State Ex Rel . Faircloth v. . Ferrell and Others

Settle, J. (After stating the case as above.) Since the case of Green v. Johnson, 2 Hawks, 309, there can be no question, that an execution "bearing the first teste, will be satisfied before one of a younger teste first delivered and levied upon property, which is not sold, before that of the first teste comes to the Sheriff’s hands. But the plaintiff’s execution was doubtless considered void, because it bore teste of Fall Term 1867, and was made returnable to Fall Term 1868, taking no notice of Spring Term 1868, which intervened. In mesne process, if a term be omitted, the writ is void in personal actions; but it is not so in final process. *642 . It' is not necessary, at common law, that a writ of execution should be made returnable to the next term after that in which it is tested; if a term intervene it •> not material. We are not aware that the point has <-.Ter oeen presented before in this State, but we consider ;t determined, upon the authority of Shirley v. Wright, 2 Ld. Raym, 775; especially as this case is cited, with approbation, by so many text writers. 2 Bacon’s Abr, tit Execution, c 1; 1 Archbold’s Pr. 25 Sellon, 551; 2 Tidd, 1028. Our statute, Rev. Code, ch. 31, sec. 50, has no application to executions, (Ledbetter v. Arledge, 8 Jon. 475,) and, in cases where it does apply, is only in affirmance of the common law, for it directs that “ all writs, &c., shall, unless otherwise directed, be returned the first day of the term, to which the same shall he returnable, dec.” Sales made under junior executions, are supported in favor of innocent vendees, and creditors must look to the fund, or to the Sheriff, in case there has been a misapplication of the fund. True, the lien of the first execution may be destroyed by laches or fraud, but it cannot be contended that such is the case here, for doubtless the Clerk of the Superior Court of Green county issued the execution in question under what he supposed to be provisions of the so called Stay Law. We are of the opinion that the plaintiff is entitled to recover. Let it be certified that'there is error, &c. Pee Oubiam. There is error.