June, 1830.

#### James Irwin v. John Sloan,

From Mecklenburg.

Where a Justice of the Peace finds the plea of plene administravit in favor of the Defendant, and issues a /!. fa. which is levied on the land of which the debtor died seised, upon a return thereof to the County Court, and an award of a venditioni exponas oh a sci. fa. against the heir, the levy is mesne process in the new suit against the heir, and creates no lien upon the land.

But where the f.fa. is against a living debtor, the subsequent return is only a mode of placing the proceedings upon record, and the levy binds the land from the time it was made.

On several writs of scire fada against an heir, the creditor who first obtains judgment and execution, and proceeds thereon, is entitled to a priority.

The case of Lash v. Gibson (1 Mwp. 266) approved by Kueein, Judge.

Upon a rule nisi against the Defendant, the Sheriff of Mecklenburg, to show cause why an amercement nisi, for not returning an execution in favor of the Plaintiff, should not he made absolute, the following facts were stated for the opinion of the Court; and it was agreed, that if the Plaintiff was entitled to all the money in the hands of the Defendant, the rule was to he made absolute —if otherwise, it was to be discharged.

The Plaintiff had sued out a warrant against the administrator of oneMiller, who had pleaded plene administravit, which [ilea was by the Justice found lor the Defendant. An execution was issued by the Justice, which, in default of chattels, was levied on the lands which had descended to the heirs of Miller. A return thereof was made by the Constable to November term, 1826, of the County Court— writs of scire facias regularly issued to the heirs to show cause why tiie land should not be sold, and final judgments were obtained thereon at. tiie August term following, when the execution, upon which the amercement, nisi was obtained, came to tiie hands of the Defendant.

*350At February session, 1827, of the same Court, verdicts were obtained by other.creditors of Miller against his administrator, establishing the amount of their debts ; but in those cases, the issue of fully administered was also found for the Defendant.

Writs of scire facias also issued on these verdicts against the heirs oí Miller, and were regularly prosecuted to judgment, at the following May term — the term before the Plaintiff obtained his judgment against the heirs. On these judgments executions issued to the Defendant, under which the lands were sold.

His Honor Judge Daniei, holding that the lands were bound from the levy of the Plaintiff’s execution, so as to give, him á preference over the other executions, made the rule absolute, and the Defendant appealed.

No Counsel appeared for either party.

Ruffin, Judge.

'Considering the numerous tribunals from which executions emanate in this State, and the diversity of officers to whom they are directed, it is not surprising, that new questions respecting them should often arise, calculated to puzzle the bar and the bench. The present is one which is brought before, this Court, for the first time; but it does not seem to us to be so difficult, as it is novel or important. It is contended by the Plaintiff in this rule, and so decided by the Court below, that a fufa, issued by a Justice of tiie Peace against the administrator of Miller, and by the Constable levied on the land in the hands of the heir, on which, after sci.fa. from Court, a judgment was given against the land, is entitled to preference oyer anothei’ creditor, who gets his judgment in Court after.the levy by the Constable, and before the final judgment in Court in the suit founded on that levy. We should think so too, if the Justice’s execution could be regarded as process of execution against, the land. In Lash v. Gibson (1 Murphey *351¿66) it was held, that the execution of a Justice first levied, is to be first satisfied, as against other executions of the same character, and also as against executions issuing from Court after such levy. There the proceed-jugs were altogether between living persons, and the Justice’s execution expressly runs against lands and tenements, in default of chattels. There is no new judgment rendered in Court; it is not a Us pendens, in which the party can make defence; and all the Court does is to see whether the'papers be regular, and if so, award a venditioni exponas. The only purpose of this return is to put all the proceedings upon record, on which a change of the title to land takes place. (Jld of 1794, Rev. e. 414, s. 19.) Butin the present case, the Justice’s execution is not directed against the land, but only against the goods of the intestate, in the hands of the administrator. If the latter indeed deny that he hath goods, the Constable is directed to levy on the lands, and return it to Court. But this is not by way of execution againt the land, or against the heir. After such return, a new process issues to the heir, and he is let into a full defence, just as much as he is, when the judgment has been in Court, .•arid no lety is made on the land. It is therefore not so much process against the land, as it is a proceeding to make a record, on which process shall issue to the heir, with the view of getting a judgment against him. How can that be regarded as creating a lien on the land, which precedes the judgment against the heir ? In attachment it is so, because the party does not personally appear, and the property stands in his stead, without further personal process. But in the case before us, the Justice’s execution, levy, return and sci.fa. issued thereupon are parts of mesne process, and not of execution, against the heir. It is like tiie case of two writs of sci. fa. against the heir, founded on judgments in Court They create a lien from their issuing, as against the heir himself, and purchasers from him, hut not as against *352each other. That creditor, who first gets his final judg-men^ an¿j execijtion against the lands and proceeds tiiere-on, will be first satisfied. So it is here. We are obliged |0 consider the whole as mesne process, as far as the heir is concerned. In each, a sci. fa. issues to the heir, and a new judgment, after the same defence, is given in each case. The levy of the execution does not create a specific lien on a particular part of the lands ; for upon' the return of a levy on a particular tract in the hands of one heir or one devisee, the sd. fa. is not to the heir or the devisee who owns the part levied on, but. to the heirs apd devisees generally; and the judgment and execution are not against that land in particular, but against the lands descended generally. We therefore think, that the executions issued from May term are to be first satisfied; consequently the judgment below is reversed.

Per Curiam. — Let the judgment of the Court below be reversed.