Dunn v. . Nichols and Jones

Dick, J. The defendants, by the levy of their executions upon the real estate of the debtor Page, acquired a lien, which was continued by the subsequent writs of ven. ex., to the day of sale. The fact that the Sheriff was prevented from making salo under these writs, by the Stay Law, does not affect the lien of the defendants. Although he made sale under the junior ven. ex, of the plaintiff, it is expressly stated in the return of the Sheriff, that he made no appropriation of the proceeds of sale, but referred that question to the Court. It is well settled that where the conduct of the parties is bona fide, the execution of the oldest teste is entitled to priority. The' defendants have done their duty faithfully and diligently, and they lost none of their legal rights by the failure of the Sheriff to sell under their process. The special fi. fa. clause, in the writs of ven. ex., of the defendants does not give them priority as to the personal property, which was not levied upon by their executions. This special fi. ja. has not the force and effect of analias fi. fa. — but is depend *110 ent upon the result of the sale under the ven. ex., to which it is annexed. If such sale is insufficient to satisfy the debt, then for the first time the special fi. fa. becomes operative— Allemong v. Allison, 1 Hawks 325. The plaintiff's execution was levied upon the personal property, and the sale was made before the land was sold and before the special fi.fa. had any vitality, and the law appropriated the proceeds to the plaintiff’s debt. The judgment appealed irom by the plaintiff is affirmed. The judgment appealed from by the defendant, is affirmed. As both parties appealed, the Clerk of this Court will state two cases on Ms docket, and tax the costs against the appellant in each case. Let this be certified. Per Curiam. «Judgment affirmed.