M'Key v. Garth

Whilst on the one hand, where an officer holding two executions sells under the second, the title of the purchaser is good against the plaintiff in the first, and the remedy of the latter is against the officer, so on the other hand the purchaser at such sale cannot invoke the lien of the first execution, in aid of a title acquired at a sale made under the second. Therefore, where a slave was levied upon under a fi. fa. delivered to a constable before any conveyance of the slave by the debtor, and other executions issued after such conveyance, under which (and not under the first fi. fa.) the evidence tended to prove that the slave was sold, it was held, in an action brought by the grantee in the conveyance against the purchaser at the sale, that the title of the purchaser must be referred to the process under which the sale was made. Accord. Eckhols v. Graham & others, 1 Call 492.

By deed bearing date the 4th of June 1823 and admitted to record in the office of Albemarle county court on the same day, John Norvell conveyed to Andrew M’Key and Henry Chiles five slaves, one of whom was a girl named Mary, and another a boy named Randolph, and also other personal property, in trust for the purpose of securing the payment of certain debts therein mentioned. On the 6th of April 1824, M’Key and Chiles brought an action of detinue in the circuit court of Albemarle against William Garth, to recover Randolph. The cause was tried in May 1835, upon the general issue. At the trial, the plaintiffs relied upon the deed of trust before mentioned, and the defendant relied upon a purchase at a constable’s sale made under a writ or writs of fieri facias against John Norvell, which he contended created a lien upon the property before the dale of that deed, and overreached the title conveyed by it. In support of this ground, the defendant introduced a ^ac^as ’ssued l^e 25th of May 1823, by a justice of the peace for Albemarle county, in favour of Ben. Johngon agajngt Norvell for 11 dollars 27 cents with interest from the 27th of December 1S21 till paid, and 30 cents costs, (which was directed to the constable of the said county), with endorsements thereon by James Thomas the constable, shewing that it came to his hands on the day of its date, and was levied by him the 17th of June 1823 on one negro girl Mary and one boy Randolph; and the said defendant also introduced the deposition of Thomas the constable to the following effect: that on the 17th of June 1823, while acting as constable of Albemarle, he levied the said execution (which had been in his hands from the 25th of May 1823) on the said boy Randolph; that he took the boy home, intending to keep him until the day of sale, but he ran away, and could not be found until after the August court, which was the time appointed for the sale; that after that time, to wit, about the 15th of August 1823, he found the boy at work on Norvell’s plantation, and retook him for the same debt, and others which had afterwards come to his hands. The deposition continued as follows: “At the October court, he was regularly advertised and sold under that execution and others, and was purchased by William Garth at the price of 150 dollars. Before the day of sale the first execution ran out of date, and the magistrate renewed it, under which renewed one, in the name of Johnson, the sale was made; and the balance of the money after paying that execution was applied to the payment of the remaining executions, and there was not enough.” After the cause had been argued and the jury sent out to consult of their verdict, they returned into court, and asked the court to instruct them upon this point: whether, if the fi. fa. of the 25th of May 1823 had been levied in due time by the constable upon the slave, and he had escaped and been .retaken, the constable could, after the return dajr of the fi. fa., legally sell the said slave without a new execution ? The court instructed the jury that no new execution was necessary in such case; that in truth, in such case, no new original execution could issue; that a venditioni exponas might have issued, but was not necessary ; and that if the constable had applied for and obtained of the magistrate new executions, under the mistaken opinion that they were necessary, and had supposed himself selling under such new executions, the plaintiff in the first fi. fa. did not thereby lose the lien of the first levy, but the jury should regard the sale as having been made under and by virtue of that fi. fa. and the levy thereof, so as to give to the creditor therein the full benefit of the lien thereby created. To this opinion the plaintiffs excepted. A verdict being found and judgment rendered for the defendant, on the petition of the plaintiffs a supersedeas was awarded.