The lessor of the plaintiff produced a judgment in favor of John Wier against Robert Wier, which was entered up at the Fall Term, 1821, of LINCOLN Superior Court, executions upon which regularly issued (13) until the Fall Term, 1822, when the lessor of plaintiff purchased, but did not take a deed from the sheriff until 26 April, 1827.
The lessor of the plaintiff also claimed title under two other sheriff's sales, made upon executions in favor of one Wilson and one Fulenwider, which it is unnecessary to notice further.
The defendant deduced his title as follows:
1. By a deed from Robert Wier to his son Joseph Wier, dated 6 March, 1809. *Page 23
2. By proof of Joseph Wier's possession from the date of that deed until November, 1825.
3. He produced the record of a recognizance to the State, entered into by Joseph Wier, at the Spring Term, 1826, of Lincoln Superior Court, which was forfeited at the ensuing term, when process issued, and final judgment was afterwards entered in favor of the State; a fi. fa. issued on this judgment, and the defendant purchased in November, 1827.
It was in proof that in March, 1809, the date of the deed from Robert to Joseph, a suit was pending in Orange Superior Court, at the instance of one Robertson, against Robert Wier for a malicious prosecution, in which final judgment was afterwards obtained for $500, and an execution upon which was satisfied. It was also proved that Robert Wier lived on the land with his son Joseph.
His Honor, Daniel, J., charged the jury that as the lessor of the plaintiff claimed under a judgment in favor of John Wier, a creditor of Robert, at the time of the conveyance by Robert to Joseph, in March, 1809, they ought to inquire whether that conveyance was made to hinder, delay or defraud the creditors of Robert Wier — that it was unnecessary to inquire whether Robertson was a creditor within the meaning of 13 Elizabeth, because the lessor of the plaintiff did not claim under him — that if they should think the deed of Robert to Joseph was fraudulent as to John Wier, then they should find for the lessor of the plaintiff, unless the possession of Joseph Wier had ripened his defective title into a good one, and barred the entry of the lessor of the (14) plaintiff; that under the Act of 1715, a fraudulent deed was color of title, and that if Joseph Wier continued in possession for the space of seven years, holding the land adversely to all the world, the lessor of the plaintiff would be barred by that act.
A verdict was returned for the defendant, and the lessor of the plaintiff appealed. The first position of the judge of the Superior Court, that it was immaterial to inquire whether the conveyance of Robert Wier to his son Joseph Wier was intended to defraud Robertson, since neither party claimed under him, is contrary to what I have always considered the law, and contrary to the authorities. I conceive that a conveyance in fraud of one creditor is void as to all creditors. It is upon this foundation that what are called fishing bills are filed in equity, to find out a creditor at the time of the conveyance, and to bring (15) *Page 24 the whole fund into subjection to general creditors, including subsequent creditors, and a fortiori other creditors at the time. Lush v. Wilkinson, 5 Ves., 384; Taylor v. Jones, 2 Atk., 600.
This Court has likewise the misfortune to differ from the court below upon the next instruction given to the jury. The case of Peterson v.Williamson, 13 N.C. 326, and Pickett v. Pickett, ante, 6, establish that the possession of a fraudulent grantee does not bar a creditor under the statute of limitations. The title is void to all intents, and this extends to the deed when operating as color of title, as well as when offered as title itself. It will inure under the statute against the purchaser under the creditor's execution, but not before. For these reasons the judgment below must be reversed, unless the record shows that at all events the defendant hath a better title, and must obtain a verdict upon a second trial.
The counsel for the defendant, admitting that he could not support the charge of the court, has insisted here that the defendant has the better right. He founds his argument on this state of facts: That the lessor of the plaintiff, although he purchased under John Wier's execution against Robert Wier, in October, 1822, obtained his deed on 26 April, 1827, and that Joseph Wier being in possession, entered into recognizance to the State in April, 1826, on which execution afterwards issued, under which the defendant purchased 22 October, 1827, and took a sheriff's deed in November following. It is insisted, in the first place, that the State, by force of the recognizance, is a purchaser from Joseph Wier, within our statute against fraudulent conveyances; and that the true construction of that statute, since the proviso is adopted from the 27 Eliz. instead of 13 Eliz., is that the first bona fide purchaser, whether from the grantor or grantee, has a good title; and also, that a like purchaser from the grantee is to be preferred to a (16) creditor of the grantor. This last position is one which requires to be established by very clear reasoning before it can be adopted. Where creditors are the peculiar objects of the protection of a statute, which makes an act done to their injury void as against them, it seems difficult to suppose that any subsequent occurrences can set it up again, contrary to the object and express words of the statute. Under the other statute, purchasers only are within the purview, and wherever a purchaser appears, whether from the grantor or grantee, there is a person for whose benefit the statute was designed, and can operate. In the case of creditors, those of the grantor alone are within the purview. Has the act been ever construed to set up a fraudulent conveyance for the benefit of thegrantee's creditors? Can it be? If not, how does a purchaser from him stand better? The opposing decisions cited from Johnson's *Page 25 Reports are entitled to much consideration, and would be to much more did they not conflict with each other. The Court would certainly pay very great respect to the latest, as the adjudication of the highest Court, and weigh the reasons well before adopting a contrary rule, and would not proceed to decide this case against those cases without discussing those reasons, if the decision depended upon the point. But we think it does not, because, admitting the State to be a purchaser, and that such a purchaser is within the proviso, yet here the creditor of the grantor had sold, and the lessor of the plaintiff purchased at his sale, before the State purchased. The sheriff's sale under John's execution was in October, 1822, and the recognizance was in April, 1826.
