Alsop v. . Moseley

Smith, C. J. The plaintiff’s proceeding assumes that the judgment recovered in the Circuit Court of the United States created liens upon the land allotted as a homestead to the debtor, whose enforcement was suspended during the period of exemption, but now can be, because of its termination and exposure to the claims of the creditors. This is the sole proposition, denied in the ruling below, maintained.here in support of the appeal from that ruling. If these judgments had been rendered in the State Superior Court, and docketed as directed by the statute (The Code, §435), the lien would have attached to the debtor’s estate in the land, and, at the expiration of the period of exemption, it could have been subjected to the debts without obstruction from the running of the statute of limitations meanwhile. Morton v. Barber, 90 N. C., 399, and cases preceding. But, as the judgment did not, proprio vigore, under the former practice, bind the debtor’s property, unless under process issued and acted on by a sale, and then the lien rah back and bound it as against his own attempted alienation, or putting an incumbrance upon it (Jones v. Judkins, 4 D. & B., 454; Harding v. Spivey, 8 Ired., 63), so The Code, in introducing a change and giving a lien to the judgment itself, *64 requires more than a mere rendition to be found in the papers constituting the judgment roll; and to have this effect it must be entered upon the docket as prescribed in section 433, The Code. It may be so docketed in other counties, and thus form a lien upon real estate of the debtor situated therein. The Code, §435. So essential and imperative is the requirement that the judgment be docketed to create a lien, that it was deemed necessarj' to pass the Act of 1881, ch. 75, which provides for the transmission of the substantial elements of a final judgment rendered in this Court to the various Superior Courts, and the docketing therein, in order to attach a lien upon the debtor’s real estate The Code, §436. In like manner, to give the same efficacy to judgments rendered and decrees pronounced in the Circuit and District Courts of the United States, within the State, was passed the Act of 1889, which allows such to be docketed in the several State Superior Courts for the purpose of creating liens upon the debtor’s real estate in such counties, to the same extent as docketed judgments of the said Superior Courts, and requires the Clerks of the last-mentioned Courts to docket such transcripts when presented. This enactment was made to carry into effect an Act of Congress entitled “An act to regulate the liens of .judgments and decrees of the Courts of the United States,” approved August 1, 1888. These enactments not only provide for imparting equal efficacy to judgments recovered in the Federal Courts, as is given by State legislation to judgments in the State Courts, but involves a distinct recognition of the necessity of such additional concurrent legislation to create a lien upon the debtor’s real estate. It follows that, previous thereto, no lien grew out of a judgment recovered in the Federal Courts, and it was incidental to, and associated with, the suing out and consummating the final process for its enforcement under the conditions of the former State law. *65 In Coughlan v. White, 66 N. C., 102, decided soon after the changes introduced in the new Procedure Act, it is held that an execution issuing upon a judgment recovered in a Court of the United States, whose teste over-reached a judgment in the State Court, was entitled to priority in the distribution of the funds realized under a sale and in the Sheriff’s hands. So, in Woodley v. Gilliam, 67 N. C., 237, it was held that a sale by the Marshal, under an execution, whose teste, running back to a judgment in the United States Court, prior to the docketing of a judgment rendered in Tyrrell Superior Court, and d> cketed in the Superior Court of Washington, having preference over the latter, passed the title to the purchaser. These rulings proceed upon the fact that the enactment giving liens to docketed judgments upon the debtor’s land, and superseding the lien created by the issue-of an execution, did not extend to the United States Court, in regard to which the old law still remained in force. This brings us to an examination of the effect of the act of Congress, approved June 1, 1872, entitled “An Act to further the administration of justice,” which, as modified and incorporated in the Revised Statutes, §§915 and 916, is as follows; “Section 915 In common law causes in the Circuit and District Court-!, the plaintiff shall be entitled to similar remedies by attachment, or other process, against the property of the defendant, w'hich are now provided by the laws of the State in which such Court is held for the Courts thereof; and such Circuit or District Court, from time to time, may, by general rules, adopt such State laws as may be in force in the State w'here they are held in relation to attachments and other process: Provided, that similar preliminary affidavits or proofs, and similar security, as-required by such State laws, shall be first furnished by the party seeking such attachment or other remedy. *66 “Section 916. The party recovering a judgment in any common law cause in any Circuit or District Court, shall be entitled to similar remedies upon the same, by execution, •or otherwise, to reach the property of the judgment debtor, as are now provided in like causes by