasfield*v *Whitaker,*4 Hawks 309. To permit a plaintiff, after a return of a *nulla bona*on *a fieri*facias, to intermit his *alias*for a term, and then sue it out and connect it with the former by entering an intermediate one on the roll, so as to set up a lien against purchasers and creditors, which would not otherwise exist, but had been lost by the laches of the plaintiff, would be grievously unjust. It cannot be a matter of corase here, as ir. England, for the plaintiff to file his first writ, continue it on the rolls, and at a remote period take out another as a pluries ; because in England he thereby defeats no creditor or purchaser from the defendant, while here, by the relation, he may do both. There has been no such practice here, and it would be mischievous to introduce it. If such a thing can be done here, *261it can, at all events, be done only by special leave of the court. Here there was an order allowing writs to be put file, so as to connect that finally acted on with that on which execution was begun. But the Superior Court held, notwithstanding, that a right had in the meanwhile become vested in the defendant, which could not be thus divested. Upon the correctness of that position the argument at the bar turned.

It was said for the defendant, that it was against first principles that third persons should be affected by fictions in proceedings, to which they are not parties, and that no court has power to make an order thus to operate ; and, in the next place, that, in re-enacting the stat. 18, Ed. 1, c. 45, an important alteration has been introduced by the Legislature, Rev. St. c. 31, s. 114, by using the negative words “ no execution shall issue after a year and a day from the rendition of such judgmentwith a proviso, that when an execution hath been issued within a year and a day, another may be issued within a year and a day from the issuing of the last execution — whencé it was deduced, that it would ■directly contradict the statute to dispense with *a. scire facias*in any case, where more than a year and a day had elapsed since the last execution. Upon the last point we refrain from expressing an opinion, as it does not arise in the case ; for the act of 1S36 went into operation the 1st day of January, 183S, and the writ, under which the plaintiff claims, was issued in December, 1837. Upon the former question, it was, on the other hand, insisted for the plaintiff, that this was but the exercise of the power of amendment, and that, ¡especially under the liberal enactments in our statutes, it is possessed by all courts, inferior as well as superior in their discretion, and not subject to revision: and that, in truth, the order ought not to be set forth in the record ; but that the record itself is amended, so as to read as if the matter, embraced in the order of amendment, had been originally Inserted in it; and that, hence, it cannot be judicially seen that the new matter is new, but it must be deemed that the executions were in fact issued, as upon the face of the record they now appear to have been.

*262The court has no hesitation in stating, that after giving to the question much attention, we should feel much embarrassed in coming to a decision, were this the case of a *fieri facias*not levied, and of *alias*and *pluries*writs of *fieri fa-cias*founded on the first. We do not decide it, because we think the case before us essentially different from that, supposed, inasmuch as here there was a levy followed by writs of *venditioni*exponas; though that difference does not seem to have been adverted to on the trial. We can, however, say this much explicitly; that upon the general principle that no person should be affected by *res inter alios ac-*ta, on which he could not be heard, we should incline strongly to the opinion of his Honor, unless we should find ourselves compelled by imperative rules of law to hold the contrary. It may be that one court cannot, for any purpose, look into the record of another court as it now reads, so as to see how it was made to .read thus; and, if so, we should of course yield to the rule of law. If such should be the law — as it possibly is — it furnishes a cogent reason why courts should be extremely canti'ous in allowing amendments, or, rather, statements of facts and proceedings, absolutely fictitious, to be inserted in the record, when the interests of persons not before the court may be injuriously affected, The propriety of perfecting process actually issued, as by putting a seal to a writ, or making an execution conform to the judgment in the amount of the debt and costs, and the like, is not denied, but has been declared by this court. *Purcell v McFarland,*1 Ired. 34. *Clark v Hellen.*Ibid 421. But an amendment of a *fieri facias,*by inserting words to alter it from an original to an *alias,*was refused, when it would prejudice the right of a third party. *Bank of Cape Fear v Williamson,*2 Ired. Rep. 147. Yet, it the power be admitted, we think we may safely advise magistrates, who sit in inferior courts, never, under the pre-tence of amendment, to allow a mere fiction, a false statement, to be inserted in the record. It is very proper to make amendments according to the truth;-but the purposes of justice can hardly be promoted by making the record speak *263untruly, especially when the object is thereby to affect a stranger to it.

