#### Joseph Brown, executor of M’Kearny *vs.*William H. Gilliland.

cabe ^

The defen-the purchaser ce^airi public aucti-buttf1"re were executi-he supposed *540bound slaves, he re-wUhC°the to compel cult TiCourt fon the Commission-°f ers report, on- the question whether coukl^be anade sociu-e) decreed, that the contract riecHnvfspe-eific execution, as the executions in mncunT'offi6 4?,jo, and had lost their binding efficacy. The Court of Appeals reversed the decree, on the ground, that the executions bound the property, and that a good title' could to\he *TMp\iv*■Phaser.

*539[Tried before Chancellor Desaussure, Charleston,

February, 1813.]

THE bill charges that the complainant Joseph Brown, made a sale at public auction of three, negroes belonging to the estate of his testator, on the 19th day of nary, 1813, by leave of the ordinary, and that the defendant Gilliland being the highest bidder, became the purchaser at five hundred dollars ; and the said negroes were put down to the debit of the said Gilliland, accord-*540to the custom of auctions. That the complainant offered to deliver the said negroes to the defendant and S've him a hill of sale for them, and requested him to perform his part of the contract relative to said negroes, i , i *w*" by paying the purchase money, which he has refused ^0, The bill prays for a specific performance of the agreement.

The defendant admits the sale of the three negroes as hy the complainant, and the- purchase by him at public auction for the sum of *$*500 *;*but he denies that he has refused to comply with the terms of the sale, and his readiness to receive the negroes, and a bill sale for them, and to pay the purchase money, provided he is made safe in doing so. But he insists that ° there are two executions amounting to g 494 64, against ^he estate of the said M’Kearny, which were lodged in t]ie sfierifFs office, and bind the said property : and de- , fendant submits that he would not be safe in paying his money TMless the same were applied to the satisfaction of those- executions, and that lie is not bound to pay his , , . ,, . , money till he is secured m tins *respect;*and that he is w*^rlS’ comply with the contract as soon as he can be made safe therein.

This case was submitted to the Court without argument. From which I conclude that the parties are satisfied under the authority of the decided cases, that at the sale of a personal chattel at public auction, the auctioneer, after knocking down the hammer is to be considered as agent for the buyer, and that his setting down the name and price, &c. is sufficient to satisfy the Statute of frauds. And there is no doubt that this is so settled by decisions as to personal chattel, that it would be very dangerous to shake that construction of the statute.

I am also left to conclude that the defendant will he well satisfied to accept the negroes and to comply with the terms of the sale, provided he can be made safe, without raising any question as to the authority and practice of the Court to enforce the specific performance pf agreements, respecting personal chattel. It rs the *541common course of the Court to decree the specific execution of contracts respecting real estates $ and it is equally the settled course of the Court to refuse to decree the specific execution of contracts, as to some kinds of personal chattels, particularly stock.. Some exc.ep-tions have been made as to some special kinds of personal chattel, under peculiar circumstances ; and I ain inclined to think that there are good reasons for including negro slaves, (which in some of the states are considered as real estate, or partaking of the realty,) among those chattel relative to which this Court might decróc a specific execution of contracts. I shall not therefore hesitate in this cause, especially where the defendant makes no objection on tlxat ground j but declares his readiness to comply with the contract.

The only objection made by the defendant to the complete execution of the contract in question, is as to the security of the title which the complainant can make him for the negroes purchased. He apprehends them to he bound by certain executions which are alleged to have a lien on them j and that unless the purchase money be applied to the satisfaction of those executions, he will mot be safe. The defendant undoubtedly has a right to a secure title before he is obliged to pay his money, as in cases of contracts for real estate, where it is usual tt> refer it to the master to enquire and report upon the v title of the seller. It is therefore ordered and decreed that it he referred to the master to enquire into and report as to the title of the seller of the negroes, and whether it be proper for the purchase money to be applied to the satisfaction of the executions which are supposed to bind the negroes, or to be paid to the executor for the general pin-poses of the estate. And that upon the coining in of the report siat.ng the manner in. which the defendant can be made secure, as to the title to the negroes, the contract shall be carried into effect In such way as by the order of the Court shall make the defendant saft%

*542The Commissioner to whom the case was referred, wade the following report :

