When a sheriff had levied an execution on certain lands, and a venditioni exponas, together with a special writ of fi. fa. issued afterwards on the same judgment, and was levied by the sheriff on goods which, seven days prior to that time, he had seized by virtue of a fi. fa. issuing on a younger judgment, the court directed the proceeds of the sale to be paid in satisfaction of the fi. fa. which first came to hand, and was first levied.
HENDERSON, J.
When a sheriff has seized property under a fieri facias, (327) and before he has completed execution another feri facias comes to his hand with a prior lien or, to speak more properly, having the preferable right of satisfaction, he should satisfy the last-mentioned execution first. Without entering into a question as to the propriety of issuing this special writ of fieri facias (the value of the land levied on not (328) being returned by the sheriff, which appears to be the English practice) I must confess I am strongly disposed to support such a writ as an easy and convenient remedy. I think there did not come to the hands of the sheriff before he had completed the execution, that is, before he was compellable to return the writ and pay over the money, at which time the execution was certainly completed (though he might have completed it before the return by paying it over, if he thought proper), any fieri facias or other process which had a preferable right to satisfaction, the special writ of fieri facias being a mere blank and perfectly dead until life and activity were given to it by selling the lots levied on by virtue of the original, for by the very words of the special writ the sheriff could not seize one cent's worth of property until the balance was ascertained, which could not be done until the lots were sold. Whether an alias execution can be connected with the original execution when execution creditors are competing with each other, either as to its test or delivery, whether executions bind at the common law between persons of the above description, from their test or delivery, are questions of too much moment and difficulty to be decided on an ex parte argument in a case which does not require it.
I therefore think that the money should be paid to Allemong and Locke; the special fieri facias forming no objection thereto, as being perfectly inoperative until the sale of the lots which had been levied on.
Cited: Cannady v. Nuttall, 37 N.C. 268; Dunn v. Nichols, 63 N.C. 110; Motz v. Stowe, 83 N.C. 438; Worsley v. Bryan, 86 N.C. 345.
(329)