DEN ON DEMISE OF KINCHEN POWELL & AL. vs. WILLIAM T. BAUGHAM.

Where an execution from a justice of the peace has been levied on land and returned to the County Court, where judgment is rendered for the plaintiff, he may either have an order of sale, under which he can only sell the land levied on, or he may take an execution as in other cases of judgments. A special fieri facias may be added to a venditioni exponas, whenever a fi fia. itself may be sued out.

The cases of Amyett v. Backhouse, 3 Murp. 63, Burke v. Elliott, 4 Ire. 355, and Borden v. Smith, 3 Dev. & Bat. 34, cited and approved.

Appeal from the Superior Court of Law of Northampton County, at the Fall Term, 1848, his Honor Judge BAILEY presiding.

Both parties claim title to the premises under Morris Baugham, who conveyed them to Jesse Blanchard, and he conveyed to the lessor of the plaintiff. On the part of the defendant, it was alleged, that the deed to Blanchard was made in fraud of Morris Baugham's creditors, and the defendant set up a title under a sale and conveyance to him by the sheriff. In support of his title, the defendant gave in evidence the record of a judgment before a justice of the peace against Baugham, and a fieri facias thereon levied on the premises, and returned to the County Court, and, after notice to the debtor, a judgment of the County Court affirming that of the justice of the peace for the debt and costs, and a venditioni exponas thereon for the sale of the premises levied on.

On that evidence the counsel for the plaintiff objected, that the writ of venditioni exponas was inoperative, because the County Court had made no order of sale or any special award of the writ; and of that opinion was the

Powell v. Baugham.

Court and directed the jury to find for the plaintiff. There was a verdict accordingly, and judgment thereon; and the defendant appealed.

B. F. Moore, for the plaintiffs.

Whitaker and W. N. H. Smith, for the defendant.

RUFFIN, C. J. Under the Act of 1794, a venditioni exponas was the only execution, that could be issued from the County Court upon a levy of a justice's execution on land; and that could only be had by the special order of the Court. If satisfaction was not obtained by the sale of the land, the plaintiff was obliged to proceed again before the justice of the peace. That was often a serious inconvenience, and to remedy it, the Act of 1822 was passed to require the Court, on the application of the plaintiff, to enter a judgment there for the debt and costs. It is then added, that, "if by the sale of the land levied on, a sufficient sum shall not be produced to satisfy the judgment, the plaintiff may sue out execution from the Court for the residue in the same way as if the judgment had been originally rendered by the Court." The opinion held in the Superior Court was, that, since that Act, in addition to a judgment for the debt and costs, there must still be a special order of sale to entitle the plaintiff to a venditioni exponas. This Court entertains an opinion to the contrary. No doubt the creditor may still limit his motion to an order of sale; and, if so, he can have nothing but the venditioni exponas. But if he take judgment in Court for his debt and costs, then, ex vi termini, he may have any execution, which under like circumstance he would be entitled to upon any judgment in Court, unless the Act restrains him in some respect; which, we think, is clearly not the case. What, then, is the state of such a case? It is, that the plaintiff has a general judgment for his debt, with a lien on the land levied on for its sat

Powell v. Baugham.

isfaction. The Legislature did not mean to discharge the lien by reason that the creditor took a general judgment instead of an order of sale; and it was, no doubt, to show that such was not the meaning, that the words were added, respecting the sale of the land levied on. It is precisely like the case of a judgment in original attachment; upon which the words of the Act of 1777 are, that "if the judgment shall not be satified by the goods attached, the plaintiff may have execution for the residue ;" and it has always been held that upon such a judgment the plaintiff might either have a venditioni exponas or a fieri facias, though if he take the latter writ the property attached is discharged. Amyett v. Backhouse, 3 Mur. 63. It was to prevent that inference from the judgment's being general in the County Court, that the particular provision was inserted in the Act of 1822, which has been quoted. But, without such special words, the just construction of the Act would have led to the same result. For, the Act is remedial and therefore is to be favourably interpreted; and why should not the creditor be entitled upon such a judgment to any execution, which he would be entitled to upon any other judgment, when there is a lien on particular property? The record shews the debt, and the levy on the land, just as they appear when the levy is returned by the sheriff on a fieri facias; and therefore a venditioni exponas may be sued by the party, according to the course of the Court, without any special award of it in the one case as well as in the other. Indeed, the case is exactly that of a judgment in attachment. In Burke v. Elliot, 4 Ire. 355, the judgment and execution were like those now before us, and the Court said, that, upon a judgment rendered in the County Court for the debt, the creditor, at his election, could have execution against the land levied on, or against the person, or property gen. erally, of the debtor. In Borden v. Smith, 3 Dev. & Bat. 34, it was held, that a venditioni exponas might issue up

Rankin v. Rankin.

on such a judgment. It is mentioned further in that case, as if there were some uncertainty about it, that a fieri facias clause might be inserted in the venditioni exponas. Why any hesitation should have been felt on that point we are now at some loss to say; for a special fieri facias may be added to a wenditioni exponas, whenever a fieri facias itself may be sued out. That upon the judgment in the County Court the plaintiff may immediately have a venditioni exponas, seems necessarily to result alike from the nature of the case and the particular terms of the Act of 1822.

PER CURIAM. Judgment reversed and venire de novo.

JOHN C. RANKIN & AL. vs. THANKFUL RANKIN & AL.

In a probate of nuncupative wills every requisition of the Statute ought to be faithfully observed; and especially the probate will not be good if the next of kin are not cited.

Appeal from the Superior Court of Law of Guilford County, at the Spring Term, 1848, his Honor Judge PEARSON presiding.

This is an application to call in the probate of a nuncupative will of William Rankin, who died in September, 1829, leaving a widow, who is one of the defendants, and two daughters, who were infants. It was on the 22nd of September, reduced to writing in this form: "The nuncupative will of William Rankin, deceased. It was his

Rankin v Rankin.

will and request that the old plantation be sold and the old wagon and still and all the stock that his wife could spare, to pay his debts; and the remainder of the property to be at his wife's disposal; and for her to get one of his or her friends to assist her, or whom she pleases. He mentioned that he was not able to do it himself. William Rankin related these words on the 7th day of September, 1829, and died on the 17th of the same month. TesteSamuel E. Donnell, David Wilson "

At November Term of the County Court of 1829, probate was taken thereof in the following form: "This nuncupative will of William Rankin, deceased, was duly proved in open Court by the oaths of Samuel Donnell and David Wilson, the subscribing witnesses thereto; and it is ordered to be recorded." There was no citation to the children, nor any guardian appointed to defend their interests. At the same time administration with the will annexed was, at the request of the widow, granted to her and John Rankin, a brother of the deceased; and after the payment of the debts, Mrs. Rankin continued in possession of the estate, consisting of eight slaves, stock, household furniture, and other things, claiming them as her own under her husband's will. Her daughters likewise lived with her until their marriages, which took place while they were respectively under age; that is to say, that of one of them, Hannah, to John C. Rankin, in December, 1833, and that of the other, Nancy, to Thomas Rankin, in December, 1840. Hannah had four children and died in May 1845; and Nancy had two children and died in April 1844. After the respective marriages, Mrs. Rankin gave to each of her daughters some slaves by parol and put them into the possession of their husbands. But after the deaths of the daughters differences took place between that lady and her sons-in law, and she brought actions of detinue against them and recovered the negroes. They then administered on the estates of