the laws of the State in which such Courts are held, or by any such laws hereafter enacted, which may be adopted by general rule of such Circuit or District Court; and such Courts may, from time to time, by general rules, adopt such State laws as may hereafter he in force in such State in relation to remedies upon judgment, as aforesaid, by execution, or otherwise.” Does this enactment, perforce of its own terms, adopt the State law, or does it require these modifications to be ascertained and introduced by means of rules sanctioned by the ■Courts of the United States into their practice? And does the conferred authority extend to the creating of a judgment lien, irrespective of any process emanating from those Courts, to render it effectual and fruitful in results? The first section, most obviously, is intended to conform the process or mode of proceeding to enforce judgments rendered in the United States Courts to those in use in the State Courts. In terms, it applies to remedies “ by attachment, or other process,” an expression twice used in the section, and clearly limiting its import and operation. The other section is of wider scope, and adopts all remedies afforded by State laws to judgment creditors who have recovered in the State Court, and extends the same to creditors who have recovered judgments, in common law causes, in the Courts of the United States. Not only are existing remedies provided in the several States thus introduced, but the act is expansive, and adapts itself to such as may be provided by future State legislation. Both sections, however, relate to remedial processes, and are intended to harmonize the practice in both jurisdictions, when exercised in the same State. *67 There may arise some doubt in construing the qualifying clause — “which may be adopted by general rules of such Circuit or District Court” — and determining whether the words are restrictive of both preceding clauses, so as to require the adoption by rule before either becomes operative, or whether they are confined to and limit the next preceding clause only, so as to leave to the United States Cojurts to adopt such future State enactments as they might deem .proper. With the divers rules of practice prevailing in different States, it would seem quite as important to designate, in the manner suggested, those appropriate to the United States Courts and the practice therein, already in force in the State, as those which legislation might hereafter introduce in order to their harmonious operation. If this be the true rendering of the act of Congress, it is sufficient to say that no such rules of which we are advised have been made for introducing the new Code practice into that of their Courts. But, if the restriction be understood to apply only to future changes, we do not see how the enactment can reach the question of a judgment lien, when no process is used in these Courts to enforce it, by execution or otherwise. The inquiry is not how far back the lien runs when there has been a sale under final process issuing from a Court of the United States, but whether its existence will be recognized in a proceeding in a State Court to convert lands into assets for the payment of a decedent’s debts. We are not prepared to give such potent and far-reaching effect to this legislation, in the absence of any action of the United States Courts, ascertaining and declaring by rules how far the provisions of the State laws are applicable and can be safely introduced into and change the pre-existing system. The citation from Freeman on Judgments, sections 403 and 404, involves the construction of the Judiciary Act of *68 1789, which by express words adopted the then existing practice in the State Courts, continued in the subsequent act of 1792. They settled the general pr nciple that when a lien is created by judgment merely entered in a State Court, it will have the same effect when entered in a Federal Court in like circumstances, and this, whether by interpretation of the common law or introduced by statute, because of the assimilation of the practice under the different jurisdictions exercised in the same territory in order to harmony of action. But no such lien exists in this State by the common law under the former practice, and it results only from a statute which prescribes a condition essential to its existence, and that is, that it be first docketed in a prescribed manner in each county wherein it is to operate. The judgment contained in the roll has no such effect, as decided at the last term in Holman v. Miller, 103 N. C., 118. But, until the recent adopting legislation, the act was inapplicable to the Federal Courts, and to give it efficacy in them, not only would the requirement of the docketing have to be dispensed with, but, in analogy, the lien would have to be co-extensive with the territorial jurisdictional limits of the Court, and become a lien upon the real estate in any of the counties constituting the judicial district. To give it this effect, would be in contravention of the purpose of the act in furnishing information of such liens in any county by an inspection of the Superior Court docket. This would be more than to incorporate its provisions into the practice in the Federal Courts— would in fact be legislation itself The appropriate remedy has been furnished in the late concurring legislation on the subject, and we feel constrained to deny the lien in the present case, and must affirm the judgment. Affirmed.