
    ABRAHAM SPENCER vs. FRANK HAWKINS & AL.
    Where a series of executions issue on the same judgment, and have been hona fide acted on, the last of them relates to the teste of the first and binds the property of the defendant from that time.
    But where the original, or any intermediate writ of execution, never was delivered to the sheriff, the lien is not carried back beyond the one on which the sheriff acted.
    Where an original ft. fa. issues to one county, and an alias to another, a sale by the defendant of his property situated in the latter, while tile fi. fa. was in the hands of the sheriff of the former, is good.
    Whether a trustee had authority or not, under a deed of trust for the payment of debts, to make sale of personal property, his sale, acting in the capacity of trustee and in the presence and acquiescence of the cestui que trust, would give a good title, at least in equity.
    Where an execution, though made out, does not appear to have been issued by the clerk, it creates no lien.
    The cases of Palmer v. Clark, 2 Dev. 354, Hardy v. Jasper, 3 Dev. 158, and Freeman v. Hill, 1 Dev. and Bat. 9, cited and approved.
    Cause transmitted by consent from Granville Court of Equity, at tlie Spring Term 1846.
    The following facts appear upon the pleadings and proof:
    The bill charges that the, defendant, Hawkins, advertised for sale, as trustee of the other defendant, a number of negroes : that the plaintiff attended the sale, when a negro woman named Daphne and her infant child were offered: that he became the purchaser. That, when she was put up, she was proclaimed by Hawkins in the presence of Jones, who was present assisting in the sale, to be a healthy, sound negro : that he found that she was-unsound, with a chronic rheumatism, under which he charges she has been laboring for many years, and which was known to the defendant Jones, the owner, and that,in consequence of such disease, she was utterly worthless. The bill further charges, that by the purchase of the plaintiff from the defendant Hawkins, no title passed to him as the negro Daphne and her child were not named in the deed of trust; and, further, that the negroes were taken out of his possession by the sheriff of Granville, and one G. O. Wiggins a constable of said county, as th© property of Jones and liable to his debts, and to Satisfy certain executions in their hands. One issued upon a ■ judgment in tho County Court of Franklin, at December term, 1841, of that Court, and which had been regularly issued down to June term, 1843, and also upon a judgment obtained in Granville County Court at August term, 1842, upon which executions had been regularly issued, until levied upon Daphne and her child, and who were sold under them. The deed of trust was executed on the 19tb of February, 1842, and duly registered the 21st, two days after, and the sale was made by Hawkins in March, 1842. The bill prays the contract may be rescinded.
    The defendants severally answer, admitting the sal© of Daphne and her child by the defendant Hawkins, and i in the presence and with the approbation of the other defendant, Jones. They both deny that Daphne was unsound, but on the contrary, both aver, that at the time of the sale and while in the possession of Jones, she was a sound, healthy negro. They admit that Daphne and child were not included in the deed of trust, but they wer© both, at the time of the sale, under th© full belief they were included. But they aver that the sale, being mad© by Hawkins in the'presence of Jones and by his direcrection, was made by the latter, and the plaintiff acquired by buying and securing the price, a good and valid title. They further deny, that, at the time of the sale by Plaw-Itins, there were any executions against, Jones which bound his property.
    Replications were taken to the answers, and the cause set for hearing and transmitted to this Court.
    
      Badger, for the plaintiff.
    No coun,sel for the defendants.
   Nash, J.

