Bank of North America v. Fitzsimons

On this day the judges delivered their opinions, as follows: Tilghman C. J. The money brought into court in this case, is claimed by three different parties; by Samuel and William Hibbert, by the Bank of North America, and by William, Lezvis executor of Benjamin Fuller deceased. But the question submitted to the court is, whether the Hibberts are intitled to the payment of their debt. The Bank and the executor of Fuller do not wishtohave itdecided which — 356 — of them is intitled to the preference. It will be sufficient, therefore, to consider, how the case stands between the Hibberts, and the executor of Fuller. This will depend on a single point, that is to say, whether the provision in the first section of the act of 4th April 1798, limiting the lien on real estate, or judgments then m existence, to the term or nve years from the passing of the act, is to be confined to the case of purchasers, or operates also in favour of judgment creditors. The act is intitled “ an act limiting the time during which “judgments shall be a lien on real estate, and suits may be “ brought against the securities of public officers.” The preamble recites, that “ the provision heretofore made by law “ for preventing the risk and inconvenience to purchasers “ of real estate, by suffering judgments to remain a lien for “ an indefinite length of time, without any process to con- “ tinue or revive them, had not been effectual.” By the first section it is enacted, that no judgment then on record, should continue a lien on the real estaté of the defendants, during a longer term than five years from the passing of the act, unless revived by sci.fa. within the said five years. The second section enacts, that no judgment to be thereafter entered in any court of record, should continue a lien for a longer term than five years from the first return day of the term of which it was entered, unless revived by sci.fa. within the said five years. The third section points out the mode in which the sci.fa. shall be served. The plaintiff’s counsel contend that the preamble of the act shews, that purchasers only were in the contemplation of the legislature, and therefore none but purchasers shall derive any benefit from it. In support of this construction a number of cases were cited, establishing principles of which it will be necessary to take notice. The cases may be reduced to the following heads. 1st. Rules for the construction of statutes. 2d. Leases made by ecclesiastical persons. 3d. The statute of inrolments, 27 Henry 8. c. 16. 4th. The statutes concerning the registering of conveyances of real estate. As to the construction of statutes, it is certain they are not always to be construed according to the letter. General expressions may be restrained, where it clearly appears from the whole law, that it was the intention of the legisla — 357 — '-.ture to provide a remedy only for particular cases. Upon this principle the cases which relate to leases made by ecclesiastical persons turned. The statute 13 Elzz. c. 10. s. 3., provides, that all leases &c. for more than twenty-one years or three lives shall be utterly void and of no effect, to all intents constructions and purposes. Yet it has been held, that such leases were good during the lives of the persons by whom they were made, because it was the intent of the legislature only to protect the successors of such ecclesiastical persons. To bring those cases to bear on the point in question, it must be shewn, that it was the clear intent of the legislature to confine the remedy against the lien of judgments, to purchasers of real estate. The cases on the statute of inrolments, and on the registering acts, may be considered in the same • point of view, as they depend on one and the same principle. By the statute of inrolments, no estate of freehold or inhe-' ritance, or any use thereof, shall pass by deed of bargain and sale, unless the deed is recorded in six months from the date. By the registering acts, deeds not registered according to the provisions of the several acts, shall be adjudged fraudulent and void, against any subsequent purchaser or mortgagee for valuable consideration, unless such prior deeds are registered before the registering of the deeds under which such subsequent purchasers or mortgagees claim. Now it is settled that if a purchaser neglects to inrol or register his deed according to the provisions of these statutes, yet his title shall be established, in equity, against a subsequent purchaser who at the time of his purchase had notice of the prior uninrolled or unregistered deed. The reason is, that those statutes were made for the protection of purchasers against secret conveyances, and therefore purchasers with notice, are not within the mischief intended to be remedied. Besides, such purchasers do not act fairly, and it is principally on the ground of fraud, that courts of equity interfere in such cases. It is a fraud for a man who has sold land, to endeavour to circumvent the purchaser and deprive him of his property, because he has been so negligent as not to inrol his deed; and it is fraud for any third person to aid the seller in this circumvention, by making a subsequent purchase. Such subsequent purchaser cannot be called a bona fide pur-/ — 358 — chaser, though he pays the full value' of the land. On the contrary he acts mala fide, because he is party to a transaction by which his neighbour is defrauded. Such are the sentiments of lord Hardwicke in Le Neve v Le Neve, Ambler 446, and the good sense of them is manifest. The plaintiff therefore can make no application of these cases, unless he shews, that the youngest judgment creditor has acted fraudulently towards'the eldest. I will now consider more particularly the act of assembly ©n which the question arises, for after all it is that which must govern us. From its title it appears to be intended as an act of limitation, and that I take to be its true meaning. I cannot agree with th? plaintiff’s counsel, that the only