Baldwin v. . York

ByNüm, J. The deed of the plaintiff was executed the 12th day of May, 1873, and clearly he was not entitled to the rents and profits of the land, antecedent to his title. It was error, therefore, in his Honor to enjoin Gattis from paying them to York, or ordering him to pay them to the receiver. Nor can it be seen from the case, upon what ground a receiver was appointed at all, there being no allegation of the insolvency of the defendants. In effect, this is an action of ejectment, where both parties claim title, and the defendant is in possession. In such case, pending the action, an injunction does not lie, restraining the defendant from enjoying the fruits of his possession and claim of title, and especially when it does not appear that the plaintiff* will lose the fruits of his recovery, if he establishes his title. The plaintiff moved for judgment upon the complaint and answer. This was irregular. If he admitted the allegation of the answer, he should have demurred thereto, and then nothing but issues of law would have been presented to the Court.. But the answer denies some material allegations of the com. plaint, which raised issues of fact, which should have been found either by the Court or a jury. The defendant denies all fraud, yet the Court, as a matter of law, declares the deed of' the defendant, fraudulent and void. Whether it be so, may, *466 depend upon the existence of some facts which do not appear upon the record. It is clear that the plaintiff, by his levy, acquired a lien upon the land, and that he could at any subsequent time, sue out a venditioni exponas, and sell the same, and the purchaser thereunder would acquire a good title, against subsequent purchasers. 3 Ired., 256. And in John v. Sedberry, 65 N. C. Rep., it was held that Art. 4, Sec. 25, of the Constitution, which ordains that “ actions at law and suits in equity, pending when this Constitution shall go into effect, shall be transferred to the Courts having jurisdiction, without prejudice, by reason of the change,” applies to judgments. When the plaintiff’s judgment was docketed, therefore, it became a lien on the land, from the docketing, just as judgments obtained since the adoption of the Code. But whether the lien created by a levy, prior to the docketing of the j udgment, is continued by virtue of the docketing, without pursuing it by a ven. ex. or whether a fi. fa. issued on said docket judgment waives the lien created by the levy, has not been determined by this Court, and is the main point here. And it is right here, that the facts appearing upon the record, are defective, in that it does not appear whether the ■execution was a ven. ex. issued upon the previous levy, or simply a fi.fa. issued upon a docketed judgment. Nor does it appear whether the execution was issued by leave •of the Court, and with the formalities required by C. C. P., Sec. 256, where the judgment is of longer standing than three years, which is our case. As both .parties are at fault, in not preparing the case for this Court, as the Code provides, in cases of appeal, the injunction ■cwill be dissolved, the judgment reversed and the case remanded, to the end that it may be proceeded in as the parties may be advised. Injunction dissolved, and judgment reversed and veni/re de inovo. .Pee Cübiam. Venire de novo.