K having been referred to the master to enquire *into*and report as to the title of the seller of the negroes, „ , ° and whether it be proper for the purchase money to be applied to the satisfaction of the executions which are supposed to bind the negroes or to be paid to the executors for the general purposes of the estate j and this case having been brought before me by consent of parties, and having been ably argued by counsel, I do in obedience to the above order report, that from the principles of the common law and a reasonable construction of the act of assembly of 1789, as well as the statute of frauds, it appears obvious that the property of the testator acquired subsequent to the lodging of the execution in this case is bound, because judgments and executions bind the estate or property of the defendant from the time in which judgment shall be signed or execution lodged. The judgment being signed or execution lodged, they respectively remain as liens upon the estate or property of the defendant until satisfied. This point-being dismissed, it only remains to enquire what is the duty of the purchaser on the present occasion, and whether he would be safe in taking the title of the executor before the execution on judgment is satisfied? This question I believe has never been expressly decided in our Courts; but I feel less difficulty in forming an opinion upon it than on the first point, because from all the law which was cited in argument or to which I have been ableto refer, it seems clear that although a purchaser he not bound to see the application of the funds to the payment of the general debts of an estate, yet that it is his duty to see them applied to the payment of specific debts, such as debts referred to in a schedule, &c. 2 Fon-hlanque 148, 9. If then a purchaser be bound to notice debts which arc not of record and which have no specific lien on the estate or property, a fortiori would he be hound to notice judgments and executions which are debts of record, and by which the estate or property is specifically bound as in the present case. I am there? *543fóre of opinion that it would be unsafe and imprudent on the part of the purchaser on the present occasion to receive the title of the executor without first seeing the judgments and executions paid and satisfied.

(Signed,) Thomas Hunt, comm, in equity. Charleston, March 8,1814.

To this report the following exceptions were filed :

Exception 1. The executor having authority both by the common law and by an act of assembly of 1789, to dispose of the personal estate of the testator for the payment of debts, a purchaser from him ran have no better title ; the purchaser is not obliged to see that the executor applies the purchase money to the satisfaction of the debts. The executor’s duty is marked out, and if he violates it he is responsible to creditors and any persons interested.

2. By the said act of 1789, executions are enumerated among the debts which the executor is directed to pay off and settle. How can the executors pay off the said executions if the purchaser from him will not pay him the purchase money ? The act necessarily supposes that lie is to receive the money in his hands when he makes a sale of the personal property, for the payment of debts.

S. In this case the negroes which were sold by the complainant as executor, cannot he considered as hound by the executions lodged against the testator in his life time, because as it is admitted that the said executions were returned to May Court, 1811, mulla bona 5 and that they were never renewed, the negroes purchased by the testator subsequent to the return of the said executions nulla bona,* could not be subject to their binding efficacy. That cannot be bound which is not in existence. No injury is done here in this view to the creditors who lodged those executions, because the executor will do his duty, but does not wish to be watched in *544^ an^ cofnPe^ed *° ^ *bJ*a purchaser from him, mor*©-particularly as by renewing those executions in the life time of the deceased, they might have seized and sold those negroes. *0*

William Lance, comp. sol.

The cause came to a hearing before Judge Thomp*-SON, in March, 1814, who made the following decree :

The only point in this case is whether an execution-after it has been returned nulla bona, and dead to all intents and purposes, can have such a lien, on after acquired property, as to make it liable for the payment of the debt, for the recovery of which the execution issued,. 3 consider such an execution precisely as if it never liad existed, inasmuch as there were no effects on which it could have attached, and of course could have no binding efficacy. It differs widely from the case in Bay’s reports. There the binding quality was created from the time the execution was entered in the sheriff’s office, there being effects on which it attached. But in this case the execution was defunct, previous to the acquisition of the. property *;*and it would be in vain to say that a non-existing thing can possess existing powers. The exception to the master’s report must therefore be sustained ; and the defendant is ordered to pay over the amount of the purchase money to the executor, and the executor is ordered to make him title to the negroes..

(Signed,) W. Thompsok.

From this decree there was an appeal.

In this case it was admitted that William Gilliland, this defendant, purchased at public auction a negro wo? man and two children for 500 ; which negroes were sold as the property of M’Kearny, deceased, by his executor the compl’t Brown. This defendant to save himself harmless previous to proffering the purchase money examined the sheriff’s office in which he found executions had been lodged against M’Kearny for g 494, on which executions the returns of the sheriff were nulla *545bona. It was also admitted that these negroes had come the property of M’Kearny subsequent to the return of these executions. This defendant offered to pay the purchase money to the executor, provided the negroes were released from this lien $ which, however, was refused. He then offered to pay the money into the hands of the sheriff or any other person who might, be selected by the complainant and defendant, there to abide the order of the honoi’able court of equity. Thia was however considered unnecessary. The suit in equity was instituted for the guidance and safety of the parties, and was considered amicable. The defendant was mulcted with costs. In this case notice of an ap.-peal was given on two grounds :

Decree of the 0 Ai>

1, That ag-reeable to the law and the decisions that have taken place, (1 Bay, 292,) a writ of fi. fa. lodged in the sheriff’s office, binds property of the defendant in such case, beyond the period for which it is made x'eturnable, even though the return of such execution should be nulla bona. And also that the lien of such execution extends to personal property obtained by such defendant subsequent to the return of such execution.

2. That as the complainant refused to apply the purchase money which was tendered him, to the satisfaction of executions in the sheriff’s office, or to have such money paid into the sheriff’s hands, this defendant ought, not to be subject to the payment of costs consequent upon the payment of the complainant’s bill.

BeN. A. Markxey, def. sol.