object was, to prevent the injury which purchasers might receive from judgments of which they had no notice, because all judgments are of record, and every man may obtain information of them. But-the lien of old judgments produced great inconvenience to persons who had notice of them. In many cases the plaintiffs had been long dead, or lived at a great distance, and although part, or the whole of the debt had been paid, this did not appear on the record. The mischief waa not confined to purchasers of the real estate bound by the judgment; and that is a very material consideration in investigating the intent of the legislature. It has been a practice of long standing in this state, when the sheriff sells land by virtue of an execution, to sell it for its full value without regard to the lien of judgments, and to apply the purchase money to the discharge of those liens, according to their order. Now great difficulty arose in discharging those liens, for the reasons which I have mentioned. The consequence was, that the sheriff retained the money in his hands till he could ascertain the amount of old judgments, and this was a great injury to judgment creditors in general, as well as a great embarrassment to sheriffs who wished to act honestly, and pay away the money as quickly as possible. The title of the act of assembly is calculated to prevent these mischiefs, and so is the enacting part of the first and second sections. Nothing can be more general or more plain, than the expressions in these sections: “ no judgment shall continue « a lien on real estate during a longer term than five years, — 359 — Unless revived by scire facias.” Why then are these general words to be restricted to the case of purchasers? Because, it is answered, the preamble makes no mention of inconvenience to any but purchasers. I am not satisfied with this reason. The intention must be clear to authorize the restraining of the enacting clauses. I cannot say that the intent is clear, when I find the title more comprehensive than the preamble, and when we all know that nothing is more common than to recite a particular mischief, and to provide remedies for other mischiefs. Will any inconvenience result from construing the general expressions according to their natural import? No, but on the contrary it will promote the public convenience. It may be remarked, that this preamble which is so much relied on, is expressed in very vague terms. It speaks of former provisions by law, in favour of purchasers, which had proved ineffectual, but does not point out what those provisions were, or in what laws they were contained. The plaintiff’s counsel suppose that the former provision alluded to, was made by the act for prevention of frauds and perjuries, 21st March 1772, 1 St. Laws 640, by which, judgments as against purchasers bona fide for valuable consideration do not bind lands, but from the time of their being signed; indeed it has been contended, that the act upon which the question before us arises, is to be considered in the nature of a supplement to the act of frauds and perjuries. This is carrying the matter toó far. When the act in question was made, no doubt there was an eye to the act of frauds and perjuries, and one of my reasons for thinking that the provisions in the former were not intended to be confined to purchasers, is,that the enacting clauses do not soconfineit, whereas the act of frauds and perjuries is expressly restrained to purchasers bona fde for valuable consideration. But the act of frauds and perjuries does not appear to be the only one alluded to, in the preamble of the act in question. A provision was made by the act of 19th April 1794, that purchasers of lands sold by order of Orphan’s Courts, should hold them discharged from liens, and all debts of the intestate, judgments included. By the act of 4th April 1797, debts due from deceased persons (other than debts of record) are not to remain a lien on lands for more than seven years from the decease of the — 360 — debtor, unless certain things are done which are specified in the act. Though this last act does not relate to judgments, yet it serves to shew, in connexion with others, that the current of legislative opinion has been for some years against long continued liens on real estate, from an experience of their inconvenience. Now to bring these observations to a point, we are considering an act of assembly, of which there are two modes of construction. One agreeing with the plain and natural meaning of the enacting words, and the intent expressed in the title, going beyond, but not contradicting the recital in the preamble, and at thé same time the best calculated to promote the public convenience; the other, contrary to the common meaning, and restraining the import of the general expressions of the enacting clauses, in order to comply with the supposed intent manifested in the preamble. I prefer the former construction, and I have considered it fully, not only on account of the importance of the subject, but from my high respect to the Circuit Court of the United States for this district, who have entertained a contrary opinion. I shall always differ from that court with great regret, and particularly in cases which arise on the construction of our own acts of assembly, because there is no superior tribunal by which the law may be settled. , My opinion is that Samuel and William Hibbert are not intitled to any part of the money. Yeates J. gave no opinion, being interested as a stockholder in the Bank of North America. Brackenridge J. “ An act limiting the time during “ which judgments shall be a lien on real estate,” is that part of the title of the act of the 4th April 1798, which respects the present question. The preamble states, “ That whereas the “ provision heretofore made by law for preventing the risk “ and inconvenience to purchasers of real estate, by suffering “judgments to remain a lien for an indefinite length of time “ without any process to continue or revive the same, hath not “ been