Perkins, Livingston & Post v. Brierfield Iron & Coal Co.

CLOPTON, J. We find in the record a demurrer to the bill, filed February 6th, 1884, by the Brierfield Iron and Coal Company and Caswell C. Huckabee; but, as it appears that, at that time, there was a decree pro confesso against Huckabee, which was subsequently set aside, and thereafter a separate de [408] murrer filed by him, and as the decree from which the appeal is taken appears to have been on the separate demurrer, we shall restrict our consideration to the grounds of the demurrer filed after the decree pro confesso was set aside; assuming that the first was abandoned, or not insisted on, having been irregularly filed. The purposes of the bill seem to be three-fold: 1st, to have the mortgage to Walton declared void as against complainants, and the property of the Brierfield Iron and Coal Company sold for the satisfaction of their judgments, as having a prior lien; 2d, failing in this, to have the mortgage to Walton declared a general assignment, and the proceeds of the property distributed according to the equities of the parties; 3d, to enforce the deed of trust to Pettus and Jones, and have the property sold, the assets marshalled, and the priorities of the parties determined. And failing in these main purposes, the bill seeks to have the amounts alleged to be due to Carter and ITuckabee by the company, for the purchase-money of the lands on a re-sale, appropriated to the payment of the judgments of complainants. No question as to the character of the bill is raised by the demurrer. It is a general rule, that all persons who are legally or beneficially interested in the subject-matter of the suit- — who have a legal or equitable estate, and whose rights and interests are to be affected, or sought to be concluded by the decree — are necessary parties to the bill. It is manifest from the allegations of the bill, that Glover, John Collins and Carter are, each, either legally or beneficially interested in the subject-matter of the suit, and that their rights and interests would be materially affected by a decree in favor of complainants. The bill show's that, after the making of the mortgage to Walton, the company executed, in April, 1867, a mortgage to Glover, and another mortgage, in May, 1867, to John Collins, all three covering the same property, and conveying substantially all the property of the company; that, subsequently to the execution of the deed of trust to Pettus and Jones, the property was sold under the Walton mortgage,'and purchased by the then beneficial owners of the mortgage, who conveyed to ITuckabee for the purpose of enabling him to effect a sale of the property ; that ITuckabee afterwards sold a part of the lands to Carter and Sheppard, who re-sold to the company, for which the company is still indebted to Carter and ITuckabee respectively. It is thus shown that Glover and Collins are mortgagees, invested with whatever right and title the company held, at the time their mortgages were executed, to the property sought to be subjected to a lien in favor of complainants, claimed to be superior, or to be sold and the proceeds distributed among the creditors according to [409] their equities, under the operation of the Walton mortgage as a general assignment; and that the complainants claim to have the amount due by the company to Carter appropriated to the satisfaction of their judgments. It is true, no special relief is prayed against Carter, eo nomme; but the bill alleges the facts, on which such application of the money may be claimed under the general prayer. When the allegations of the bill show that, at some prior time, persons who are not made parties, had an interest which would be materially affected by the decree, its continuance is presumed; and it is incumbent on the complainant, if he would be relieved of the necessity to make them parties, to show by appropriate averments a cessation of the interest. It is not necessary, as counsel insist, for the demurrant to show that such person has never parted with his interest, in order to avail himself of the objection of a want of necessary parties. By alleging the interest or facts, that make it apparent, the complainants make a prima facie case against themselves. The averment that some other person, who-is made a party, claims to be the owner of the mortgage, is not sufficient. The person having the legal title, though he may not have a beneficial interest, must be made a party, so that the legal title may be bound by the decree. When a bill is brought by the assignee of a judgment or chose in action, the assignor, or other person having the legal title, must be made a party, and no decree will be rendered in his absence. — Lawson v. Ala. Warehouse Co., 73 Ala. 289. To dispense with the necessity of making a mortgagee of real estate a party, the bill must show that his interest and title to the land has passed out of him, by an instrument containing apt and appropriate words of conveyance; and it will not be seriously contended that the money claimed by Carter can be taken from him, and applied to the demands of complainants, without giving him an opportunity to contest, and show his right to the money. It is well settled by the decisions of this court, that, under our statutes, a judgment has no lien on the property of the defendant, real.or personal. — Dane v. McArthur, 57 Ala. 448; Carlisle v. Goodwin, 68 Ala. 137. The issue of an execution, and its delivery to the sheriff, are necessary to create a lien, which continues until there occurs the. lapse