The evidence on the part of the plaintiff was that he purchased the negroes of one Alley on 19 September, 1820, for a valuable consideration of bone fide; that he took them into (342) possession, and afterwards on 7 October, 1820, the defendant levied on and sold them, by virtue of an execution issuing from September, 1820, returnable to March, 1821, at the instance of the State Bank, against Alley and one Elliott.
The defendant proved that the bank, in March, 1820, obtained a judgment against Alley and Elliott for the sum of $241.30; that an execution issued thereon and came to the hands of the defendant (Alley being sheriff of the county), which was tested March, 1820; that one-half of the judgment was paid by Elliott, and about the time of harvest the defendant went to Alley's house to get satisfaction of the balance of the execution, when Alley gave him a list of these negroes and some other property, sufficient to satisfy the claim, which property the defendant left in Alley's possession and afterwards said he had levied thereon. The execution was returned by the defendant to September Term, 1820, when the clerk barely altered the teste, and issued the same writ as an alias, from September, 1820, returnable to the next court. Under this the defendant, on 7 October, 1820, sold the negroes. In September, 1820, Alley carried off the property to Tennessee. I think a new trial ought to be granted in this case because the facts seem to me to be very imperfectly set forth. I cannot see upon what ground a verdict has been rendered against the defendant. It seems he levied upon the property in dispute about harvest time; but this was before the sale by Alley to the plaintiff; that he afterwards, under an alias fi. fa., levied upon and sold the property on 7 *Page 194 October; that Alley carried the property away sometime in September. It does not appear that the property was ever in the possession (343) of the defendant. If that was the case, I cannot see on what ground a verdict and judgment could be rendered against him. But suppose that the defendant had levied upon and taken the property into his possession in September under the alias fi. fa. before Alley carried it away, I cannot see that he is liable for that, although the plaintiff's bill of sale was executed before that time, because the firstfi. fa. that issued from March created a lien on the defendant's property, so that he himself could not dispose of it, and that lien was continued under the alias fi. fa. and existed when the slaves in question were sold to the plaintiff in September. It is true that, although he had levied upon them under the first fi. fa. yet, as he had not made a return thereof and taken out a venditioni exponas, the benefit of that levy was lost, but still the lien continued as much as if that levy had not been made, so that the defendant could not dispose of the property. For all these reasons, I think a new trial ought to be granted.
TAYLOR, C. J., and HENDERSON, J., concurred.
PER CURIAM. New trial.
Cited: Dever v. Rice 20 N.C. 569; Smith v. Spencer, 25 N.C. 260;Butts v. Patton, 33 N.C. 265; Dobson v. Prather, 41 N.C. 34; Watt v.Johnson, 49 N.C. 192.