effectual, therefore,” &c. We are led to inquire, what provision had been made by law in this particular? I find nothing in the act of 1772, intitled an act for the prevention — 361 — ©f frauds &c., that has any relation to the duration of the lien of a judgment, but only to the taking away the fiction of relation, “ to the first day of the term at which it was entered, “ or return of the original, or filing of the bail.” The law of IZúí April 1791,3¿Y. Laws 96. sec. 14., which has been cited, introduces no limitation of a judgment; but, by the preamble to the section, we discover the mind of the legislature, on the mischief of judgments continuing a lien an indefinite length of time: that “ whereas it frequently happens, that judgments “ long remain unsatisfied on record, although the moneys for C! -which these judgments have been rendered are justly dis- “ charged, whereby defendants in such case, as well as the u subsequent purchasers of real property, suffer much vexa- “ tion, and inconvenience, be it enacted,” &c. The provision, under this law, regards the compelling the judgment creditor, at the request of the defendant, to enter satisfaction within eighty days after request made, under penalty of paying “ any sum of money, not exceeding one half of the “ debt or damages” in the judgment. This is the only provision made by law in the case, before the act in question, to the construction of which we now come. To what purchasers shall it be considered as relating? Shall it be to all that acquire an interest in the real estate, whether absolute or special? Is not the one as much a purchaser as the other, though he does not acquire the same interest? A judgment creditor has trusted his money, or money’s worth, and obtained this security. The judgment not being satisfied, he proceeds to carry his purchase, as it maybe called, into effect. Indefinite as to extent in the case of a judgment, it is rendered definite by a levy. The sale by the sheriff, the agent of the- law for both debtor and creditor, in the case of a mortgage or judgment, is for the use of the creditor; and the deed by the sheriff completes the transfer of a property vested in equity before for his use. In the case of the mortgagee, or subsequent judgment creditor, I am not able to see the application of the argument relative to notice. The record of the prior judgment is a lien; aqd notice or not notice, binds. An interest is acquired by the subsequent alienee, mortgagee, or judgment creditor; but — 362 — subject to the prior judgment, whether this alienee morí* gagee or judgment Creditor knows of the prior lien, or does not know of it. If actual notice could be more than constructive here, how shall it be established? By a- copy .of the docket entry served upon the party? But there can be no party prjor to the acquiring an interest; and after acquired, it cannot affect. Constructive notice bound before, as much as actual notice, were it proved. But actual notice that it was not satisfied, is the notice spoken of. This, the record of a judgment, without satisfaction entered, of itself imports. It would introduce a new chapter on the subject of notice, that a judgment was not satisfied, which it purports not to be, until the contrary appears. But it will be said, the owner of the subsequent lien may acknowledge that he knew the former was not satisfied: and what then? There was no dolus malus in him in taking his lien subject, as by the law it was, to the prior. The caveat emptor lies upon the purchaser, and he is subject to the inconvenience of finding out what liens are of record, and the risk of not discovering all; and without the intervention of an act of the legislature, he was subject to the lien, whether he discovered it or not; but in his research it would be his misfortune not to have discovered it. This brings us to the question, has the act of assembly exonerated the property? Can the,legislature be supposed to have intended a dissolution of the lien, so as to exonerate from the prior incumbrance? Will it not be sufficient to construe it as extending to alienations or incumbrances, posterior to the five years? Say a mortgage or a judgment after the five years and before the alienation contemplated, how will it stand with a mortgage or judgment immediately preceding the five years? Will that be subject to judgment No. 1? No. But it will be subject to judgment No. 2, five years not having elapsed on that judgment. But can judgment No. 2 be 'discharged without discharging No. 1 subject to which it was taken? The argument for Hibbert must say no. Then if No. 3, after the five years, is subject to No. 2; and No. 2 is subject to No. 1, No. 3 is subject to No. 1. Exoneration from one, and not the other, is like the Welsh carrier mounting his beast, and taking the cheese upon his own back to lighten the bur363 then. It involves an inconsistency to suppose that the act can look forward only to incumbrances posterior to the five years; and what is there then, in supposing the legislature to intend a limitation to the duration of the lien, and an exoneration of the property to all intents and purposes, more than in any other act for quieting possessions, and limiting the pursuit of titles? A principle of the artificial system of the law gave the lien, and the law may think proper to dissolve it. Omne sohitur eo ligamine quo ligatur. This statute has a retrospective effect, it is true; but there seems to be no constitutional objection justly founded, to the power of the legislature to enjoin such conditions, as may let in the rights of others, whether by accelerating the obtaining satisfaction, or getting an entry of satisfaction made upon the record so that the preceding lien may be out of the way. It is the language of the law, satisfy yourself, or say you are satisfied, that another may come in. Why stand in his way that he cannot tell what to do? Sic utere tuo, ut alienum non Icedas. In order to comprehend the meaning of this act we must look, as I have said, to the law to which it refers; and