Campbell v. Spence

ORMOND, J. The decision of this case depends on the ascertainment of certain principles which may be thus stated : First — What is the extent of the lieu created on lands by the rendition of a judgment? In the case of Morris v. Hill, [3 Ala. Rep. 560,] we held that a judgment created a lien on real estate, but it was not then necessary to determine its extent, as the lands were situate in the county where the judgment was rendered. The conclusion there attained was derived from the intention of the Legislature, manifested in the different statutes, by which lands bad been subjected to the discharge of judgments, and we can perceive no reason for confining the lien, which by operation — 549 — of law, is consequent upon the judgment, to the county ip which the judgment is rendered. In the case of judgments rendered by this Court, it would scarcely be questioned that the lien created thereby was co-ejt-tensive with the State. Yet we can perceive no reason why that effect should be accorded to these judgments which does not apply with equal force to the judgments of any other Copjt of record. In either case the lien and its extent must depend on the statute subjecting lands to the payment of judgments, by sale under execution, and the previous enactment on the same subject, giving the writ of elegit. As the lands of a judgment debtor, situate in any part of the State, may be sold to satisfy a judgment rendered in any county of the State, by the process of the Court rendering the judgment, that jpust be the extent of the lien. The argument drawn from the inconvenience of a contrary doctrine, is quite persuasive of the view here takep. The liens created by the judgments of the United States Courts, must at least be as extensive as the jurisdiction of these Courts, apd jt would be inconsistent, if not absurd, that a judgment rendered in favor of a foreigner should operate more extensively and beneficially than one in favor of our own citizens. The most plausible argument against this extension of the lien is the supposed necessity thereby cast on a purchaser of examining all the clerks’ offices in the State, before fie .cap purchase with safety. The answer to this objection is, that a purchaser from a defendant in execution may always protect himself by his covenants with the vendor, and a bona Jifle pun-chaser under a fieri facias upon a junior judgment, would be protected. In the language of the Court in the case of Den v. Hill, [1 Haywood, 72,] “were the law not so, it wQuJd be the most dangerous thing in the world to purchase land .at an execution sale. Dormant judgments might be revived a long time afterwards, and the innocent vendee evicted without the' possibility of ever regaining the purchase money.” In such a case the lien of the elder judgment would be lost by the laches of the plaintiff. Second-r-What effect upon the lien of the judgment has the superseding the execution by suing out a writ of error and giving bond with surety ? — 550 — In the case of McRae and Augustin v. McLean, [3 Porter, 138,] it is assumed as a settled principle, that a writ of error and supersedeas discharges the lien of the judgment, and such after a deliberate examination is our opinion. In the case of Wiswall v. Munroe, at the last term, we held, that where the judgment had been superseded'on error to this Court, that the judgment of the inferior Court was merged in the judgment of this Court. It follows that the lien of the first judgment is lost, as that could not continue after the judgment on which it was founded had ceased to exist. Nor could any execution issue in such a case upon the first judgment. But where the right to issue execution is merely suspended, as in the case of forthcoming bonds, and bonds to try the right of property, no such consequences follow, and the lien of the judgment will continue. See the case of Land v. Hopkins, at the last term, in which it was held, that the right to give a delivery bond was a mere power to delay the collection of the debt, and was for the benefit of the defendant, and that after a forfeiture of the bond, the plaintiff may still sue out execution on the judgment if he elects to do so. Third — What will amount to a satisfaction of an execution?' One of the judgments, supposed to have a prior lien to that of'the plaintiff in error, was obtained by the Bank at Huntsville for $575 debt, and $9 22 damages. This judgment was prior in point of time to that of the plaintiff; an execution issued thereon, came to the hands of the former sheriff, Griffin, who levied it on two negroes sufficient in value to satisfy the execution, which he returned “not time to sell.” An alias fi. fa. issued on the judgment, without any indorsement of the former levy, and came to the hands of a deputy of the new sheriff, (Spence,) by whom it was levied on two slaves of value sufficient to satisfy the execution, and was returned with the levy indorsed, and that he had appointed the first Monday in May for the sale. There can be no doubt that a levy and seizure by the sheriff of property sufficient to satisfy the execution, will be a discharge to the defendant, though the goods be wasted by the sheriff. It is, however, said that this plea is personal to the defendant, whose goods are taken, and cannot be made by a co-defendant, because it is not an actual satisfaction. [Dyke v. — 551 — Mercer, 2 Shower’s Rep. 394.] It does not appear that the slaves levied on have been sold, or that there has been a satisfaction in point of fact of the execution, although in law it must be so regarded, as it respects the defendant in execution, if the property has been actually seized by the sheriff. And although the Bank, (plaintiff’in execution,) would have an undoubted right to hold the sheriff responsible on his levy, we cannot perceive on what principle the plaintiff in error could insist on its foregoing its lien on the land,and,resorting to au action against the sheriff. From the case as stated on the record, we are of opinion that the judgment of the Hank has the superior lien. The judgment, however, of the Bank, obtained at the same term of the Court, for $3,000, does not stand in the same predicament. In that case, as in the preceding, the Ji.fa. came to the hands of Griffin, and was by him levied on a number of slaves, sufficient to pay the debt, and was also returned “ not time to sell.” An alias issued on the judgment, without any notice of the former levy, and