Boseman v. . McGill

Clark, C. J. The judgment at September Term, 1921, was a final judgment, the debt being ascertained and foreclosure by sale being adjudged. Johnson v. Roberson, 171 N. C., 194; Davis v. Pierce, 167 N. C., 135; Williams v. McFadyen, 145 N. C., 157. In this last case, Mr. Justice Hoke said: “Such judgment is final as to the amount of indebtedness so adjudicated, and it is also final for purposes of appeal as to all debated and litigated questions between the parties preceding such decree.” The appeal not having been served in proper time, a cw'tiorari in lieu thereof was applied for in apt time and granted upon cause shown. This necessarily brings up only the order in the supplementary proceedings, there being no exception taken to the judgment upon the indebtedness. Indeed, the exceptions filed by the defendant abandon any appeal, if there had been any, from the judgment as to the indebtedness and excepts only to the order in the supplementary proceedings. 0. S., 663, provides: “Where a judgment requires the payment of money, it may be enforced in those respects by execution as provided in this article.” A long line of eases hold that, “The vendor has two remedies that he may adopt to collect his debt — one in personam, to compel the vendee to pay it — the other in rem, to subject the land to its payment, and he may prosecute both these remedies at the same time.” Allen v. Taylor, 96 N. C., 37. The judgment in this action decrees that plaintiff “recover judgment against the defendant W. E. McGill for the sum of $7,690, with interest from 5 January, 1921, and for the cost of this action.” It appeared that the defendant had no property liable to execution, and no equitable estate in lands within the lien of the judgment except the real property described in the complaint, and that this was insufficient in value to satisfy the judgment. In McKeithan v. Walker, 66 N. C., 95, it was said: “We see no reason why the proceedings given by section 266 may not be commenced before the sale of the property levied on, on an affidavit or other proof of its insufficient value, just as a subsequent levy may be made after a previous insufficient one; but clearly no final order can be made appropriating to the creditor any property discovered under this section, until the property previously levied on is exhausted, for until that is done it cannot be known whether *219 anything is still owing. Until the property levied on can be brought to sale by a proper proceeding, the property discovered by the garnishee may be levied upon as a security for the deficiency.” This is exactly the proceeding pursued in this case. The clerk’s order required the money to be paid into the court, to await the sale and confirmation as to the land upon which plaintiffs have a specific lien, as security. The defendant’s attorney, one of the commissioners, having, reported to the court that $5,500, the price for which it had been sold, was a fair and reasonable one for said land, it was confirmed by the court, which sustained the finding of fact by the clerk that the land was of insufficient value to satisfy the judgment. A plaintiff who has a lien upon lands which he knows to be of insufficient value to satisfy his judgment is not required to stand helplessly by and see the defendant make way with a fund which could make good the deficiency in the value of the land while the statute of limitations was running against his judgment, as stated in McCaskill v. McKinnon, 121 N. C., 194. Both as a matter of law and of equity the execution and supplementary proceedings were properly had in this case. The appellant’s argument seems to be based upon the mistaken im pression that the supplementary proceedings herein were brought under C. S., 711. In fact, they are authorized by C. S., 712 and 719, and under the construction placed thereon in Bank v. Burns, 109 N. C., 105, in which the headnote sustains the action herein taken: “An affidavit by a judgment creditor, his agent, or attorney, that an execution has been issued upon his judgment, though it has not been returned, and that defendant has not sufficient property ‘subject to execution’ to satisfy the judgment, but has property ‘not exempted from execution’ which he unjustly refuses to apply to its satisfaction, is sufficient to support an order for the examination of the debtor, and persons alleged to be indebted to him; and, also, an order forbidding the disposition, by the latter, of any effects belonging to the judgment debtor,” distinguishing Hinsdale v. Sinclair, 83 N. C., 338. The order of examination having been authorized by law as above stated, the order of condemnation made by the clerk was within the scope of C. S., 721, which provides: “The court may order any property, whether subject or not, to be sold under execution, in the hands of the judgment debtor or any other person to be applied towards the satisfaction of the judgment.” The defendant contends that the execution was never placed in the hands of the sheriff, but that contention is negatived by the affidavit of plaintiffs in support of the order of examination, which states that the execution was duly issued and at once delivered to the sheriff of the county of Cumberland, where the defendant then resided, and the clerk. *220 found as a fact tbat execution bad been issued upon said judgment. Tbe lack of return of execution is not conclusive against sucb finding, for after its issuance it might bave been banded to tbe party or to bis agent. McKeithan v. Blue, 149 N. C., 95. Tbe defendant further contends tbat it might be tbat tbe defendant has other property out of which this execution could bave been made, but this is negatived by tbe affidavit of plaintiffs in support of tbe order of examination, which is not denied, and there was no evidence produced tbat tbe defendant bad other property. Bank v. Burns, 109 N. C., 105, in which tbe affidavit was to tbe same purport. Tbe order of tbe clerk, as modified by Lyon, J., must be Affirmed.