#### Delia Haywood *v.*Joel Sledge.

Where personal property was levied upon by the sheriff, but not ta. ken into Ms possession, and afterwards an action of detinue was commenced for the same property, against the original defendant, pending which it was sold by the sheriff, held, that the possession of the sheriff related to the levy, and therefore did not commence *pen-dente lite.*

This was a scire eacias against the defendant, which set forth that the plaintiff had. recovered certain negro slaves in an action of *detinue*against one *Mark Cooke,*and that pending the action, the said slaves had come into the possession of the defendant. On the fall circuit of 1831, at Wake, before his Honor Judge Swain, the following case agreed was submitted for the decision of the court.

The plaintiff sued out a writ in *detinue*on the 8th of August, 1825, against *Mark Cooke,*to recover certain *339negro slaves. The writ was returned to August term, 1825, of Wake County Court, and at August term 1828, the plaintiff obtained a verdict and judgment. At August term’, 1824, of the same County Court, the defendant recovered judgment in several actions of debt against *Cooke.*Executions tested of-November term, 1.824, issued upon these judgments, and on the 16th of February 1825, were levied by the sheriff on the said slaves,-and the levy returned at February term of the same year. The slaves, by consent of the sheriff, remained in the possession of *Cooke,*on condition that they should be surrendered up whenever he required, and they had not been removed at the time the action of *detinue*was commenced. .On the 19th of September, 1825, under a *ven-ditioni exponas*issuing upon the.judgment against Cooke, the slaves were sold by the sheriff to the defendant, and delivered into his possession. ,

The case of *Falconer v. Jones, {ante 334,)*commented upon and approved by I-I-EKDEllSON-.

Upon these facts his Honor gave judgment for the defendant, arid the plaintiff appealed.

The case was submitted without argument by *Hogg,*for the plaintiff, and *Badger,*for the defendant.

HejtdersoN, Chief-Justice.

I feel it a duty to myself and the profession, to revise what was said in the case of *Falconer*v. *Jones (ante*334). Not that I am dissatisfied with the judgment pronounced in that case. ¿But it may be understood from what was then said, that it is a sufficient plea to the *scire facias,*for the defendant to show, that he *may*have rights, paramount to the plaintiff and defendant in the original action, and is therefore not concluded by the judgment. I am satisfied, that it is not sufficient to show that the defendant *may*have a paramount title to the plaintiff; but he must *allege, and therefore show*if required, that his title *is*paramount. In that case therefore, it was not sufficient for *Jones*to have alleged and shown, that lie'was a purchaser at an execution sale *pendente lite,*but he should have gone on and shown, that the title of the plaintiff was of that character, that although good against the defendant *Holloway,*yet it was not so as to the creditors of the defend*340ant’s intestate, in whose right the suit was defended. That as to those creditors it was fraudulent, or otherwise defective against *them ;*or rather that creditor, to whose rights he was substituted by his purchase at the sheriff’s sale ; as that confesses and avoids the recovery, and shows its want of obligation on him. But the decision in that case is sustained by the plea, that the judgment, endeavored to be enforced against the defendant, was *fraildulenttij*obtained. For it is to fair and *Iona fide*judgments, and not to fraudulent ones, that the right of their enforcement against purchasers *pendente lite*is given. For no obligation, either legal or moral, withholds one from setting up his vendor’s title, against him who has fraudulently combined with his vendor to weaken or destroy it, after he has conveyed the property to him. No principle of policy or convenience requires, that such judgment should conclude his rights. But the case before us does not depend on these principles. Here the defendant’s possession, or rather the sheriff’s, under whom he claims, commenced before the commencement of this suit. For *Cooke,*after the sheriff’s levy, became his bailee at will. He had no possession as against the sheriff; and therefore the defendant did not acquire the possession after suit brought. It is connected with the sheriff’s possession, which commenced by the levy *;*and *non constat,*that the defendant’s title did not ai'ise entirely after the levy. In that suit it was sufficient to show a title against the defendant.

-• *pendentetitenihil inmvelur,*is not ñ-audulentjudg-ments.

Per Curiam — Judgment aeeirmed.