*

 That is to say, the said executions were returned to May Court, 1811, and never renewed ; and the said negroes were purchased by the complainant’s testator in August, 1811,j

The defendant purchased certain negroes at public auction, which were sold by the complainant as the pro-pertyofhis testator, M’Kearny. There were at the time executions in the sheriff’s office against M’Kearny, which were unsatisfied, and on which there had been returns of nulla bona. ' The defendant insists that the purchase money for the negroes ought to be applied to the discharge of these executions, and the complainant Contends that the negroes are not bound by the execur *546tions, because they had been acquired by his testator afi *er ^!C returns aforesaid were made by the sheriff. The question then arising out of this case is(whether the lies! an execu^on *s confined to such goods only as belong to the debtor at the time when the writ is lodged, or whether it extends to goods acquired by him afterwards^ This question has never been settled by our Courts,* nor is there any light on the subject to be derived from precedents; it must therefore be decided upon general 'principles. Two cases were quoted on the part of the complainant, but neither of them determine the point before us. In the case from 10th Yin. tit. Ex. it is said, « If one recovers in debt lie shall not have execution but of those goods which the defendant had at the day of *the*execution made.” This only means (as is evident from the whole case) that an execution shall not have a retrospective lien, on any goods which the debtor may have disposed of before the execution was lodged. In 2 N. York T. R. 243, it was held that an execution could not be levied on property acquired by the debtor after the return day, because its operation was then at an end. But the Court proceeds to say that such property may be come at, by procuring a return of the execution and issuing an alias. This is saying nothing more than that the active quality only of the execution ceased at the return day, and that a renewal of it was necessary to give it operation as an authority to sell; the binding quality of an execution is not there determined on ; but whatever may be the construction of that or any other Court upon this point is immaterial here ; for the construction of the Constitutional Court upon it in the case of Snipes v. Osborn (which has become a rule of property on the subject) ought to govern in the present case. In that case it was determined that the binding effect of an execution continued, notwithstanding its active power was *547pot kept alive by renewals. The lien therefore of an execution on goods is under the authority of that decision of the same nature as that of a judgment with rc-spect to lands. What then is the lien of a judgment ? ° It is a continuing charge which operates until it is satis-tied upon all the lands of the debtor, whether belonging to him at the time of the judgment being entered up or acquired afterwards. This effect of a judgment has not heretofore been questioned, and is supported by the construction of the English law as far as it is applicable to the subject. Under a recognizance on the statute merchant, or in the nature of the statute staple, « If the conusor purchase lands after he has bound himself, such, lands are subject to execution.” 2 Bac. 698. This remedy against lands, which is more full than any other permitted by the law of England, is most analogous in principle to the remedy under our lien. The statute staple and the writ of extent (the execution proceeding from it) were originally devised for the security of merchants. So also a judgment and fi. fa. here against; lands which are derived from the stat. 5 Geo. 2, were gi-yen (as the preamble states) for the advancement of trade.

Upon principle then, a judgment, like a statute staple, should hind lands acquired by the debtor after the judgment has been entered up, and if so an execution, will have the same effect as to goods. But it was argued, how can the execution in the present case bind ne-groes which belonged to a stranger when the execution was lodged ? This would he a good objection if the lien of an execution was only a specific charge on the goods of a debtor. But if it is a general charge (which appears to me to be its true nature) then it may not only bind the existing property of the debtor, but may in construction of law, subject to its operation any other property which he may have afterwards. Every debt as soon as it is contracted, vests in the creditor a right to be paid out of any part of the debtor's estate f and while only a chose in action, it has an inchoate lien on all his property, whether acquired before or after the *548contract. When sued therefore, and the right is con-sumiwated by a judgment and execution, the general lien °f both becomes perfect, and should continue to charge' onIy ^ie existing property of the debtor, but also to attach on all his future acquisitions. If indeed an execution becomes dormant it must be revived by a scire facias before it can have an active operation; but its binding quality, like that of the judgment, continues until it is satisfied, or until length of time furnishes sufficient ground for presuming satisfaction. This principle 'is expressly recognised by the 26th clause of the executor’s act, which although it forbids any preference to creditors is in an equal degree, yet declares that the executions which have been first lodged in the sheriff’s office shall be first paid, without requiring any renewals, and without any regard to the time when the property of the debtor was acquired. The rule prescribed by this act is in conformity with the legal maxim « qui prior est tempore potior est jure,” and ought to be the general rule on the subject. I am of opinion therefore that the decree of the Circuit Court in this case must be reversed.

Mr. Grimke, for appellants,

Mr, Lance, for respondent^-

(Signed,) Thomas Waties.

We concur in the above decree for the reasons given therein.

(Signed,) Henry Wh. Desaussure^

Theodore Gaiieakd,

WhiIiIam JDobein James.

The costs in the case áre to be divided,

*

 It was made before the Constitutional Court about nine years ago, in the case of Parker v&yAdminjstrator of Levacher, but the Judges (all being present,,) were equally divided upon it. No opinions however were publicly delivered, as the case went off on another ground,'