Perry v. . Morris

Hick, J. The fund in controversy was derived from the .sale of land under execution. The facts set out by the Sheriff in his return entitled him to ask the advice of the Court as to the distribution of the fund; and the instructions of his Honor were correct in law. Previous to the adoption of the C. O. P. the rights of an execution creditor, when he was not guilty of laches, generally depended upon the teste of his execution. Under the C. O. P. a judgment creditor acquires a lien from the time when his judgment is docketed upon the real property of the debtor, situated in the County in which the judgment is docketed. C. O. P., sec. 254. A docketed judgment is intended as a security for money, and has the force and effect of a mortgage after the time of redemption has passed. If land is sold under an execution founded upon a junior docketed judgment, it amounts substantially to a sale of an equity of redemption, and the land remains subject to the lien created by a prior docketed judgment. To prevent collusion and fraud between a debtor and a ereditor claiming such a lien, this Court under the provision ■of the C. C. P., sec. 394, adopted a rule which enables a *224 creditor claiming under a junior docketed judgment to force a sale, &c. Rule 19, 63 N. C. R. 669. The plaintiff in this case claimed a lien under eight Justice’s judgments which where docketed in the office of the Superior Court Clerk in Stokes County, on the 29th day of October, 1869, and thus ‘‘became judgments of the Superior Court in all respects.” C. O. P. sec. 503. The defendant claimed under a judgment obtained in the Superior Court of Stokes County, and which, in contempla,tion of law, was docketed on the 1st day of November, 1869, the first day of the term. The plaintiff, therefore, had the prior lien and he could in no way be divested of it, except in the manner prescribed in said rule of Court. As the defendant in proceeding upon his execution did not give the notice required by said rule, the plaintiff was not deprived of his priority of lien. The fact that four of the plaintiff’s judgments were also docketed in the County of Eorsythe, did not interfere with the lien created by their being docketed in the County of Stokes, in which the land was sold. There was no error in the ruling of his Honor, and the judgment must be affirmed. Pee Cueiam. Judgment affirmed.