Lash v. . Gibson

5 N.C. 266

• Court: Supreme Court of North Carolina
• Decided: July 5, 1809
• Status: Published

Opinion

I/Owkie, Judge,

delivered the opinion of the Court:

We are not surprised that a case should arise circumstanced like the present; but it¡ is not difficult to discover the principles by which it ought to be governed. In every country enjoying a jurisprudence like ours, collisions; of interest like the present will often happen. It is an invariable rule, founded upon the.principles of morality, that every, man ought to enjoy all the fruits of an honest and: laudable vigilance : upon this principle the maxim is bottomed, that the Law favours the vigilant and not the supine. We are therefore of opinion, that the money collected by the Sheriff, on the executions returned in this case, ought to be-distributed according to the priority of the levy of the executions. And even admitting that the judgment of Gibson in the County Court, which is a Court of record, bound the land, the orders of sale are equally judgments of the same Court; and although Gibson may have obtained his judgment earlier in the term than the orders of sale were granted, this will not vary the case, for the whole term is but one day in contemplation of Law. Each execution has a lien upon the land from the time of the levy, and the orders sa{e jia(j re]ation back to the times the levies were actually made; for the Sheriff was not bound, in order to make a sale, to levy the writs of venditicni exponas. By these writs, he was to expose to sale the land already levied on, and thus complete the act commenced by the levy. The judgment of the Court therefore is, that the executions first levied be first satisfied.