Trover for a wagon, four horses, and other articles of personal property, which the plaintiff claimed under a deed made to him on *Page 338 29 April, 1843, by one Hunter, in trust to secure the payment of certain debts therein specified. On 10 May, 1843, the defendant seized the goods, and on 20th of the same month, in conjunction with the sheriff of Mecklenburg, sold them for the price of $650, of which the defendant received the sum of $306 and the sheriff the residue.
On not guilty pleaded, the defendant showed judgments before a justice of the peace against Hunter, and writs of fieri facias (476) thereon, dated 20 March, 1843, and then delivered to the defendant, who was a constable. The executions, each, had a levy on these articles endorsed by the defendant, bearing date 3 April, 1843. After the seizure by the defendant, by his consent, the sheriff levied on the same goods a fieri facias, issued on a judgment rendered in the county court, and bearing teste in February, 1843; and, when the sale was made the defendant received out of the proceeds a sufficiency to discharge the executions in his hands amounting to the sum of $306, as above mentioned, and the sheriff retained the surplus on account of the execution he held. Among the articles sold were five bales of cotton, which were not conveyed to the plaintiff, and produced the sum of $83; and that is part of the said sum of $306 received by the defendant. The defendant also gave in evidence a deed of trust for most of the articles conveyed to the plaintiff, which Hunter made to one Williamson in April, 1841, for the purpose of securing certain debts. But the plaintiff showed that those debts had been paid before any of the judgments were rendered, and that Williamson so admitted at the time of the sale by the defendant, and also declared that he had no claim to the property under the deed to him.
The plaintiff alleged that the executions in the hands of the defendant had not been levied before the conveyance from Hunter to the plaintiff, and that the levies endorsed thereon were antedated. Upon that question much evidence was given on both sides, which it is unnecessary to state, except the following: A witness for the defendant deposed, that on 7 April, 1843, the defendant went to the house of Hunter and informed him that he was obliged to raise the money before May court, as the creditor threatened to sue him, to which Hunter replied: "I can do nothing before my crop is made, and you might as well advertise and sell"; and the defendant then said: "I dislike to do so, as you are in such low health." Hunter then remarked that he had five bales of cotton which he could sell, and the defendant agreed to take them in payment at $4.50 per 100 lbs., which is the same cotton before mentioned. The defendant did not then take anything into his (477) possession, but said he would send for the cotton in a few days.
The counsel for the defendant insisted that he had levied the executions before the making of the deed to the plaintiff, and that the *Page 339 testimony of the last witness, if believed, was evidence that he made a levy on 7 April, and moved the court so to instruct the jury. But the court refused to instruct the jury that the said witness proved any facts which in law amounted to a levy on 7 April; but left it to the jury to determine upon the whole evidence whether there had been a levy by the defendant at any time before 29 April, with directions if they should find affirmatively to give a verdict for the defendant.
Counsel for the defendant further insisted that the plaintiff had no title to the articles which had been conveyed to Williamson in 1841, and prayed the court so to instruct the jury. But the court refused, and informed the jury that as the articles were not slaves, but chattels, that pass by parol, the payment of the debts mentioned in the deed, the subsequent possession of the property by Hunter, and the declarations of the trustee, as proved, were evidence from which they might, if they thought proper, infer that Williamson had abandoned to Hunter his claim to the property.
Counsel for the defendant further insisted that the fieri facias in the hands of the sheriff, tested in February, 1843, defeated the operation of Hunter's deed to the plaintiff. But the court refused to give that instruction, and instructed the jury to the contrary.
Counsel for the defendant further insisted that as the sheriff acted under a fieri facias of a teste prior to the deed to the plaintiff, the plaintiff could not have an action of trover against the sheriff for seizing or selling any or all of the articles in question, and that, as the defendant, by taking them into his possession, gained a right superior to that of the sheriff, the plaintiff could not maintain this action against him. But the court refused to give the instruction as prayed for, and instructed the jury that after as much had been sold as was sufficient to satisfy the debt to the sheriff the residue was wrongful, unless the defendant had levied before to the plaintiff, and as the (478) defendant made the sale of the residue or concurred in the sale thereof by the sheriff, that the plaintiff would be entitled to recover in this action.
