Henderson Building & Loan Ass'n v. Burwell

Olaeicson, J. We think that it is only necessary on this appeal to consider one question: Did the Citizens Bank and Trust Company, the defendant, have a prior right to plaintiff, on account of its attachment against the personal property of R. S. McCoin? We think so. N. C. Code (Michie), 1931, section 1986, in part, is as follows: “Taxes shall not be a lien upon personal property, except where otherwise provided by law, but from a levy thereon,” etc. The lien for the payment of taxes assessed against personal property attaches only from the date of levy thereon, subject to certain exemptions sjoecified in Const., Art. V, secs. 3 and 5, Carstarphen v. Plymouth, 186 N. C., 90. N. C. Code (Michie), section 8006, is as follows: “The personal property of the taxpayer shall be levied upon and shall be sold for the satisfaction of his taxes before resorting to his real estate, if sufficient personalty subject to levy and sale can be found in the county of the sheriff having the tax list in hand: Provided, it shall be incumbent upon the taxpayer, mortgagee or other lienholder on taxpayer’s realty, if said mortgagee or other lienholder has notified the sheriff that he holds such mortgage or other lien, to point out to the sheriff personalty out of *361 which the taxes may be made or else such taxpayer shall forfeit his rights under this section and his real estate shall be subject to* the lien for taxes as if no other property had been listed by him.” The defendant sheriff, J. E. Hamlett, testified: “I don’t recall the date, but I had seized this same property under an attachment of the Citizens Bank and Trust Company before the property was pointed out to me for taxes. At the time the property was pointed out to me with request to levy on it for taxes, it was then in my custody under an attachment.” The plaintiff pointed out the property to the sheriff, after the warrant of attachment by defendant bank. In Trust Co. v. McCoin, ante, 272, this attachment was held valid. In Penland v. Leatherwood, 101 N. C., 510 (514) : “There can be but one actual levy of one or more executions upon personal property at one and the same time, because the officer in making the same seizes or gets possession and control of it and has a special property therein and ownership thereof that excludes and prevents other like levies, which levy, however, as we have already seen, places the property in custodia legis, to be applied in proper cases if need be, to other executions. Other officers having like executions, may make other levies upon the same property, but these will be constructive in their nature and entitle the officers making them, in their order, to have the property or the proceeds of the sale thereof after the executions under and in pursuance of which the first actual levy proper was made shall be satisfied.” In Hambley v. White, 192 N. C., 31 (S. c., 192 N. C., 624), 34, we find the following: “Attachment partakes of the nature of an execution before judgment (Johnson v. Whilden, 166 N. C., 104); and as the lien begins with the levy of the attachment (McMillan v. Parsons, 52 N. C., 163), it is subject to all others of prior date and superior to those of subsequent date. Morehead v. R. R., 96 N. C., 362. As remarked by Mr. Justice Matthews in Freedman's S. & T. Co. v. Earle, 110 U. S., 717, ‘It is the execution first begun to be executed, unless otherwise regulated by statute, which is entitled to priority.’ ” Plaintiff cites N. C. Code, 1931 (Michie), 8008: “What subject of levy.” We cannot give it the construction put on it by plaintiff, it does not impinge on the priority of the defendant bank, under its attachment. The position here taken is determinative of the controversy. The other matters we need not discuss. The exceptions and assignments of error made by plaintiff cannot be sustained. We find no error in the judgment of the court below. No error.