Opinion · Supreme Court of North Carolina
Briley v. . Cherry
13 N.C. 2
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1828-12-05
- Topic
- general
FROM PITT. The plaintiffs then produced the record of a recovery made by them as executors, in an action of detinue brought for the same slave against Jackson, under whom the defendant claimed, and proved that the sale to the defendant was made during the pendency of that suit. DANIEL, J., instructed the jury that the record produced by the plaintiff of the verdict and judgment obtained by them against Jackson for the negro in controversy was not any evidence to impair the title of the defendant to the slave, as the latter was neither party nor privy to the record; and that the fact that the action against Jackson was pending at the time of the defendant's purchase of the slave, yet the judgment therein did not make the defendant such a privy under Jackson as estopped him from showing that the plaintiff's testator *Page 3 had no title to the slave, but that the defendant was at liberty to show that the title to the slave was in Jackson at the time of the purchase made by him. A verdict being returned for the defendant, the plaintiff appealed. A verdict and judgment in an action of detinue are conclusive as to the title between the parties and their privies.
Citator
UpLaw has not yet analyzed Briley v. . Cherry. The absence of a flag is not a finding that it is good law.
- Cited by
- 2 opinions
2. Where, pending an action of detinue for a slave, that slave was sold at execution sale as the property of the defendant, a subsequent recovery in that action is not evidence of title in another, brought against the purchaser at sheriff's sale.
3. What is the effect of a judgment of detinue,Quere?
DANIEL, J., instructed the jury that the record produced by the plaintiff of the verdict and judgment obtained by them against Jackson for the negro in controversy was not any evidence to impair the title of the defendant to the slave, as the latter was neither party nor privy to the record; and that the fact that the action against Jackson was pending at the time of the defendant's purchase of the slave, yet the judgment therein did not make the defendant such a privy under Jackson as estopped him from showing that the plaintiff's testatorPage 3had no title to the slave, but that the defendant was at liberty to show that the title to the slave was in Jackson at the time of the purchase made by him.
A verdict being returned for the defendant, the plaintiff appealed.
Privies in estate are those who come inunderthe owner, and the estate stands burthened in their hands with those incumbrances (5) created by him before he parted with it. Therefore, if a suit was pending against him for the property when he parted with it, in which there afterwards was a judgment, that judgment relates to the commencement of the suit, and binds subsequent purchasers.
But one who comes in under a sheriff's sale at execution cannot be called a privy, for he is not only clothed with the title of the defendant in the execution, but also with the rights of the creditor, which may be paramount to those of the debtorquoadthe thing sold. It is to his rights also that such purchaser succeeds, and therefore he is not privy in estate to the former owner. The verdict and judgment in this case, therefore, are not evidence against the defendant.
Suppose the plaintiffs had a bill of sale from Jackson, but upon a consideration, quite inadequate, they might recover against him; but abonafidecreditor of his may have an execution levied upon the property conveyed by the bill of sale, and thereby establish a right to it, which would be superior to that of the vendor or vendee, when at the same time, a subsequent vendee of Jackson had no better claim than Jackson himself.
Suppose, again, that after the plaintiffs had sued Jackson in detinue the present defendant had also brought an action of detinue (6) for the same property, and had recovered a judgment and taken possession under it of the property sued for, and then the plaintiff had obtained a judgment against Jackson for the same property; would it be thought for a moment that in a third suit by the plaintiffs against the defendant the plaintiffs' judgment against Jackson would be conclusive evidence against the defendant? It certainly would be considered as a proceeding to which the defendant was not a party, and by which, of course, he ought not to be bound.
In the present case the defendant does not claim under a judgment in an action of detinue, but he claims under a judgment rendered Jacksonininvitum, and an execution which issued upon it.
I think that the charge of the judge below was right, and that the rule for a new trial should be discharged.
PER CURIAM. No Error.Cited: Paul v. Ward,15 N.C. 249;Vines v. Brownrigg,18 N.C. 240;Sanders v. Ferrill,23 N.C. 103;Cates v. Whitfield,53 N.C. 269;Dancyv. Duncan,96 N.C. 116.