RodmaN, J.
It is admitted of course .’that the burden is; on the plaintiff to show a title in himself to the land in controversy. This he claims to have done by the following evidence, briefly stated:
A judgment in favor of
Aycock
v.
Harrison,
(former owner of the land,) at August Term, 1861, of Wayne County Court.. An execution issuing thereon levied on the land, which levy was kept alive by subsequent
alias
executions duly issued, from term to term, until under the last of them the land, was sold by Pearce, sheriff of Jones, on the 7th May, 1872,. when plaintiff became the purchaser, and a. deed- from said sheriff to the plaintiff. .
If these were the facts fully and accurately stated, the'case for the plaintiff would be clear. The defendant, however, attempts to break the chain.of the plaintiff’s title by several objections, founded on facts not denied but omitted, from the foregoing statement. These objections we will state and consider in succession. Before doing so, however,, we will dispose of an objection to the plaintiff’s title, which,.
on examination, is seen to be based on a mistake about a date. It was said that the execution under which the plaintiff purchased on 7th May, 1872, was irregular, inasmuch as it was issued from the Superior Court of Jones, whereas it was required'by the Act of 1871-72, chap. 74, to be issued from the Superior Court of Wayne, where the judgment was originally obtained. The Act cited was ratified on 27th January, 1872. Section 3 contains a provision that all executions previously issued from either Court should be valid. The Act, by Bat. Rev., chap. 108, sec 3, went into effect on the twentieth day after its ratification. It is admitted that the execution was issued within that time.
I. The defendant says that although the plaintiff Aycock acquired a lien by his judgment in Wayne, and the subsequent proceedings thereon, which related back to the date of the judgment, (this being identical with the
teste
of the
fieri facias
under whieh the levy was made,) yet this lien was ^waived and lost upon the docketing of the judgment in .Jones County, on 30th of November, 1868, and that thé lien afterwards only had effect from that day. And that in¡asmuch as prior to 30th November, 1868, to-wit, on 10th November, 1868, a judgment in favor of
Foy,
plaintiff, v.
Harrison,
recovered at Fall Term, 1868, of Craven Superior .-■Court, had been docketed in Jones County, this Foy judg-ement had a priority of lien over the Aycock judgment. ,
How it might be if the Aycock judgment
alone
had been docketed in Jones, and without any statement of, or refer- , ence to, the .proceedings.thereupon whicli gave toa
vendi-tioni exponas
issued upon it, a lien relating to the date of the judgment, it is unnecessary to say. For in fact, the tran- . script from Wayne, entered upon the docket in Jones, con- ; tained an abstract of the several writs of execution from time to time, Horn which the relation of the lien back to’ the date of the judgment appeared. The effect of this state-;.m.ent-,was to inform, all concerned of the prior date of the
lien, and to preserve its priority. So that the Aycock judgment, although docketed after the Foy judgment, continued to have a priority over that judgment, and so far as appears over all others.
II. Defendant contends that D. D. Colgrove acquired a title to the land by his purchase at the sale by sheriff Col-grove on 2d January, 1869. His argument is :
1. That the sale on the same day at which the plaintiff bid off the land, was avoided by the failure of the plaintiff to comply with the terms by paying the amount of his bid.
2. That upon such failure the sheriff had a right to resell immediately.
8. That the sheriff had a right to re-sell, and did in fact re-sell, both under the Aycock and the Foy executions.
4. That whether he actually sold under both, or under the Foy execution alone, the sale, when completed by a deed, as it was, passed the title of the defendant in the land to D. D. Colgrove, the purchaser — free from any lien or in-cumbrance.
5. Consequently, the subsequent sale under the Aycock execution on 7th May, 1872, when plaintiff purchased and obtained a deed, passed nothing, there being no estate left in the defendant on which it could operate.
On consideration of these propositions, the following observations have occurred to us:
1 and 2. It is plain that the plaintiff acquired no title to the land by his supposed purchase on 2d January, 1869, because he never obtained a deed. By a rule on the sheriff to which all persons in interest were made parties, and upon proof that the Aycock execution had priority over all others then in the sheriff’s hands, and that he (the present plaintiff) was authorized to apply his bid as a payment
pro tanto
on that execution, he might have obtained an adjudication of the Superior Court of Jones to that effect, and an order to the sheriff to enter such payment on the execution, and
to make a deed to the plaintiff, in which case the deed would have related back to the sale, and would thereby have avoided the sale to Colgrove.
Festerman
v.
Poe,
2 Dev. & Bat., 103. This is substantially what was held in
Isler
v.
