The plaintiff sued out a writ in detinue on 8 August, 1825, against Mark Cooke, to recover certain negro slaves. The writ was (339) returned to August Term, 1825, of Wake County Court, and at August Term, 1828, the plaintiff obtained a verdict and judgment. At August Term, 1824, of the same county court, the defendant recovered judgment in several actions of debt against Cooke. Executions tested of November Term, 1824, issued upon these judgments, and on 16 February, 1825, were levied by the sheriff on the said slaves, and the levy returned at February Term of the same year. The slaves, by *Page 277 consent of the sheriff, remained in the possession of Cooke, on condition that they should be surrendered up whenever he required, and they had not been removed at the time the action of detinue was commenced. On 19 September, 1825, under a venditioni exponas issuing upon the judgment against Cooke, the slaves were sold by the sheriff to the defendant, and delivered into his possession.
Upon these facts his Honor gave judgment for the defendant, and the plaintiff appealed. I feel it a duty to myself and the profession to revise what was said in the case of Falconer v. Jones, ante, 334. Not that I am dissatisfied with the judgment pronounced in that case. But it may be understood from what was then said that it is a sufficient plea to the scire facias for the defendant to show that he may have rights paramount to the plaintiff and defendant in the original action, and is therefore not concluded by the judgment. I am satisfied that it is not sufficient to show that the defendant may have a paramount title to the plaintiff; but he must allege, and therefore show, if required, that his title is paramount. In that case, therefore, it was not sufficient for Jones to have alleged and shown that he was a purchaser at an execution sale pendente lite, but he should have gone on and shown that the title of the plaintiff was of that character, that although good against the defendant Holloway, yet it was not so as to the creditors of the defendant's intestate, in whose right the suit was defended. That (340) as to those creditors it was fraudulent, or otherwise defective against them; or rather, that creditor to whose rights he was substituted by his purchase at the sheriff's sale, as that confesses and avoids the recovery, and shows its want of obligation on him. But the decision in that case is sustained by the plea that the judgment endeavored to be enforced against the defendant was fraudulently obtained. For it is to fair and bona fide judgments, and not to fraudulent ones, that the right of their enforcement against purchasers pendente lite is given. For no obligation, either legal or moral, withholds one from setting up his vendor's title against him who has fraudulently combined with his vendor to weaken or destroy it, after he has conveyed the property to him. No principle of policy or convenience requires that such judgment should conclude his rights. But the case before us does not depend on these principles. Here the defendant's possession, or rather the sheriff's, under whom he claims, commenced before the commencement of this suit. For Cooke, after the sheriff's levy, became his bailee at will. He had no *Page 278 possession as against the sheriff, and therefore the defendant did not acquire the possession after suit brought. It is connected with the sheriff's possession, which commenced by the levy; and non constat, that the defendant's title did not arise entirely after the levy. In that suit it was sufficient to show a title against the defendant.
PER CURIAM. Judgment affirmed.