of an entire term without another having been issued. — Code, § 3210. Where the lien, which was originated by the issue of an execution, is lost, by suffering an entire term to lapse without the issue of another, it requires a new execution to create a lien, which, “in such case, will be anew lien, not a revivor of the last lien” — a new lien, commencing from the time the new execution is received by the sheriff. — Gamble v. Fowler, 58 Ala. 576. [410] The levy of the last execution on lands does not obviate the effect of a failure to have successive issues, as required by the statute. An execution lien on land constitutes no property or right in the land itself. Speaking of a judgment lien, it has been said: “ It only confers a right to levy on the same, to the exclusion of other adverse interests subsequent to the judgment ; and when the levy is actually made on the same, the title of the creditor for this purpose relates back to the time of the judgment, to cut out intermediate incumbrances. Subject to tins charge, the defendant may convey the land. A judgment creditor has no jus in re, but a mere power to make his general lien effectual by following up the steps of the law. "What law? The law which authorizes the judgment, and the issuing of the process, through which means the judgment may be satisfied. A failure to do this, releases the charge on the property.” — Massingill v. Downs, 7 How. 760. A judgment, when an entire term has elapsed without the issue of an execution, is necessarily a judgment without a lien, until a new execution has been issued.. Section 3173 of the Code provides: “When execution has been issued on a judgment within a year after its rendition, and has not been returned satisfied, another execution may be issued at any time within ten years after the test of the last, without a revival of the judgment.” And by section 3174: “If ten years have elapsed from the rendition of the judgment, without the issue of an execution, or if ten years have elapsed since the date of the last execution, the judgment must be presumed to be satisfied, and the burden of proving that it is not satisfied is cast on the plaintiff.” At the common law, when the plaintiff delayed suing out execution beyond a year, the presumption arose that the judgment had been satisfied, or from some supervening cause it was not to have effect; and the plaintiff was not entitled to execution as of right, but was compelled to resort to an action on the judgment, or to the writ of seire facias to revive it, and call the defendant to show cause why execution should not issue.- — -Bing, on Judg. & Ex. 119, Our statute extends the time to ten years, before the presumption of satisfaction arises. It may be conceded, that an execution, issued after the expiration of ten years, is not void, but voidable at the instance of the defendants. The operation and effect of the statutes are, to deny the plaintiff the right to sue out an execution without a revival of the judgment.— Van Cleave v. Haworth, 5 Ala. 188; Shackleford v. Miller, 18 Ala. 675. When a judgment becomes inoperative, and an execution can not be legally and regularly issued thereon, and so continues until revived by proper proceeding, it is a dormant judgment, — Freeman on Judg. § 442. [411] The lien of judgments rendered in the Federal courts is created by, and depends on the State laws, where Congress has not legislated on the subject. “ In those States where the judgment, or the execution of a State court, creates a lien only in the county in which the judgment is entered, it has not been doubted that a similar proceeding in the Circuit Court of the United States would create a lieu to the extent of its jurisdiction. This has been the practical construction of the powers of the courts of the United States, whether the lien was held to be created by the issuing of process, or by express statute.” Massingill v. Downs, supra ; Ward v. Chamberlain, 2 Blatch. 430. And by section 967 of the Bevised Statutes, judgments rendered in a Circuit Court within any State “cease to be liens on real estate or chattels real, in the same manner, and at like periods as the judgments of the courts of such States cease by law to be liens'thereon.” No execution was issued on the judgments of complainants, for more than ten years after the date of the last execution; and on the foregoing principles, they are dormant, and without a lien. The remaining cause of demurrer is, that the complainants do not show they are judgment creditors. The bill alleges, that the judgments mentioned therein were rendered by a court of competent jurisdiction, and are unsatisfied. The antecedent causes of action are merged in them, and they are conclusive of all pre-existing defenses. They are judgments, though dormant, and the complainants are dormant judgment creditors. Bu*t, as, under the rules we have stated, the complainants can obtain only the same relief to which simple-contract- créditors, on the same facts, and under the same circumstances, would be entitled, the ruling of the court on this cause of demurrer is error without injury. Other important questions have been elaborately arid ably argued by counsel. As, however, they are not raised by the demurrer, and as they may be, in some respects, differently presented on a final hearing, a consideration of them will be premature. The decree is affirmed, and the cause remanded, with directions to allow complainants, if they desire, to amend the bill, by making the necessary parties, and in such other respects as may be necessary and proper.