which is not the act of 1772, which respects the relation of a judgment and nothing more, but the act immediately preceding on this subject, the act of 1791. At common law if a judgment sleep post annum et diem, it is necessary tq revive it by a scire facias, before an execution can issue. This, on the presumption that it is satisfied. By the present act, if a judgment sleep five years, the presumption is considered as arising of its being satisfied, so far as to •exonerate the lien, though it does not annihilate the debt. It still leaves to this a right of recovery, but not as a lien on the real estate. It is impossible that the words of the act can be broader, or embrace more extensively. “ No “judgment now on record in any court within this com- “ monwealth, shall continue alien on the real estate, unless” &c. And section 2, “ No judgment hereafter entered in any “ court of record shall continue a lien on the real estate, unless” See. But why the scire facias, served, as provided insec. 3, “ on. “ the terre,tenants or persons occupying the real estates bound — 364 — “ by the judgment, and also, where he or they can be found, “ on the defendant or defendants, his or their feoffee or “ feoffees, or on the heirs, executors, or administrators of “ such defendant or defendants, his or their feoffee or feoff “ fees; and where the land or estate is not in the immediate “ occupation of any person, and the defendant or defendants, “ his or their feoffee or feoffees, or their heirs, executors, “ or administrators cannot be found, proclamation shall be u made,” &c.? Unless sufficient cause to prevent the same is shewn at or before the second term subsequent to the issuing of such writ, the court shall direct and order the revival of any such judgment during another period of five years, and so toties quoties. Why this? I answer; The object of this act was to get the docket cleared or kept down as to the list of judgments which a purchaser must inspect; and as to which being satisfied or not satisfied, he must inquire. It awakened debtors, for their own sakes, to have satisfaction entered, which in the case of the loss of evidence might not be easy to make out; especially in the case of executors and administrators, who were embarrassed by the claims of priority of lien; for the sake also of those deriving title under the debtor, by alienation from himself immediately, and who were interested in having satisfaction entered on judgments of which they might not have been aware, or which had been represented to them as having been in fact satisfied. It facilitated to a debtor the compelling the entering satisfaction in bis favour, by rendering it penal to the creditor himself, to the extent of the loss of the whole of his lien. But a principal and leading object was for the sake of the judgment creditors, as between themselves. A precise view of the mischiefs that existed before this statute in the case of the lien of a judgment, will be the best exposition of its object, and the extent of its application. A creditor who had a judgment in his favour, say No. 2, was delayed by No. 1 not proceeding to a levy, or sale, so as to ascertain the effect of his lien, and leave the subsequent judgment open to his proceeding. For if he proceeded, a sale under bis judgment must be subject to the prior judgment which was perhaps satisfied, but did not appear to be so. It was not an uncommon thing, that by collusion of ere — 365 — di tor No. 1 with the defendant, this judgment was kept open, notwithstanding satisfaction before actually made; and on' a sale under the judgment No. 2, it was brought in, and the debt claimed. A defendant having become insolvent, could serve himself by a fraud of this kind. He could say to the judgment creditor No. 1, claim your judgment which I will not call upon you to acknowledge satisfied, and which I will not allege has been satisfied. Claim your debt, or do not come forward to enter satisfaction, that at the sale under it, or under No. 2, subject to it, a friend of mine may purchase for my use. But laying this out of the case, the judgment creditor knowing nothing of the fraud, his judgment may answer the purpose of depreciating the sale of the property; and without the knowledge of either creditor or debtor, this use has been made of outstanding judgments by speculators at the sheriff’s sale, by which means the judgment creditors are defrauded, the property not bringing the real value. What was more common than for speculators in this way to buy up a prior lien satisfied in whole or in part, to make this use of it, and get the property at an under value, which could not have been done if the judgments had been cleared away that were actually satisfied, though apparently existing. There is an air of vexation in the preamble of this act, at the finding it necessary to make any other provisions than those already made. Would it not justify a greater irritation of the public mind, if by a restrained construction of the word purchaser in the preamble, the broad provisions of even this act were defeated? I can therefore have no doubt, that even as respects judgment creditors, with relation to liens between themselves, the prior judgment not revived according to the act, loses its priority. But here as between the prior judgment and the mortgage, which it is not denied comes in strictness under the denomination of a purchase, the argument can only be on the ground of notice, which the mortgagee will and must admit he had. And what then? It cannot affect. If it could be made a consideration, it is not the notice of the lien, but of the non satisfaction, that could affect; and this is the ground of the whole mistake in the argument on the poirrf — 366 — of notice. But even did he know that the prior judgment 'was not satisfied, it interferes with the policy of the law to relieve him against it. I must therefore be of opinion that Samuel and William Hilbert are not intitled to the pay-merit of their debt out of the amount of the sales under the , J J mortgage.