Worsley v. . Bryan

Ashe, J. We are of the opinion there was no error in this ruling of His Honor. The judgment in favor of Jenkins is in no view entitled to any part of the proceeds of the sale. In the first place, the land was sold for six-hundred and two dollars, which we must presume was its value, subject to any prior liens. The Jenkins’ judgment was founded upon a note given in 1871, and the defendant is entitled to his homestead against it. It created no lien upon the land which could be enforced by a sale under execution. If execution had been issued upon it, and it had been the only execution in the hands of the sheriff, he could not have sold under it, without having first laid off the homestead of the defendant Stancil, and as there was no excess over the one thousand dollars value of the land, there would have been nothing subject to sale under the-execution. And in the next place, even if the Jenkins’ judgment had been rendered upon a debt contracted before 1868, and clear of the impediment of the homestead right of the defendant, it still would not have been entitled to any portion of the fund, for the reason that no execution on the same was in the hands of the sheriff at the time of the sale. It is too well settled in this state, to admit of controversy, that where .a sheriff has levied upon property under a fi.ja., and before he has completed execution by sale, another fi. fa. comes to his hand wdth a prior lien, he should apply the proceeds of sale to the first. Allemong v. Allison, 1 Hawks, 325; Green v. Johnson, 2 Hawks, 309. And when the executions are of equal testes, or have equal rights of satisfaction, they should be satisfied equally or pro rata. Palmer v. Clark 2 Dev., 354. Such was the law before the Code and we do not think the principle has been changed by its adoption. *346 It is true, instead of the execution it is now the judgment which creates the lien, and the effect of the execution is to enforce the lien; but the sheriff can only look to it for his guide in making the sale and the application of the money raised thereby. Motz v. Stowe, 83 N. C., 434. Though we hold that no part of the money raised by the sheriff’s sale is applicable to the Jenkins judgment, yet we do not wish to be understood as deciding that the lien of that judgment upon the land may not be enforced when the homestead right expires. There is no error. The judgment of the court below is affirmed. No error. Affirmed.