#### Howell Jones and others v. Charles Edmonds.

From Northampton.

Writs of fieri facias bearing teste of the same term, and put into the hands of the sheriff at tire same time, although issued upon judgments recovered at different terms, have no preference one over the other; the creditors stand in equality of right, and if tire property levied upon do not bring enough to satisfy all the writs, the creditors must be paid in proportion to their respective demands.

A Judgment creates no lien upon the lands of the debtor, where a fieri facias is sued out. The statute of Westminster 2d ch. 18, does not in express terms mate the lands liable, which the debtor had at the time of the judgment: It is by implication and judiciabConstruction, and by the election made by the Plaintiff to sue out the writ given- by the statute, that a judgment is a lien upon land.

The statute of Geo. 2d, ch. 7, had three objects, 1st, To malee land liable to and chargeable with all just debts. 2d, To make them assets for the satisfaction of debts in the same manner as real estates, by the law of England, are liable to debts due by bond or other specialty. 3d, To make them subject to the like remedies with personal estates : And the act of 1777, ch. 2, giving the fieri facias against “lands- and tenements,” as well as goods and chattels, is in conformity with this third object of the act of George 2nd.

■A judgment is still a lien upon a moiety of the lands, of which the debtor was seised at the time of its rendition, if the creditor sue out an elegit; but if he refuse to sue out a fieri facias, the lands are bound only as chattels.

After judgment at the instance of A. but before suing out execution, the debtor conveys his lands in trust to secure a debt which he owes to B. this conveyance gives to B. a preference, and hisidebtmustbe paid before A. shall have his judgment satisfied out of the land.

Samuel Nicholson and liulon Grizzard recovered judgments in Northampton County Court, against Charles Edmonds; and he being indebted to E. B. Freeman, conveyed to him in trust, a tract of land, to secure the debt j this conveyance was made after the recovery of the judgments aforesaid. He was then sued by other creditors, and judgments were recovered in Northampton County Coui't at December Term, 1817: And from that term executions issued, as well upon these latter judgments as upon *44the judgments of Nicholson and Grizzard. All these exe-cuti°ns were delivered to the Sheriff on the same day, and he made the following return thereon: to wit,

.... “ STATE OE NORTH-CAROIINA,

“ Northampton County,

“ The following executions came into my hands on the 9th day of De- “ cember, 1817: Samuel Nicholson v. Charles Edmonds for the sum of “ 700 dollars, with interest from the 14th September, 1816, and costs— “ Littleberry Mason v. Charles Edmonds, for78dollars,witliinterestfrom “ the 4th December, 1817, and costs — Collin W. Barnes ti. the same, for “ 88 dollars, with interest and costs — Howell Jones ■». the same for 329 “ dollars, with interest and costs — James Wood the same, for 106 dol- “ lars, with interest and costs — Hulon Grizzard «. the same, for 100 dollars, “ with interest and costs : All returnable to Northampton County Court, “ March Term, 1818. There being no goods and chattels to be found, a the said executions were levied tipOn a tract of land, whereon the said “ Edmonds resided; and after advertising the same for sale, 1 exposed the “ same to public sale on the 3d day of February, 1818, when Thomas “ Branch became the last and highest bidder at the sum of 1062 dollars: “ of which sum 148 dollars are claimed by E. B. Freeman, by virtue of a ■“ deed in trust, prior to all the judgments, except those of S. Nicholson “ and H. Grizzard. 1 pay into the clerk’s office the sum of 1018 dollars.”

Signed,

“ JOHN PEEBLES, Sh’ff.”

Whereupon a question arose, which, if any, of the creditors were entitled to a preference in having their judgments satisfied ? And if none were entitled to a preference, in what proportions the money was to be distributed among them ?

The case was taken by consent of parties to the Superior Court, and by that Court was ordered to be sent to the Supreme Court: And at this Term, judgment was given that the money should be distributed among the judgment-creditors in proportion to their respective demands, after the debt to E. B. Freeman was paid.

By the Court

The money, concerning the distribution of which the question in this case arises, was raised by the Sheriff upon several executions, all of which bore teste and were put into his hands at the same time. The *45claim of one creditor is founded upon a deed of trust, operating as a lien upon the land, and the sum secured hy it must consequently be first paid. With respect to the judgments, those of Nicholson anil Grizzard were prior in point of time, and these creditors claim a right to he paid in the next place, because the money was raised by the sale of land. The rights of the several parties cannot therefore-be adjusted, unless the Court meets and decides the question, Whether a judgment be a lien upon the lands of the debtor ?

It is very evident from the authorities, that lands were-not at common law, liable to execution at the suit of a subject, except on judgment against the heir on an action on the bond of his ancestor.* The statute of Westminster 2d, ch. 18, which first made them chargeable, gives the Plaintiff his election to go against the goods and profits ; or against the goods and a moiety of the lands of the Defendant : Which election has given name to the writ of JSlegit. The statute does not, in terms, make the land liable, which the Defendant had at the time of the judgment; but the writ of elegit, framed by the Court, and used in practice ever since the passing of the act, commands the Sheriff to cause to be delivered a moiety of the lands, of which the Defendant was seised.on the day of the judgment. It is by implication, therefore, and judicial construction, that a judgment is a lien upon land; and by the election made by the Plaintiff to sue out the writ given hy the state.

The statute of Geo. 2d, ch. 7, renders land in the then colonies, as well as chattels, liable to the payment of debts ,• and makes three provisions in the same clause : 1st, That lands shall be liable to and chargeable with all just debts. 2d, That they shall be assets for the satisfaction of debts, in the same manner as real estates, by. the law of England, are liable to debts due by bond or other specialty. 3d, That they shall be subject to the like remedies with perso-*46nai estates. By referring to the manner in which lands Hable to debts due by bond, and calling them assets, the statute ¡minted to the case of an heir sued upon the bond of his ancestor, in which bond the heir was bound.

In that case the judgment would be for the whole of the land descended, which the heir was seised of at the commencement of the suit.* As this was the only case where, at common law, the whole of the land could be taken in execution at the suit of a private person, it was probably inserted to make the contrast to the elegit, where only a moiety was liable. Making land subject to the like remedies with personal estate, placed it on a footing with personal estate in every case where those remedies arc resorted to : and the act of 1777, ch. 2. is in conformity with this exposition.

The conclusion appears to be, that a judgment may still operate as a lien upon a moiety of the lands of which the Defendant was seised at the time of its rendition, if the Plaintiff sue out or pray an elegit: But if he resort to the. Fieri Facias, the lands are only bound as chattels. All the creditors in this case, therefore, except E. B. Freeman, ■stand in equality of right, and are to be paid in proportion to their respective demand.

*

3 Rep. 12.

*

Dyer 373, b.-Plowd. 441. — 3 Rep. 12.