The occasion, as it has seemed to us, has called for the foregoing observations, although, as the court thinks, in this case no prejudice was done to the defendant in the judgment, or to the present defendant by the order and continuances ; because we hold that the lien created by the levy of the *fieri facias*was not lost. For this, opinion, it is now proper to state the grounds.

The case has heretofore been considered, as if the first *fieri facis*had not been levied, and the subsequent executions had been *alias*and *pluries*writs of the same kind ; in which case we have stated we should not be inclined to adopt what appears to be the practice in England. But we think a writ of *fieri facias*levied on land and returned, and writs of *venditioni exponas*founded thereon, make a case essentially differing from the former: and that the levy creates a specific lien, which binds the lands, as against the defendant and those claiming under him, to many purposes, as it would be bound by the judgment under the stat. 13, Ed. 1, c. 18. This seems to result from the necessary effect of a levy, and the nature of a writ of *venditioni exponas.*

If goods be taken under a *fieri*/acias, they vest in the sheriff, and he may sell them after he has returned the writ, and, indeed, at any distance of time. If he does not sell, the plaintiff can compel him by a *venditioni exponas*/ and this he also can necessarily do at any distance of time; for the execution was begun by the levy, and the' goods are alt-the time in *custodia legis,*and the execution i-n progress.^. The plaintiff may have his remedy against the sheriff for' not selling. But there cau be no doubt, that he can also compel him to sell by a *venditioni exponas*alrd *distringas;*and as long as the sheriff can have the power to sell, the plaintiff can have the power to enforce him; To the purpose of compelling the officer to sell, if cannot' be requisite to revive the judgment by *scire facias*against the defendant. We hold, that, in like manner, when land is levied' orty a *venditioni exponas*for the sale of it may be taken Oúf, a4-*264'though á term intervene after the return of the *levy.*It is true that land does not, like goods, vest in the sheriff; and for that reason that officer cannot sell land without a *vendi-tioni exponas. Barden v McKinnie,*4 Hawks, 279. *Seawell*v *Bank of Cape Fear,*3 Dev. *279.*Yet if the levy have not the effect of appropriating the land to the satisfaction of the debt, it is difficult to conceive what effect it has at all. We cannot attribute to it a less operation. It is a declaration of record by the sheriff that the particular land is' attached ; and it would seem, that it should devote that land by sale to the debt, as much as an award of an *clcgit*binds all the land of the debtor under the stat. of West, 2, and for similar reasons. Now, when that writ is sued out, no matter when, it takes, by its words, all the land the defendant had at the date of the judgment. So the writ of *vendiiioni ex-ponas*relates to the levy, and commands the sheriff, in terms, to sell the land therein described, as having been made subject thereto by the previous levy. Is it an answer to the writ, that it did not emanate from the term to which the levy was returned ? Can the sheriff return to if, that the lauds do not now belong to the defendant, but to another person, to whom the defendant sold them'? Certainly not. Whenever the levy may have been made, it is the sheriff’s duty to sell the land according to the exigence of the writ. It is no injury, either, to the ■ defendant to make the sale under the writ of *venditioni exponas.*Ought he to object, that the writ should have issued three or six months sooner? It is true, if the levy is discharged by an act of the plaintiff, the lien is gone, and there is nothing on which to found the *vendiiioni exponas.*Thus the issuing a second *fieri facias*discharges a previous levy. *Scott*v *Hill, 2*Murph. 143.—*Amyatt*v *Backhouse,*3 Murph. 63. But it is a different question, whether, as against the defendant, the levy is vacated or abandoned by the ovnission merely to sue out a *ven-ditioni exponas*from the first term and keep it up until a sale. Why should it be? What good purpose is answered by it? As to chattels, it is admitted the writ of *venditioni*maybe sued at any time. And there seems no good reason why it should be otherwise in regard to land. We know in *265practice, that orders of sale in thousands of instances have been issued to sell land levied on under a justice’s judgment, although no execution issued from the first term, or one or *°*. more terms, had been subsequently pretermifted. Theomtssion is not like the positive act of issuing a general execution ; for that must be deemed a disclaimer of the lien on the particular land. We know of no decision, that the levy becomes inoperative, unless followed up by process in hot pursuit. Indeed, the question is very much without direct authority, except in our own practice in this State, and by analogy to the effect of a levy on goods. In England, and in some of our sister States, the *fieri facias*does not run against land, and, consequently, there is no *venditioni expo-nas*to sell it. In others of the States the statute of George 2d is construed not to prevent the judgment itself from binding the land, as it did under the stat. West. 2, although the execution be by *fieri facias*instead of an *elegit,*and, of course, the elder judgment is entitled to the first satisfaction in all cases. With us, however, the judgment does not itself bind; but a levy of the *fieri facias*does, so as to authorize the writ of *venditioni exponas*to sell the land levied on, as a thing *in custodia legis*for the purpose of satisfying that debt. In analogy to the case of goods, the levy on land must have the effect of placing the land in the custody of the law. In *Tarkinton*v Alexander, 2 Dev. & Bat. 87 the court said, “ the levy operates as a lien, *which sets apart the land levied on for the satisfaction of the creditor's judgment.'”*After being thus set apart, what is there, we would enquire, to take it out of the custody of the law, and set it at large again before the debt be paid *1*We are speaking of the effect of the levy, as against the defendant himself. We can see many reasons why the levy of a *fieri fa-cias*should not divest the freehold, and why that can be done only by a sale and a sheriff’s deed. But we can see no reason, why the defendant should claim to have the levy discharged, so as to prevent any action on it, unless that action be immediate and continued. He is not injured by its being enforced at any distance of time, and as to him the *266law may justly preserve the lien until satisfaction of the debt be had.