The jury found a verdict for the plaintiff, assessing the damages to $223, that being the sum of $306 received by the defendant, deducting therefrom the sum of $83 produced by the sale of the cotton. From a judgment accordingly the defendant appealed. In the argument here the counsel has not contended for the first point made at the trial. The witness certainly did not prove a levy on 7 April, there being nothing more than the expression *Page 340 of Hunter's willingness for a sale and the defendant's reluctance to advertise one. There was no actual seizure of anything, nor any other act or declaration of the debtor or of the defendant amounting to a present appropriation of property for the satisfaction of the debt. So far as that conversation could be evidence of an understanding of the parties to it that there had been a levy made at that time or before, it was left with other evidence to the jury, and they have found that there was none. It was, however, argued that the court ought to have instructed the jury that the defendant's return was prima facie evidence of a levy on 3 April. The answer is, that the court did probably so instruct the jury; but that, of course, is not stated in the case, because no exception was taken on that point. But if the court did not give such instruction it would not be erroneous, for it does not appear that it was asked, and a party cannot complain that the court did not do a thing which he did not ask to be done.
Upon the second point we think the reasons given by his Honor conclusive of the correctness of the opinion that the jury was authorized to find upon the evidence, that the property conveyed to Williamson (479) had been revested in Hunter, although there was no written conveyance.
As to the next question, it is very clear that a fieri facias, although it creates a lien on property, which prevents the owner from selling it, unless subject to the lien, yet does not divest the property out of the debtor until a seizure, and even after a seizure the sheriff gains but a special property, such as is necessary for the satisfaction of the debt, and leaves in the original owner the general property, which is an interest which he may sell and convey at law. Payne v. Drew, 4 East 523; Popelstonv. Skinner, 20 N.C. 290; Jones v. Thomas, 26 N.C. 12.
The law upon the fourth point results necessarily from that just stated, for if the plaintiff gained by the conveyance to him the legal property, subject to a lien for the satisfaction of the execution from court, when that execution was satisfied the absolute property, freed of all lien, in the residue of the goods was in the plaintiff. The sheriff had no right to proceed to sell them after he had been already satisfied; and if he had done so he would have been answerable for it, and the defendant with him, for having procured him to act thus and receiving the proceeds of the illegal sale. But we do not understand that to have been the case, in point of fact. On the contrary, the true transaction was that both officers sold; each upon his own process, and they divided the money according to their relative priorities. They adopted the course of acting in conjunction for the sake of the ingenious puzzle, as it seemed to them, in which it would involve the plaintiff. They argued *Page 341 speciously that the sheriff had a right superior to that of the plaintiff; and the defendant's right was preferable to that of the sheriff: Ergo, the defendant's title must be paramount to the plaintiff's. Now, that would be true if their several priorities arose out of the same fact or depended upon the same principle. But that is not the case. The preference of the sheriff to the plaintiff is given because the teste of his execution was before the execution of the deed; whereas the preference given or denied to the defendant as against the other two parties respectively depends upon the date of his levy: Rev. Stat., ch. (480) 45, sec. 16; Jones v. Judkins, 20 N.C. 591. Therefore the defendant might get a priority over one of those parties and not over the other; and, by levying before the sheriff, he postponed the court execution and got the preference for his own; while, by not levying before the deed was made, the property was effectually conveyed as against him. The defendant has no connection with the execution in the sheriff's hands, and therefore, cannot set it up for the purpose of defeating the plaintiff's deed. It is his own levy, which determines the defendant's right against each of the other parties, but it operates against each of them severally. Therefore, the defendant's syllogism fails. The truth is that, as far as the amount of his execution, the sale by the sheriff was lawful and is to be regarded as having been made by him; and for the purpose of satisfying the justice's executions, the sale was made by the defendant.
The defendant had the right, in virtue of his preference over the sheriff, to sell the cotton under his executions and take the money; and, as that was not converted to the plaintiff, he has no cause to complain of that application of it. As the defendant had the benefit of that fund, he got all he was entitled to, and the judgment must be affirmed.
PER CURIAM. No error.
Cited: Murchison v. White, 30 N.C. 53; Penland v. Leatherwood,101 N.C. 515.
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