It is said, however, that the title did not pass by the sheriff's sale, but only by his deed, which was in April, 1827, after the recognizance; and, therefore, that the land remained the estate, in law, of Joseph, and was bound by the recognizance. The effect of a sheriff's sale, and the relation of his deed to the sale, have been considered by the Court, in the cases of Davidson v. Frew, ante, 3, and Pickett v. Pickett, ante, 6, as between individuals. In the former, the plaintiff claimed under execution against the husband, and the defendant by act of (17) law as his widow. In the latter, the plaintiff claimed in like manner under execution against a fraudulent grantor, and the defendant was the fraudulent grantee himself. In both it was held that the deed, operating as the execution of a power, related back to the power itself. There has been an attempt to distinguish this case from those by saying there is no relation against the sovereign, and a string of cases cited to show that the execution of the king is entitled to the first satisfaction, unless the debtor's goods be actually sold under the subject's process, before the sovereign is delivered. The Court is not disposed to contest that, nor to lay the public here under greater disadvantage than is imposed on the interest of the community represented by the crown in England. But the question in this case is altogether different. The cases relied on are those of the same debtor to the crown and the subject, and no sale by the latter before the former sues execution. Both circumstances must concur to give operation to the prerogative. The cases of Rex v. Wells, 16 East, 278, and Rex v. Sloper, 6 Price, 114, so lay down the rule. If the subject hath sold the goods of the king's debtor, before the sovereign sues execution, the sale is not disturbed. It is no longer a question of preference of satisfaction; for the goods have ceased to be the debtor's for any purpose. But here the question is not one of relation, on which depends the right of prior satisfaction. But the question is, Whose lands were these when the lien of the recognizance was created? If both parties claimed the lands under Joseph Wier, *Page 26 then the reasoning might apply. And it would then have to be determined whether the sale by an individual of land for which no sheriff's deed was executed would defeat, by a subsequent execution of the deed, the lien of an intermediate recognizance. Upon that we will be ready to give an opinion when it arises, for there seems not much difficulty in it. But in our case the parties claim under different creditors, againstdifferent debtors. And to that case the doctrine of the prerogative does not extend. It is not a question of priority; but simply one for (18) the creditors of which of two debtors is the land a fund. When the lessor of the plaintiff bought, his purchase was a good one, since the land was the father's for the purposes of his creditors. His deed, as to all persons claiming under the father, relates to the sale. A stranger claiming under Joseph subsequently has no interest in the question of its relation. The doctrine of relation does not concern him. He can only show that the lands remained Joseph's, to pay his debts. And in that respect the State and an individual stand on the same footing.
It will be perceived that the recognizance has been treated as creating a lien, and that such lien continues, notwithstanding the process of fi.fa. on it. The Court is not obliged, in this case, to decide the effect of suing that execution, but as the point was made, and it is of consequence that no doubt should be felt on it, the Court feels it a duty to express a prompt opinion upon it. The specific lien of a recognizance is not lost by suing a fi. fa., notwithstanding the case of Jones v. Edmunds, 3 Murph., 45, rules it so, as to judgments generally. The security of the public and the ease of persons demanding to be let to bail require it. There has been no extent sued in this State within memory; indeed, none heard of; and without giving this effect to the ordinary process of execution, a recognizance would afford the State no assurance of the appearance of criminals. Burton v. Murphey, 2 Murph., 339, is in point, and that case is founded on the previous one of S. v. Magniss, in 1794, 1 Hay., 99, which recognizes the rule as so understood and generally received at that time, and is the stronger, because referring to what was said on the same subject in the argument of Bell v. Hill, 1 Hay., 87.
No notice is taken of the title set up under Wilson's executions, because the title of the plaintiff is plain under John Wier's, and the facts do not very clearly appear. The sale under Fulenwider's is certainly bad, because they were against Joseph himself, and posterior to his recognizance.
PER CURIAM. Judgment reversed.
Cited: Flynn v. Williams, 29 N.C. 38; Justice v. Scott, 39 N.C. 116;Toole v. Darden, 41 N.C. 396; Toole v. Stancil, ibid., 502; Young *Page 27 v. Lathrop, 67 N.C. 69, 70; Woodley v. Gilliam, ibid., 239; Davis v.Inscoe, 84 N.C. 403; Cowles v. Coffey, 88 N.C. 342; Dail v. Freeman,92 N.C. 356; Ellington v. Ellington, 103 N.C. 58; Clements v. Cozart,112 N.C. 419; Miller v. Alexander, 122 N.C. 721; Bank v. McCaskill,174 N.C. 364.
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