Andrews,
66 N. C. Rep., 552. See also Herman on Executions’ sec. 211, p. 325, and cases there cited.
A sheriff who sells under execution
may
take on himself to decide which one of several executions in his hands is entitled to priority of payment out of the purchase money. But such decision would be at his peril, and he is not required to make it. •
It may appear clear to us now that Aycock, or the present plaintiff as his representative, was entitled to priority of payment. But it was a question not settled, and doubtful at the time of the sale in 1869, and the sheriff was entitled to payment of the plaintiff’s bid, or to an adjudication of the Court establishing his priority, and in default thereof could re-sell immediately . See
Grier
v.
Yontz,
5 Jones,
371; McKee
v.
Lineberger,
69 N. C. Rep., 217. What is said on this point in
Grier
v.
Yontz,
is in relation to a sale of personal property, but it is equally applicable to a sale of real estate.
III. Under what executions did the sheriff re-sell ? A plaintiff who has put an execution in the hands of a sheriff may withdraw it before it is so acted on that its withdrawal would be injurious to third parties. He may equally direct the sheriff not to act on it, which would be equivalent to withdrawing it. What the plaintiff in this case said and did after the sheriff refused to credit his bid on the execution, can be understood only as a direction to the sheriff to proceed no farther under the Aycock execution, which he claimed to be
functus officio.
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RodmaN, J.
It is admitted of course .’that the burden is; on the plaintiff to show a title in himself to the land in controversy. This he claims to have done by the following evidence, briefly stated:
A judgment in favor of
Aycock
v.
Harrison,
(former owner of the land,) at August Term, 1861, of Wayne County Court.. An execution issuing thereon levied on the land, which levy was kept alive by subsequent
alias
executions duly issued, from term to term, until under the last of them the land, was sold by Pearce, sheriff of Jones, on the 7th May, 1872,. when plaintiff became the purchaser, and a. deed- from said sheriff to the plaintiff. .
If these were the facts fully and accurately stated, the'case for the plaintiff would be clear. The defendant, however, attempts to break the chain.of the plaintiff’s title by several objections, founded on facts not denied but omitted, from the foregoing statement. These objections we will state and consider in succession. Before doing so, however,, we will dispose of an objection to the plaintiff’s title, which,.
on examination, is seen to be based on a mistake about a date. It was said that the execution under which the plaintiff purchased on 7th May, 1872, was irregular, inasmuch as it was issued from the Superior Court of Jones, whereas it was required'by the Act of 1871-72, chap. 74, to be issued from the Superior Court of Wayne, where the judgment was originally obtained. The Act cited was ratified on 27th January, 1872. Section 3 contains a provision that all executions previously issued from either Court should be valid. The Act, by Bat. Rev., chap. 108, sec 3, went into effect on the twentieth day after its ratification. It is admitted that the execution was issued within that time.
I. The defendant says that although the plaintiff Aycock acquired a lien by his judgment in Wayne, and the subsequent proceedings thereon, which related back to the date of the judgment, (this being identical with the
teste
of the
fieri facias
under whieh the levy was made,) yet this lien was ^waived and lost upon the docketing of the judgment in .Jones County, on 30th of November, 1868, and that thé lien afterwards only had effect from that day. And that in¡asmuch as prior to 30th November, 1868, to-wit, on 10th November, 1868, a judgment in favor of
Foy,
plaintiff, v.
Harrison,
recovered at Fall Term, 1868, of Craven Superior .-■Court, had been docketed in Jones County, this Foy judg-ement had a priority of lien over the Aycock judgment. ,
How it might be if the Aycock judgment
alone
had been docketed in Jones, and without any statement of, or refer- , ence to, the .proceedings.thereupon whicli gave toa
vendi-tioni exponas
issued upon it, a lien relating to the date of the judgment, it is unnecessary to say. For in fact, the tran- . script from Wayne, entered upon the docket in Jones, con- ; tained an abstract of the several writs of execution from time to time, Horn which the relation of the lien back to’ the date of the judgment appeared. The effect of this state-;.m.ent-,was to inform, all concerned of the prior date of the
lien, and to preserve its priority. So that the Aycock judgment, although docketed after the Foy judgment, continued to have a priority over that judgment, and so far as appears over all others.
II. Defendant contends that D. D. Colgrove acquired a title to the land by his purchase at the sale by sheriff Col-grove on 2d January, 1869. His argument is :
1. That the sale on the same day at which the plaintiff bid off the land, was avoided by the failure of the plaintiff to comply with the terms by paying the amount of his bid.
2. That upon such failure the sheriff had a right to resell immediately.
8. That the sheriff had a right to re-sell, and did in fact re-sell, both under the Aycock and the Foy executions.
4. That whether he actually sold under both, or under the Foy execution alone, the sale, when completed by a deed, as it was, passed the title of the defendant in the land to D. D. Colgrove, the purchaser — free from any lien or in-cumbrance.
