Hargrove v. De Lisle

Morrill, C. J. Suit was brought by plaintiff to recover possession of, as well as to try the title to a certain tract of — 176 — land in the county of Harrison. Both parties claim title from one Bradfield, who was the owner of the land in controversy. Plaintiff claims title by virtue of a deed of the United States marshal, dated 2d of July, 1867, and also a sheriff’s deed, dated 7th of April, 1868. The marshal’s deed was based upon a judgment of the United States Court, rendered 9th of November, 1860, in favor of Seaman, Peck & Co. v. Bradfield, for $1420foo- An execution on said judgment issued 20th of November, 1860, a levy made on the property on the 19th of December, 1860, and a re-levy on the 5th of February, 1861. A second execution', on the same judgment, issued 21st of May, 1867, a levy made on the 26th of May, 1867, and sale 2d of July, 1867. The sheriff’s deed was based upon a judgment in favor o Coleman & Co. v. Bradfield, in the District State Court of the county of Harrison, on the 23d of October, 1860, for $2169iJtf¡> which was recorded in the office of the clerk of the County Court of Harrison county, on the 8th of November, 1860. Execution issued thereon on the 9th of March, 1867, a levy made 17th of March, and a sale by sheriff to plaintiff on the 7th of April, 1868, for $2005AV The defendant’s title was a deed from Bradfield to him, dated 2d of February, 1864, to the land, for the consideration of $15,000, and recorded and possession given. By the act of 14th of February, 1860, a lien before that time created by a judgment of a court of record, upon the real estate of a judgment debtor, was made effectual by having the judgment recorded in the office of the county clerk of the county, which created a lien for four years. As the judgment of Coleman & Co. v. Bradfield was recorded on the 8th of November, 1860, a lien was created which did not terminate until the 8th of November, 1864. And since the defendant purchased the property, on the 2d of February, 1864, being eight months before the expiration of the lien, he is chargeable with constructive notice of this lien at the time of his purchase. He is also chargeable with notice of the laws — 177 — then in force suspending all laws for the collection of debts till six months after the close of the war, or twelve months after a treaty.of peace between the Confederate States and the United States, or until otherwise provided by law. (Dig., Art. 5125.) When Governor Hamilton, as the agent of the commander-in-chief, took possession of the State, on the 26th of September, I860, he forbid the collection of debts by execution. The Convention that met in 1866, on the 2d of March, passed an ordinance staying all executions till the adjournment of the first Legislature; and the Legislature passed an act regulating the collection of debts, the effect of which was to defer the collection of debts; and till this court, by a judgment rendered at Galveston in February, 1868, declared the unconstitutionality of this act, an execution could not issue upon the judgment of Coleman & Co. Coleman & Co. obtained an execution on the-of March, 1868, which was the earliest practicable period. They may be chargeable with neglect in not having the judgment retranscribed at the end of the four years from the 8th of ¡November, 1860. But it does not become the defendant, or does it lay in his power, to charge them with negligence. He had acquired all the title that Bradfield had in the land more than six months before the lien expired by the registration. He bought the land subject to the lien that rested on it for the payment of the debts of Coleman & Co., and placed himself in the position of Bradfield, his creditor and the judgment debtor. We now pass to the other judgment of the Federal Court, where the marshal levied on the property in February, 1861. It was taken into the custody of the law, there to remain till the judgment in the Federal Court was paid. The marshal’s duty was to proceed to sell the property, and by law the sale would take place on the first Tuesday of March, 1861. We will not assume to be judicially, historically or experimentally ignorant of what every one, both old and young, knows; that on tiie 2d of March, 1861, a convention of men, assuming to. act for all the people of the State, declared that Texas was no — 178 — longer a part and parcel of the United States; that from that time till the summer of 1865, he would have atoned for his rashness by the forfeiture of his life, who would have attempted to enforce any process emanating from the courts of the United States in Texas. And we judicially know that the war was not officially proclaimed at an end by the President of the United States till the 20th of August, 1866. In nine months from this time a second execution was issued by virtue of the judgment in the Federal Court, and the marshal brought into activity what had been in abeyance in consequence of the war for six years. The records of his office apprized him that a previous levy on a former execution of this judgment had never been set aside, abandoned or prosecuted. And he well knew the cause; and he further knew that he was bound to exhaust the levy already made before he could make another. The interests and well being of society require of all men obedience to the laws; and in order that laws may be executed, and courts of justice be effectual, the law imputes to every citizen a knowledge of what takes place in the courts of record in many instances. When the levy on the land in controversy was made by the officer of the United States Court, a lien was ipso facto created by the levy for the payment of the debt, and in order