A purchaser from the defendant can be in no better situa-*’011 ven<^01'- That is the general condition of every person claiming under another, unless in particular instances of persons favored and protected by statutes or in equity. It is the direct operation of a lien, created by execution, to prevent the defendant from defeating the execution hyphenating, and to give to the process the same effect against the property in the hands of the purchaser as in those of the debtor himself.

We think, then, that the writ of *venditioni exponas*issued from December, 1837, was an authority to sell this land. At most, it was irregular only and not void. The sheriff is bound to obey a writ of execution issued after the year and day. *Dawson*v Shepherd, 4 Dev. 497. It is only voidable at the instance of the party against whom it issues. *Oxley*v *Mizle,*3 Mur. 250. But, if the positions already laid down be correct, the court might properly refuse a motion from the defendant to set this writ aside for irregularity; or might properly allow the plaintiff to remove the appearance of irregularity by entering continuances. The reason is, that no harm is done to any person by allowing the writ to remain in force, and amending the record so as to make it appear regular. For if a *scire facias*had issued, it would have been to shew cause why execution should not issue, and the judgment would have been, *haheat execuiionem ;*upon which the question would immediately arise — what execution? The answer is, any execution that would suit the party^s case. He might either have an original *fierifa-cias,*or an *elegit*extending to one half of all the lands ; or, if he have a specific lien on particular goods or land, he must be entitled to the writ of *venditioni exponas*against those specific things. There seems to be no ground, on which he could be excluded from the latter writ more than the two former, unless the lien be entirely lost by the omission to enforce it for any one term — a point already considered. If a *veditioni exponas*can be sued at any time within a year and a day, it follows, that, after a *scire facias*to *267revive, the plaintiff may have the same writ after the year and day ; for he by the sc *ire facias*entitles himself to cution, as if the judgment had never become dormant. Consequently no injury has been done by dispensing with the *scire facias*in this case, and allowing the continuances to be entered ; for the debt was unpaid, and the defendant did not pretend that it had been satisfied, and on that ground move either to set aside the execution or to oppose the continuances on the roll.

The opinion of the court, then, is, that the lien of the execution levied was not lost by the omission to keep up the executions from term to term j and for that reason we think the judgment erroneous.

It will not be understood that this decision touches the rights of other creditors. They stand on a different footing from the defendant or his vendee. Purchasers from the party can see to their security by covenants. But the law does not warrant the title of property sold under execution ; and, therefore, for the purpose of enhancing the price as nearly to the value as possible, it makes its own sale an effectual title against persons having prior liens, who neglect to enforce them, until another has actually sold, though under a junior lien. Hence, when it was formerly thought that judgments *proprio vigore*bound land in this State, although a *fieri fa-cias*was issued, it was held, that, though the debtor could not alien the land, a sale by a *fieri facias*on a younger judgment, passed the title. *Bell*v *Hill,*1 Hay. 72. *Ricks*v *Blount,*4 Dev. 128. As between the'creditors, it is a fraud in one to hold up his execution until the other has sold, and then use it to avoid the sale. *Palmer*v *Clark, 2*Dev. 354. *Bank of Newbern*v *Pullen,*4 Dev. 297. But the law allows not such an immunity to a sale by the defendant in execution.

Per Curiam. Judgment reversed, and *venire da novo*awarded.