Lentz v. Lamplugh

Jan. 3. Gibson, C. J. There is little difficulty in determining that John Lentz had an estate by the will, which might have been bound by a judgment. The gift of a thousand dollars more than a fifth part of the whole real estate, was not a bequest of money, but an implied devise of land, the numerical amount being used only as a measure of quantity. John, therefore, took by implication a fifth part of the real estate, and the worth of a thousand dollars more, either in land or money, charged on the other four-fifths—it is unnecessary to say which. No power was given to sell, except by the unanimous consent of the devisees; and this shows that she intended an estate in the land, and not an interest in the price of it. The features of the case consequently bear no resemblance to those of Allison v. Rankin, or other cases of the stamp. The question is, was it bound ? Previous to his conveyance, a creditor had obtained an award against him under the compulsory arbitration act, which declares such an award “shall have the effect of a judgment against the party against whom it is made, and be a lien on his real estate until such judgment be reversed on appeal.” The Act evidently contemplated reversal^by the party against whom the award was to operate; and when he has reversed [346] it only in part, there is no difficulty in conceiving that the original lien holds for the residue. A more difficult thing would be to determine the consequences of an increase of recovery by the verdict. Would the land be bound for more than the amount of the award in the hands of an intermediate purchaser with notice that an appeal was pending; or would it be liable to execution under the statute of Westm. 2, for no more than bound it when the award was entered ? These are questions which bear no relation to the present. It had not occurred to the legislature that a plaintiff might elect to reverse his own award by appeal, as a plaintiff may elect to reverse his own judgment by word of error; and as they have not provided for such a case, we are to dispose of it according to the principles of the common law. Now when a plaintiff has thus reversed his judgment, he proceeds subsequently by venire facias de novo or writ of procedendo, with exactly the same consequences and effect as if the reversed judgment had not been obtained by him, and he consequently cannot tack the lien which he had by it while it was in force, to a subsequent judgment for the same or a greater sum. He repudiates it by the reversal, and cannot claim advantage from it, for the reason that the law will not allow a party to claim in repugnant rights, or to proceed by inconsistent remedies. It will not allow him to claim by two judgments in the same action, or to reverse his judgment and still claim by it; or to say I will hold by the one and take all I can get by the other. Nothing but the force of a statute could abolish this principle; and the legislature has not applied it. An appeal like the present has the qualities of a procedendo and a successful writ of error combined. The appellant stakes his whole case upon success before a jury, and gives up everything else for the chance of it. Before judgment was obtained in the present appeal, the debtor had conveyed the land in contest, and consequently free from the former encumbrance. This alone is decisive of the title. Judgment reversed.