
    
      Vance & Davis vs. Red & Young.
    
    1. Plaintiffs purchased a tract of land at Sheriff’s sale, on the 2nd of Jan. 1842, under an execution lodged on the 10th of Nov. 1841, and issuing under a judgment, signed the 6th of Nov. 1841, against defendant, R. who, before the signing of the judgment, had conve. ed the land to his co-defendant, Y. the deed being recorded on the 2nd of Dec. 1841. Before the execution of this deed, one G, R. in Nov. 1840, recovered a judgment against one M. and defendant, R: — execution was lodged in the Sheriff’s office marked “wait orders until May 1842,” and in 1841, assigned to plaintiff V. The consideration of the deed from R. to Y. was, that the latter should pay G. R’s. judgment, and satisfy a debt to himself, the balance to be paid to defendant, R. The stay on the execution was purchased by R. and the plaintiffs were aware of the deed to Y. After the sale by the Sheriff, the defendants offered to pay to him, G. R’s. execution, but that being satisfied by the sale of the land, he did not receive it.
    2. The sale by the Sheriff held good, being supported by the elder judgment, the lien of which was unaffected by the indorsement, “wait orders,” that only amounting to a suspension or withdrawal of the execution.
    3. The contract of defendant, Y. to satisfy the elder judgment, and the actual offer to pay it, after the sale by the Sheriff to the plaintiffs could not alter their vested rights ; their title then being perfected.
    
      Before O’Neall, J. at Spartanburg, Extra Term, August, •1843.
    This was an action of trespass, to try titles to a tract of land.
    The defendant, Scarlet Red, was the owner of the land. It was sold on the 2nd January, 1842, under an execution lodged on the 10th of November, 1341, and issuing under a judgment, signed 6th November, 1841, in the case of JV. R. Eaves vs. Scarlet Red. Before the signing of that judgment, on the 8th July, 1841, Red conveyed tlieland to his co-defendant, Young; the deed was recorded 2d December, 1841. Before that deed was executed, in November, 1840, George R. Ross recovered a judgment against Ephraim. Morgan and Scarlet Red, and execution was lodged in the Sheriff’s office, but was marked “wait orders,” “until May, 1842.” This execution was assigned in 1841, to the plaintiff, Vance. The consideration of the deed from Red to Young was, that Young should pay Ross’ judgment, and satisfy a debt to himself, of $200, and the balance of it to pay to Red. The stay on the execution was purchased by Red, for the. sum of $20.
    The land was sold under Eaves’ execution. The plaintiffs bought, and after the sheriff had sold and conveyed, the defendants offered to pay to the sheriff, Ross’ execution, but as that had been satisfied out of the sale of the land, the sheriff did not receive it.
    The plaintiffs knew of Red’s deed to Young when they bought. The presiding Judge thought that the sale was good as made by the sheriff, although made under a fi. fa. junior to the deed, inasmuch as there was a judgment and execution, older than the deed, and which was satisfied by the sale.
    The plaintiffs had a verdict for the land and their damages.
    The defendants appealed, on the following grounds:
    1. Because the plaintiffs could take no title under the judgment, under which the land was sold, the judgment being younger than the deed of Young, the defendant.
    2. Because the judgment senior to the deed, could not aid the plaintiffs, the same being by the written agreement of the parties, of which the plaintiffs had full notice, inoperative, suspended and of no efficacy against Red’s property.
    3. Because his Honor erred in charging the jury that they might refer the sale to the senior judgment, although the same was in law satisfied, so far as any legal right was involved.
    4. Because the verdict was contrary to law, evidence and justice.
    
      Henry & Bobo, for the motion, II. C. Young, contra.
   Curia, per

Richardson, J.

The only question is, whether the sale made by the sheriff to Vance and Davis, under the judgment of Eaves, can be supported by the elder judgment of Ross. Or, does the endorsement “wait orders,” (fee. suspend the lien, or binding efficacy of that judgment, so as to rest the sale, exclusively, upon the younger judgment, as if the former did not existí

It is of no consequence under what named execution or judgment, the sheriff sells a defendant’s property, the sale is, in virtue of all existing liens of the kind, and every execution gives the practical authority to sell until all are satisfied, and the liens are satisfied successively, in the order of priority of time ; and thus each execution amounts to a venditioni exponas for all the preceeding judgments. But does the indorsement “wait orders,” «fee. lift or destroy the prior lien on the older judgment, like an injunction out of chancery'?

The intention of such an order, is plainly to suspend the active proceeding of the sheriff. It could, at most, amount to a suspension or withdrawal of the execution, not of the lien of the judgment.

But the old case of Snipes vs. The Sheriff of Charleston District, in 1 Bay, 295, and again in Greenwood et al. vs. Naylor, 1 McCord, 414, decides the very case; the binding efficacy of the judgment remains, the active energy only of the execution is suspended, and the money raised, must still go to the first lien.

The contract of Young, to satisfy the elder j udgment to Ross, and the actual offer to pay it, after the sale by the sheriff, to Vance and Davis, could not alter their vested rights. Their title had, then, become perfected.

The court, therefore, perceive no good ground for the motion, which is accordingly dismissed.

O’Neall and Butler, JJ. concurred.

Evans, J.

dissenting. I do not concur in the opinion of a majority of my brethren, and I will state, concisely, the grounds of my dissent. 1. Eave’s fi.fa. was authority to the sheriff to sell only Red’s estate, but Red had no property in this land. He had sold to Young. Under Eaves’ execution, the sheriff then could not sell, and if there were no other authority, the purchaser could take nothing under the sale.

There are a great many cases which decide, that if the sheriff sell under an execution which gives no authority, but at the same time has in his office an execution which does give him authority, the sale shall be referred to that which confers the authority ; but all these cases, hold that he must have some authority which empowers him to sell. Now the sale in this case, cannot be referred to Ross’ execution, because that was stayed, for a limited time, and until the expiration of that time, the sheriff could not enforce it. But it is supposed that the sale is good, because the money has been applied to extinguish the lien of Ross’ judgment, which was older than Young’s deed. I do not think so. As well might it be said, that if the sheriff had sold without any enforcible execution, his sale would be good, because he applied the money to the extinguishment of the liens on the property. The rule seems to me to be this, the sale to be good must be made under a fi.fa. which confers on the sheriff the power to sell, when the money is raised, the law directs its application. But the application of money, has no connection with, and cannot aid a defect in the sheriff’s authority.

2d. Admitting, that in favor of a bona fide purchaser without notice, such a sale might be good, yet as to Vance, the sale would be void for fraud. He was the owner of Ross’ execution, he had notice of the sale to Young, and Ross had, for a valuable consideration, agreed to stay his execution until May, 1842. To allow him to keep the benefit arising from his purchase, in violation of his contract, would be to encourage fraud and dishonesty.

Wardlaw, J. concurred.  