G A. Gambrill Manufacturing Co. v. Wilcox

Clark, J.: In Cannon v. Parker, 81 N. C., 320, it is decided that the effect of a sale under a junior judgment is to pass *44 the debtor’s estate encumbered with the lien of an older docketed judgment, and of a sale under both to vest the title in the purchaser and transfer the liens, in the same order of priority, to the proceeds of sale. That case is decisive of this. It was not necessary that execution should have been issued on the plaintiff’s judgment, which was the next in priority of docketing. It is the docketing of a judgment, and not the issuing or levy of an execution, which creates the lien under the present system. Sawyers v. Sawyers, 93 N. C., 321; Williams v. Weaver, 94 N. C., 134; Holman v. Miller, 103 N. C., 118. In effect, the lien of a docketed judgment is in the nature of a statutory mortgage. A rule was adopted by the Supreme Court, at June Term, 1869j(63 N. C, 669), that if a junior judgment creditor gave to a creditor whose judgment was first docketed twenty days notice, and the latter thereupon failed to take out execution and have it in the Sheriff’s hands the day of sale, he should lose his priority.' This was held unconstitutional, because an interference with the vested rights of the older judgment creditor, in Burton v. Spiers, 92 N. C., 503, and the rule has been revoked. In like manner, when the judgment debtor dies, and the persoual representative finds it necessary to sell to make assets to pay debts, the lien of the judgments is transferred in the same order of priority to the proceeds of the sale. Murchison v. Williams, 71 N. C., 135; Mauney v. Holmes, 87 N. C., 428; Sawyers v. Sawyers, supra. Formerly, it was the duty of the Sheriff to apply the prjceeds of the sale to the executions in his hands according to their priority. Now it is his duty to apply the proceeds to the execution in his hands which was issued on the oldest docketed judgment (for the lien of any judgment docketed prior to that is not affected by the sale), and the proceeds should next be applied in satisfaction of the next oldest judgment lien, whether execution has issued thereon or not. Motz v. Stowe, 83 N. C., *45 434, (438). The Sheriff has failed, in the present case, to apply the proceeds of the sale according to the priority of lien of the docketed judgments, and is liable for such misapplication. In the judgment of the Court below we find Per curiam. No Error.