5. Consequently, the subsequent sale under the Aycock execution on 7th May, 1872, when plaintiff purchased and obtained a deed, passed nothing, there being no estate left in the defendant on which it could operate.
On consideration of these propositions, the following observations have occurred to us:
1 and 2. It is plain that the plaintiff acquired no title to the land by his supposed purchase on 2d January, 1869, because he never obtained a deed. By a rule on the sheriff to which all persons in interest were made parties, and upon proof that the Aycock execution had priority over all others then in the sheriff’s hands, and that he (the present plaintiff) was authorized to apply his bid as a payment
pro tanto
on that execution, he might have obtained an adjudication of the Superior Court of Jones to that effect, and an order to the sheriff to enter such payment on the execution, and
to make a deed to the plaintiff, in which case the deed would have related back to the sale, and would thereby have avoided the sale to Colgrove.
Festerman
v.
Poe,
2 Dev. & Bat., 103. This is substantially what was held in
Isler
v.
Andrews,
66 N. C. Rep., 552. See also Herman on Executions’ sec. 211, p. 325, and cases there cited.
A sheriff who sells under execution
may
take on himself to decide which one of several executions in his hands is entitled to priority of payment out of the purchase money. But such decision would be at his peril, and he is not required to make it. •
It may appear clear to us now that Aycock, or the present plaintiff as his representative, was entitled to priority of payment. But it was a question not settled, and doubtful at the time of the sale in 1869, and the sheriff was entitled to payment of the plaintiff’s bid, or to an adjudication of the Court establishing his priority, and in default thereof could re-sell immediately . See
Grier
v.
Yontz,
5 Jones,
371; McKee
v.
Lineberger,
69 N. C. Rep., 217. What is said on this point in
Grier
v.
Yontz,
is in relation to a sale of personal property, but it is equally applicable to a sale of real estate.
III. Under what executions did the sheriff re-sell ? A plaintiff who has put an execution in the hands of a sheriff may withdraw it before it is so acted on that its withdrawal would be injurious to third parties. He may equally direct the sheriff not to act on it, which would be equivalent to withdrawing it. What the plaintiff in this case said and did after the sheriff refused to credit his bid on the execution, can be understood only as a direction to the sheriff to proceed no farther under the Aycock execution, which he claimed to be
functus officio.
To permit the sheriff to proceed to re-sell, under that execution, would have been to waive his claims as purchaser, which it is plain he did not intend to do. The sheriff, therefore, had no right to re-sell
under the Aycock execution, which was, in effect, taken out of his hands. And it appears that in fact he did -not-sell under it, for in his deed to Colgrove, he reeites that he sold under the Foy execution, and refers to no other.
That the sheriff still held the Aycock execution in his hands, and that it was not actually taken from him cannot make any difference, if he had been directed not to re-sell under it, and in fact did not resell under it.
Seawell
v.
Bank of Cape Fear,
2 Dev., 279.
IV. Taking it then that the sheriff sold under the Foy execution alone, what did the purchaser at that sale acquire?
The rule expressed in
Haliburton
v.
Greenlee,
72 N C. Rep., 316, is considered applicable.- In that case it is said
:
If a sale of land is made under a junior docketed judgment, the purchaser buys in effect only an equity of redemption ; that is the title to the land on paying off the prior liens.”
It is argued, however, that this case is not applicable, because in it there were two judgments docketed at different dates, and priority is expressly given by statute to the senior one, whereas in this case the Foy judgment was first docketed, and the prior lien of the Aycock judgment is a consequence of the law existing before the Code, and which was superseded by it. We do not consider that the Legislature intended to destroy antecedent Hens, or that it could constitutionally do so. Perhaps it was not necessary to docket the Ajmock judgment in Jones County at all. Its being docketed there in the form in which it was docketed, did no harm. The principle of the decision cited is not so narrow as is supposed by counsel; The reason of it reaches to every case of sale under a junior lien. It is immaterial how the prior lien was created, whether by mortgage, prior docketed judgment, or by execution and levy. The priority of lien is of the essence, the mode of its creation only an incident. It seems to us impossible to come to any other conclusion without injuriously affecting the prior lien. To
change it from a lien upon the land to a lien on the proceeds of the sale, would be injurious.
Y. Colgrove was entitled to the land on paying off the Aycock execution, and he was entitled to a reasonable time for this purpose. Having permitted this time to pass without redeeming, the plaintiff was entitled to sell the land. This was held in
Haliburton
v.
Greenlee.
By his purchase the plaintiff acquired the title of the defendant in the execution, and is entitled to the possession against all persons coming in under him.
Per Curiam. Judgment affirmed.