was placed in the hands of Spence, by whom it was indorsed levied on a number of slaves of sufficient value to satisfy it, and that the first Monday in May was appointed for their sale. This levy was indorsed at the instance of one Jordan, who had purchased and obtained an assignment of the judgment, by whose directions the slaves were permitted to remain in the possession of Moore, the defendant, and who engaged to deliver them on the day appointed for the sale. The negroes were not present when the levy was made, and were not delivered,or ever came to the sheriff’s hands. It is not necessary no\v to consider what acts on the part of a plaintiff in execution,in giving delay and authorizing the defendant to retain property levied on, will render the execution dormant, and give a preference to executions issued on junior judgments, and levied on the same property. Thatsuch delay when unreasonable, will subject the property to sale under junior executions, appears to be well settled. In the case of Russell v. Gibbs, [5 Conn. 390,] the law was thus ruled, after an examination of all the New York and many English authorities. [See also Benjamin v. Smith, 4 Wendell, 332.] In this case, a levy was made on property sufficient to satisfy the execution — it is left in the possession of the defendant — 552 — ih execution, the father-in-law of the assignee of the judgment, on his promise to have it forthcoming on the day appointed for the sale, it is not produced or delivered, and must be regarded, as it respects other judgment creditors, a satisfaction. If the conduct of Jordan is not absolutely fraudulent, its direct tendency is to aid the defendant in the commission of a fraud upon a portion of his creditors, and he must abide the consequences of his own act. It appears further that Griffin, the former sheriff, had, when his term expired, executions in his hands to the amount of $29,000, by virtue of which he had levied and sold property to the amount of $24,000, and that the executions in his hands on judgments older in date than that of the plaintiff in error, amounted to something less than $24,000 — the residue being the amount due on judgments subsequent to that of the plaintiff. That Griffin, in applying this money to the satisfaction of the executions in his hands,did notregard the date of the judgments, leaving two executions unsatisfied which were older in date than that of the plaintiff in error; one in favor of N. M. Marks, for about $5,000, and one in favor of the Branch Bank at Mobile, for $2,476. These two executions had been levied on the land sold by Spence, and on some slaves which Griffin had in his hands remaining unsold. From this statement it appears a levy and sale was made tinder these executions, sufficient for their satisfaction, and in a contest with junior judgment creditors, who have acquired a lien on other property, it must be regarded aS a satisfaction. To hold otherwise would be to permit the sheriff virtually to destroy the lien created by the law in favor of the judgment of the plaintiff in error, and to prefer those judgments younger than his, which were capriciously discharged by him, out Of the money belonging to Marks and the Branch Bank at Mobile. It was their duty to attend to the application of the money obtained by a sale under their executions, and by neglecting to do so, they will be remitted to their claim against the sheriff, and will not be permitted to interfere with the lien of a junior judgment creditor subsequently obtained. As the seizure of property by the sheriff sufficient to discharge the debt, will be a satisfaction as it regards the defendant in execution, though the property be wasted by the sheriff, so will a levy — 553 — and sale under a senior execution, be considered a satisfaction as it respects a junior execution, subsequently levied on other property of the defendant, although the sheriff may make a misapplication of, or waste the money. This principle was, in effect, held at the last term, in the case of Smith v. Hogan, which was a motion suggesting that Smith, the sheriff, could have made the money on an execution of Hogan, by due diligence. The defence was, that the sheriff had levied executions having a prior lien to that of Hogan, on all the property of the defendant which was not more than sufficient in value to satisfy them — and this Court held that a sufficient answer to the motion. The sheriff has a right, and it is his duty, when he entertains a reasonable doubt as to the proper return to make, and when a return either of nulla bona, ox satisfaction,might subject him to an action, to suggest his doubt to the Court, which will enlarge the time for making his return, until the right can be ascertained, or he is sufficiemly indemnified by one of the parties. See the authorities collected on this subject in Watson on Sheriffs, 196. This the sheriff, Spence, has in effect, done in this case, and the case agreed on by the parties, enabled the Court to ascertain the priorities of t he several executions. From what has been adduced in the preceding part of this opinion, it follows that in a contest between rival executions for the proceeds of the sale of lands, if the lien is not lost in some of the modes here pointed out, the date of the respective judgments will determine the priority of right; and the question will not be affected by the fact merely, that some of the executions remained in the hands of a former sheriff. By the application of this rule, in connection with the other principles stated in this opinion, it follows, that of the eight judgments first described in the agreed case, but two have a prior right to the money to that of the plaintiff in error. These are the judgments obtained by the Bank at Huntsville, in August, 1841, for $584 22, and the one in favor of the State Bank, at Tuscaloosa, of February, 1840, for $919 66. It has also been shown that the-two executions on judgments older than that of the plaintiff, in the former sheriff’s hands in favor of — 554 — Marks and of the Branch Bank at Mobile, must, as it respects the plaintiff in error, be considered satisfied. This leaves of the proceeds of the land sold by Spence, a surplus sufficient to satisfy the judgment of the plaintiff in error, and the Court below erred in not making that appropriation of the money. The judgment of the Court below must therefore be reversed and here rendered for the amount of the judgment of the plaintiff in error.