Isam v. Hooks

McCay, Judge. We do not think there was any abuse of the discretion granted by law to Judge Clark. It was his duty to look into the whole case, and if, in his judgment, justice required the parties to be kept in statu quo until the hearing, to grant the injunction. As to all these parties, except Mayo, there are suspicious circumstances that justify further and clearer inquiry; and as the Judge has thought it wise to stop them, we think it is our duty not to interfere. In this State there is never any actual taking possession of land in a levy. The entry on the fi.fa. by the levying officer is the levy. This is an official assertion by him of his appropriation of the land to the plaintiff’s judgment. To constitute a levy there must be a seizure by the sheriff. In personal property this is done by taking possession. In this State, though the process used is a fieri facias, the universal practice has been for many years, not to take possession, but .to make the levy by entry on the fi. fa. and give notice to [315] the person in possession. We are inclined to hold that notice was necessary to make the levy complete; but the language of the Code (section 3595) implies that the levy is made before the notice. If the entry is the levy, this land was not legally sold. It was not advertised the thirty days required by law after the levy; and even Mayo knew of this. We are not sure he would not be bound to know it, since the levy is a part, and a necessary part, of the authority to sell. Judgment affirmed.