Opinion
December Term, 1838.
Judgment — Execution — Case Agreed.
1. Judgments of a court of record, on whatever day of the term they may be rendered, in law relate to and are considered judgments of the first day of the term; and this rule applies although the judgments were confessed upon writs which were noted by the clerk to have been issued, and the service of which were acknowledged, on a day subsequent to the first day of the term; and executions issued upon such last-mentioned judgments will have priority over a deed in trust proved and registered on the second day of the same term.
2. The sheriff is protected by a writ of fieri facias, and is not bound to show any judgment. It is sufficient for his defense that he has acted in obedience to a mandate proceeding from a court of competent authority; and if he have a writ of execution bearing teste the first day of the term, he may by virtue thereof take away goods of the defendant in the hands of a person who had bona fide purchased them since the teste of the writ.
3. Where certain facts are agreed upon for the purpose of presenting a particular question to the court, the case is not open to an objection raising another question upon a particular fact not appearing in the statement.
4. A judgment by confession is valid without any previous process.
5. Where a testator died in term time before a judgment was signed: It was held, that it might be signed after, and execution taken out against his goods in the hands of his executor tested the first day of the term, for they relate to and are considered as a judgment and execution of the first day of the term, at which day the testator was alive.
THIS was an action of trover, brought by the plaintiff as trustee, against the defendant as sheriff of Caswell County, for selling certain property, and was submitted to his Honor Judge Pearson, at Caswell, on the last circuit, upon a case agreed. If his Honor should think that the plaintiff was entitled to recover, judgment was to be entered for him for $132, if not then the judgment was to be for the defendant.
W. A. Graham for the defendant.
Winston for the plaintiff.
It was admitted that the plaintiff held a deed of trust executed to him by one Crockett, conveying the property in trust to sell and pay the debts therein mentioned. The deed was executed on 9 May, 1833, and was proved and registered at 3 o'clock p.m. of the same day, being the Tuesday of Caswell Superior Court. It was further admitted (308) that the defendant, the sheriff of Caswell County, sold the property mentioned in the trust for $132, at the instance of one Finley and one Lea, two of Crockett's creditors, under execution tested the Monday of said term of said court, being 8 May, 1833, and that the executions were issued upon judgments confessed by Crockett on the Friday of the same term of said court, being 12 May, 1833, and that the writ upon which Finley's judgment was confessed issued on 12 May, 1833, and the writ on which Lea's judgment was confessed was issued on 11 May, 1833, but both writs were tested, as of the proceeding term, service of them was acknowledged, the writs were returned into court and the judgments were confessed on Friday of the term, viz.: 12 May, 1833, as above stated.
The defendant's counsel insisted that the executions related back and bound the property from the teste, viz: Monday, 8 May, 1833. The plaintiff's counsel contended that the executions could not relate back farther than the day of the term when the writs issued and were returned and the judgments confessed.
His Honor being of opinion that the plaintiff was entitled to recover, judgment was accordingly entered for him, and the defendant appealed.
No position can be more firmly established than that the judgments of a court of record, on whatever day of the term they may in fact be rendered, in law relate to, and are considered as judgments of the first day of the term. This is admitted by the plaintiff's counsel to be the general doctrine, but its application to the judgment in the case before us is denied, because the writ on which the defendant therein acknowledged service is noted by the clerk to have been issued on a day subsequent to the first day of the term, and therefore it is inferred that the judgment could not have been in fact rendered on the first day of the term. It may well be questioned whether this be a necessary inference, for a judgment by confession is valid without any (309) previous process. But admit the inference to be irresistible, the fact so inferred is wholly immaterial. In the language of the court in the case of Johnson v. Smith, 2 Bur., 967, "the reason why nobody shall be permitted to aver that a judgment was signed after the first day of the term or that a fieri facias was taken out in the vacation, is because the fact is not relevant; the legal consequences do not depend on the truth of the fact on what day the judgment was completed or the writ actually taken out; but upon the rule of law that they shall be deemed complete and bind to all intents and purposes by relation." That a judgment rendered in fact on a late day of the term is as operative as though it were rendered on the first day thereof seems incontestable. Where a testator died in term time, before a judgment was signed, it was held that it might be signed after, and execution taken out against his goods in the hands of his executor tested the first day of the term, for they relate to, and are considered as a judgment and execution of the first day of the term, at which day the testator was alive. Bragner v. Langmead, 7 Term, 20. See, also, Fann v. Atkinson, Willis 427; Waghorne v. Langmead, 1 Bost. and Pul., 571. So where a testator gave a warrant of attorney to confess a judgment and died within a year afterwards, so that a judgment might be entered up without leave of the court it was held that a judgment entered up after his death related to the first day of the term of which it was entered, when he was living, and that an execution tested of that day might be levied on his goods in the hands of his executor. Odes v. Woodward, 2 Ld. Ray, 766, 849; 1 Salk., 87. See, also, Robinson v. Tonge, 3 P. Wms., 397. This legal relation of the judgment to the first day of the judicial term is as perfect as was at common law the relation of an act of Parliament to the first day of the legislative session. No matter on what day of the session the statute was enacted, unless a certain time were therein appointed when the same should first take effect, it had relation to the first day of the Parliament, and from that day was accounted in law a perfect act. Partridge v. Strange and Croker, 1 Plow., 79; Attorney General v. Panter, 6 (310) Bro. Par. Ca., 533; Latless v. Holmes, 4 Term, 660. The inconveniences found to result from the law of relation as applied to statutes, have been remedied both in England and in this country by positive legislation. The law of relation applicable to judgments has been, in part, changed in that country by the statute of 29 Chas. II; but in this State it remains as it was at common law.
But the controversy in this case does not depend upon the relation of the judgment. The defendant is protected by the writ of fieri facias, and he is not bound to show any judgment. Cotes v. Mitchell, 3 Lev., 20. It is sufficient for his defense that he has acted in obedience to a mandate proceeding from a court of competent authority. The fieri facias was tested of the first day of the term, and it is not to be questioned but that, at common law, the goods of a defendant are bound from the teste of a fieri facias, and may by virtue thereof be taken in execution by the sheriff in the hands of a person who had bona fide purchased them since the teste of the writ. In England the statute of 29 Chas. II. has provided that, against purchasers, no writ of execution shall bind the goods but from the time such writ was delivered to the sheriff. We, however, have no such statute here, and therefore with us the writ binds against all persons from the teste, as it yet does in England, where purchasers are not concerned.
The counsel for the plaintiff has objected that it does not appear that the fieri facias was returned by the sheriff. Whatever weight the objection might have, if it appeared that the writ had not been returned, the Court is of opinion that this case is not open to the objection. It is manifest that the sole question presented for decision upon the facts agreed is, whether the fieri facias or the conveyance to the trustee be entitled to priority. The proceedings of the sheriff upon the writ — if in law such writ was entitled to the priority — must be understood to have been rightfully and regularly done.
This Court being of opinion that the execution did bind from its teste, and that teste being prior to the registration of the deed, it follows that the judgment below must be reversed and judgment upon the case agreed be rendered for the defendant.
PER CURIAM. Judgment reversed.
Cited: Foust v. Trice, 53 N.C. 494; Rutherford v. Raburn, 32 N.C. 146; Clifton v. Wynne, 81 N.C. 162; Webber v. Webber, 83 N.C. 283; Symons v. Northern, 49 N.C. 242; Lea v. Smith, 24 N.C. 227; Peoples v. Norwood, 94 N.C. 172; Harding v. Spivey, 30 N.C. 65; Davison v. Land Co., 120 N.C. 259.
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