Before proceeding to the main questions in the cause, we will dispose of the objections, made by the plaintiff, to the title from the executions, binding the property. It is admitted in the deed of trust, that up to the sale then made by Hawkins, the title to the property was in the defendant Jones, and liable to the payment of his debts. The sale by Hawkins was a sale by Jones; it was in bis presence and by his directions. Had Jones the power at the time to make a valid sale of them ? At December term, 1841, of Franklin County Court, a judgment was obtained against Jones and others, in favor of Mcllvain and others, upon which an execution issued directed to the sheriff of Franklin, Jones being a citizen and resident in the county of Granville. This execution was returned to March term, 1842, of Franklin County Court, by the sheriff of that county, as “ delayed by the plaintiff'.” From March an alias fi. fa. issued, directed to the sheriff of Granville, and returnable to the ensuing. June term, but there is no evidence it ever was sent to the sheriff of Granville, or was ever in his hands. ■ The record of Franklin Court states, “ upon which there appears no indorsement by the sheriff.” From June term, a pluries fi. fa. issued to the sheriff of Granville, which is returned “ executed, &c.” Before this last execution bears teste, the negroes had been sold by Hawkins, to-wit, on the 19th of March,'1842. When a series of executions issue on the same judgments, and have been bona fide acted on, the last of them relates to the teste of the first and binds the property of the defendant 'from that time. But when the original or any intermediate writ never was delivered to the sheriff, the lien is not carried back beyond the one on which the sheriff acted. Palmer v. Clark, 2 Dev. 354. And when an original fi. fa. issued to one county, and an alias to another, a sale by the defendant of his property, situated in the latter county, while the fi.fa. was in the hands of the sheriff of the former, is good. Hardy v. Jasper, 3 Dev. 158. Here there is no evidence that the alias ever left the clerk’s office of Franklin — it was then, as to the question now before us, as if it never had been made out by the clerk. The first precept, that came to the sheriff of Granville, was the pluries, and that issued from the June term, 1S42. In the March preceding the negroes had been sold. As to the execution in favor of Cooper, it bore teste of August term, 1842, subsequent to the sale by five months. These are the Court executions, under which the negro Daphne was taken out of the possession of the plaintiff and sold. The child of Daphne was taken by G. C. Wiggins, as a constable, under an execution in favor of one Gaylard, issued by a magistrate on the 3d of March, 1843. So far then as these executions were concerned, the sale under them did not divest the plaintiff, Spencer, of the title he had acquired by the sale to him. Hawkins professed to sell as a trustee of Jones, and in that character, conveyed the negroes to Spencer. Jones was present, assenting to and directing the sale. Under the deed of trust, Hawkins had no power to sell. If then, Spencer did not acquire a legal title, he acquired such an one as this Court would protect. Jones would not be permitted to set up any title in himself. If Jones still had the legal title, it was a title without an interest, and a Court of Equity would compel him to convey to the purchaser. The purchasers at the sale made by the sheriff of Granville and the constable, Wiggins, acquired only the right which was in Jones at the time of the sale with all his liabilities. Freeman v. Hill, 1 Dev. & Bat. 9. The main question, however, in this case, is as to the soundness of the negro Daphne —alledged by the plaintiff and positively denied by the defendants. Has the plaintiff made out his allegation ? The allegation in the bill is, that the negroe Daphne was, at the time he purchased her, unsound, and that Jones knew it. It is not sufficient for him to show her unsound. The testimony, taken by the plaintiff, with the exception of those witnesses, who speak of her in the year 1834, while in the possession of Shelling Parish, consists principally of opinion. In that year she was sick for a month, and complained of pains in her limbs. Dr. Royster, who attended her, thought at first it was a spinal affection, but at length considered it rheumatic and chronic. Drs. Herndon and Paschall, from her appearance and from a scar on the back, which they considered the mark of an abscess, are also of opinion she was afflicted with rheumatism of long standing. Dr. Paschall thinks the scar on the back was the consequence of an abscess, formed during her sickness at Shelling Parish’s, and yet neither he nor George Parish, nor Mr. Estis, who knew her while sick there, knew any thing about it. Shelling-Parish says, after her return to his house, she was as healthy :as before she was taken sick. Opposed to this testimony, inconclusive as it is, is the testimony on behalf of the defendants. Willis Loyd knew Daphne from, a child and was overseer for the defendant, Jones, during 1835-7-8, and had been all “’38 and most of the time in the preceding years.” She was' never sick during the time, and did as much work as any hand he had — was considered- sound and healthy. Mrs. Estis lived near - Shelling Parish. The girl Daphne was carried to her house — had a fever — no rheumatism; she has known her from childhood up to 1842 — liever knew any thing the matter — as sound and as likely as any other negro — the defect in her ankles belonged to her family — her mother the same. Mr. Abitt was an overseer of Jones, during the year 1839 and up to the end of 1842. Daphne was one of his hands, and as good a one as he had — never sick during that time. Several other witnesses testify the same. John B. Hicks’ deposition was taken in August, 1844; he states that Daphne was then in his employment, having hired'her for the year — that she .is sound, healthy, and has not been sick during that time, and is an excellent hand and the' strongest but one he saw in lifting. Mr. George Hicks states, that she was, at the time of taking his deposition, a sound healthy negro and an excellent hand. Other witnesses testify that they had seen her in May 1844 and she was apparently sound and healthy. The rest of the testimony for the defendant is of the same character.

The plaintiff’s proofs do not sustain his allegations. It is not proved that the negro Daphne was, at the time of the sale,unsound. Nor is there the slightest testimony, that, if so, the defendant Jones knew it. We are, on the contrary, satisfied from all the proofs, that she was sound. The testimony of Mr. Estis, we think, accounts satisfactorily for the defect in her feet — her mother was so. The fact is proved by one of the witnesses of the plaintiff, Mr. G. Parish. The bill must be dismissed with costs.

Per Curiam.

Decree accordingly.  