Galloway v. . Bradfield

Supreme Court of North Carolina

Galloway v. . Bradfield

86 N.C. 163

CourtSupreme Court of North Carolina

DecidedFebruary 5, 1882

StatusPublished

Cited by2 cases

This text of 86 N.C. 163 (Galloway v. . Bradfield) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Galloway v. . Bradfield, 86 N.C. 163 (N.C. 1882).

Pincite

Opinion

Ashe, J.

In the court below there was a good deal of stress laid upon the questions whether executions had been issued in proper time to keep alive the judgments, and whether proper notice had been given to revive them. We think these questions are aside from the merits of the ease and were altogether immaterial. The principle which ap *166 plies to the distribution of funds received by a sheriff by sale of land under several executions in his hands, has no application to the distribution of the assets of an estate by an administrator. The sheriff looks to the executions for his guide, and the administrator to the priorities of the debts of the estate. When there are judgment liens, as in this ease, the one looks to the exigency of the executions, and the other to the judgments. So far as an administrator is concerned, the executions on a judgment have no effect to create, or perpetuate the lien; as has been repeatedly decided by this court, the office of an execution upon a judgment creating a lien on land is to enforce the lien of the judgment; therefore when it is issued upon a judgment rendered before the death of the defendant, but bearing teste after his death, it is inofficial and has no effect.

The only question in the case is, which of the judgments had the prior lien ; and it was the duty of the administrator to pay these according to their priorities. Judgments fall within the fifth class to be paid. Bat. Rev., ch. 45, § 40. They constitute a class of debts to be paid in its order, but to be paid in that class according to their priorities, which is to be determined by the dates of their docketing, otherwise the creditor who has been the most diligent in obtaining his lien would lose the benefit of his vigilance, which it is the purpose and policy of the law to preserve.

We therefore hold that there was no error in the ruling of the court as to the application of the proceeds of the sale, to-wit, first to the satisfaction of the judgment of Pleasant H. Price; secondly to the satisfaction of the judgments in favor of Mary S. Galloway, and Thomas S. Galloway, pro rata, and the residue; if any, to the judgment of Susan Lemons.

The judgment of the court below is therefore affirmed.

No error. Affirmed.

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Ashe, J.

In the court below there was a good deal of stress laid upon the questions whether executions had been issued in proper time to keep alive the judgments, and whether proper notice had been given to revive them. We think these questions are aside from the merits of the ease and were altogether immaterial. The principle which ap *166 plies to the distribution of funds received by a sheriff by sale of land under several executions in his hands, has no application to the distribution of the assets of an estate by an administrator. The sheriff looks to the executions for his guide, and the administrator to the priorities of the debts of the estate. When there are judgment liens, as in this ease, the one looks to the exigency of the executions, and the other to the judgments. So far as an administrator is concerned, the executions on a judgment have no effect to create, or perpetuate the lien; as has been repeatedly decided by this court, the office of an execution upon a judgment creating a lien on land is to enforce the lien of the judgment; therefore when it is issued upon a judgment rendered before the death of the defendant, but bearing teste after his death, it is inofficial and has no effect.

The only question in the case is, which of the judgments had the prior lien ; and it was the duty of the administrator to pay these according to their priorities. Judgments fall within the fifth class to be paid. Bat. Rev., ch. 45, § 40. They constitute a class of debts to be paid in its order, but to be paid in that class according to their priorities, which is to be determined by the dates of their docketing, otherwise the creditor who has been the most diligent in obtaining his lien would lose the benefit of his vigilance, which it is the purpose and policy of the law to preserve.

We therefore hold that there was no error in the ruling of the court as to the application of the proceeds of the sale, to-wit, first to the satisfaction of the judgment of Pleasant H. Price; secondly to the satisfaction of the judgments in favor of Mary S. Galloway, and Thomas S. Galloway, pro rata, and the residue; if any, to the judgment of Susan Lemons.

The judgment of the court below is therefore affirmed.

No error. Affirmed.

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Bluebook (online)

86 N.C. 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/galloway-v-bradfield-nc-1882.

Opinion

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