that the courts shall not be impeded or frustrated, every one is required to know tlieir acts and doings, and if he does not have actual knowledge, he is presumed to have constructive knowledge thereof, which is equivalent. The defendant in this case can be regarded in no other light than as having information of the levy on the land, and of the lien created by the levy, and he is therefore charged with having purchased the land knowing it was liable to pay the debt of Seaman, Peck & Co., and he in fact is substituted, so far as the land is liable, to pay the debt to his vendor. Since the plaintiff claims the land under both judgments it as unnecessary for us to decide the comparative superiority of — 179 — these judgments: if the sale made by virtue of either is valid in comparison with the title of defendant, it will be decisive of the points in controversy. When Coleman & Co. recovered their judgment against Bradfield in the District Court, on the 23d of October, 1860, for $2169 tVo-, and caused it to be registered in the office of the •clerk of the County Court of Harrison county, on the 9th of ¡November, 1860, they thereby gave information to every one that all the real estate of Bradfield, situate in the county of Harrison, w'as held liable to pay this judgment from and after the 9th of ¡November, 1860, for four years. By these proceedings, Bradfield himself legally executed a mortgage upon all his real estate situate in Harrison county, subject to execution, and particularly the land in controversy, wherein and whereby he authorized Coleman & Co. to cause the land to be sold at sheriff’s sale, at any time during the four years succeeding the 9th of November, 1860, for the payment of their debt, and this mortgage legally was shown to the defendant, DeLisle, at and before the time he purchased the land of Bradfield. DeLisle, the defendant, legally knew, on the 2d 6f February, 1864, that the land was held liable to pay the Coleman debt, and he also knew that since the 7th of December, 1861, Coleman & Co. had not been able to have execution on said judgment, and would not be able till statutes should be passed authorizing them so to do. He purchased the land with a full legal knowledge of the incumbrance on it, and received no better title than the grantor had to convey. And since the land, at the time of his purchase, was liable to be levied on and sold to pay the Coleman debt, as soon as by the statutes or laws it should be practicable, it ivas not divested of this liability by-the sale. Whatever onerous conditions legally attached to the land and were legally known to the purchaser remained; and if, when the execution was levied in 1868, the land would be liable to pay the debt if the sale had not been made, it was still liable. Had the defendant purchased the land after the 8th of November, 1864, and previous to the levy in 1868, he might — 180 — have had some pretense that he was a purchaser without notice-of the encumbrance on it, and a different question would have been presented. The only object in recording a judgment is to-give notice to purchasers to beware. So far as the defendant is concerned, his property would be liable under any circumstances to pay a valid judgment, and, as before stated, the purchaser in this instance occupies no better status than his-vendor. The following authorities amply sustain the positions-assumed: (Robertson v. Green, 6 Howard, Miss., 223, 228 ; Locke v. Coleman, 2 Monroe, Ky., 14; Vincent v. Perry, Harper,. S. C., 388 ; Henry & New v. Champion, 11 Humphrey, 569, 571; Holberson v. Harrall, 19 Ala., 753; De Vendall v. Hamlin, 27 Ala., 156; Mercein v. Burton, 17 Texas, 207; Green v. Allen, 2 Washington C. C., 281; Burger v. Loyd, 3 Salkeld, 145; Dodge v. Casey, 1 Miles, 13 ; Sames v. Alexander, 3 Yates, 268.) This case is cited in 3 U. S. Dig., 378, § 492 ; Robinson v. Green, 6 Howard, Miss., 223; Locke v. Coleman, 2 Monroe, 12; Smith v. Early, 4 Howard, Miss., 178; Vincent v. Perry, Harper, S. C., 388; Turner v. Lawrence, 9 Ala., 426; Talbot v. Melton, 9 Smeeds & Marshall, 9 ; Bynum v. Budge, 4 Mass., 155 ; Langdon v. Potter, 3 Mass., 218; Caperton v. Morton, 5 Ala., 217; Barnes v. Billington, 1 Washington C. C., 29; Jackson v. --, 4 McLean, 555; Green v. Cartwright, cited in Sumner v. Moore, 2 McLean, 66; Jackson v. Delaney, 13 Johnson, 550; Reynolds v. Croft, 3 Cains, 271. Wherefore, inasmuch as the inception of each of the titles to the land to plaintiff is of a date anterior to that of defendant’s, and a lien existed on the land for the payment of each of the judgments at the time that defendant DeLisle purchased, of which he had notice; and since it further appears that the creditors of Bradfleld, in each of the judgments, were-not guilty of any neglect or delay in collecting their debts, and that the liens created before the war were not destroyed, though suspended during the war, and were revived and in full force at the time of the respective levies after the war, and that, — 181 — by tlie sale of the land by the officers of the courts .to 'the plaintiff, he required titles paramount to the title of defendant; •it is, therefore, considered that the judgment of the District Court be reversed. And this court proceeding to give such judgment as the District Court ought to have given, it is ■ordered that the plaintiff have and recover of the defendants, L. C. DeLisle, and —. —. Witherspoon, the land set forth in the petition, viz: -, and also the sum of-, being the amount due for the rent and occupation thereof, and also •all costs in this and the District Courts expended, and this decision be certified to the District Court for observance. Reversed and rendered. — 182 — I