Beardsley v. Beecher

Loomis, J. On the 3d of October, 1879, the plaintiff brought a suit against the partnership firm of James R. Todd and Son, and attached thereon certain real estate of J. R. Todd, and on the 6tli day of the following month he recovered judgment for his debt and costs, and afterwards on the same day, pursuant to the statute of 1878, caused to be made and recorded in the town clerk’s office a certificate of lien on the land that had been previously attached in the suit. After-wards, on the 17th of November, J. R. Todd assigned all his property to the defendant as trustee for the benefit of his creditors, pursuant to the statute relative to insolvent debtors.And the parties by an amicable suit have presented the question, and had it reserved for the advice of this court, whether the judgment lien in favor of the plaintiff was dissolved by — 413 — tlie insolvency proceedings. If so dissolved, it must have been by the operation of some positive provision of the statutes, for, notwithstanding the intrinsic equity and justice of an equal distribution pro rata among the creditors, the law still favors the diligent creditor and protects him in his priority unless some statute otherwise directs. Hubbard v. Hamilton Bank, 7 Met., 347. By the provisions of our statutes the commencement of insolvency proceedings will dissolve transfers and liens in two classes of cases only:—1st. All transfers made with a view to insolvency and for the purpose of preferring the party receiving the same, and with the knowledge of such party that it was so made. General Statutes, pp. 378-9, secs. 1, 3. 2d. All attachments and all levies of execution on the property of the insolvent debtor, not completed, made within sixty days next preceding. General Statutes, p. 383, sec. 25. There is no claim that the first provision can apply to this case, and the express finding that the plaintiff had no knowledge of the insolvency of Todd removes all ground for such claim. The only debateable question is whether the second provision applies. A judgment lien surely is not within the terms of the statute, and it is certain that the statute was not originally passed with reference to any such thing, for, until the year 1878, a judgment lien was unknown to our statutes, and it had never been adopted in any of the New England states. But still we concede that such a lien having now been authorized by the act of 1878, if its nature is such that it is fairly within the scope and meaning of the terms used in the f statute then and previously in force, the.latter must be held to apply. But to give it such effect we must hold that a judgment lien is either an attachment or the continuation of an attachment. If it had been intended merely to continue an attachment it would have been easy and natural to have said so. But such evidently was not the object, for the reason that the lien may as well be placed on any other real estate that was — 414 — not attached; the statute in terms provides that any real estate subject to the levy of an execution is subject to this lien. The fact therefore that happens to be true in this case, that the lien was placed on the same land that had been attached, is of no controlling importance. It would be absurd to construe the statutes so as to dissolve a judgment lien where there had been also a previous attachment, and to hold it good where there had been no attachment. The law will not reverse its ancient maxim and punish a creditor merely because he was diligent. Neither can we hold a judgment lien to be an attachment. The term when used without other qualification in a statute has reference to the taking and holding of the person or property on mesne process, subject either to the further order of the court or to final judgment in the case. To make an attachment of property effectual to accomplish its object it is often necessary that the property should remain in the custody of the law for a limited period after final judgment; hence our statutes provide for a continuance of an attachment lien for four months after final judgment. The following citations from 1 Bouvier’s Law Dictionary, pages 162, 3, show that we have given the word its legitimate and proper meaning. “Attachment. Taking into the custody of the law the person or property of one already before the court, or of one whom it is sought to bring before it.—A writ issued at the institution or during the progress of an action, commanding the sheriff or other proper officer to attach the property, rights, credits or effects of the defendant to satisfy the demands of the plaintiff.—The original design of this writ was to secure the appearance of one who had disregarded the original summons by taking possession of his property as a pledge. 3 Black. Com., 280.—By an extension of this principle in the New England states, property attached remains in the custody of the law after an appearance and until final judgment. Bond v. Ward, 7 Mass., 128.” By reference to the statute creating the judgment lien (Acts of 1878, pp. 293, 4,) it will be seen that the lien in — 415 — question lacks the essential elements and incidents of an attachment. It is provided that “the judgment from the time of filing the certificate shall constitute a hen upon the real estate described in the certificate,” and that “ any such lien may be foreclosed or redeemed, in the same manner as mortgages upon the same estate.” But no time is prescribed within which it must be filed; it may be at any time within the life of the judgment, except indeed when it is desired to have the lien relate back to the date of a previous attachment, in which case it must be filed within four months after the rendition of final judgment; and in this respect it is precisely like the levy of an execution. Furthermore, the lien has no limit fixed for its dissolution. Nothing is to be done by the creditor to perfect or perpetuate it, and no neglect or act on his part will forfeit his right. It is not an inchoate, but a perfected and permanent lien, unconditional in its nature, unlimited as to time, and subject to no further regulations except as to redemption and foreclosure. The interest vested in the creditor is just as permanent as a mortgage, and instead of considering it an attachment we would rather designate it a sort of statutory mortgage. In the argument for the defendant we were referred to some authorities from other jurisdictions, showing that a judgment lien was there regarded as vesting no complete interest; and the inference sought to be drawn from the proposition was that the nature of the lien was essentially the same as that of an attachment. But the argument loses its force when we consider the marked distinction between our judgment lien and that of other states. As far as we have been able to examine the statutes of those states the lien is universally of limited duration, and is often subject to conditions which render it a very precarious security for the creditor. In Tennessee, Virginia and Texas, the duration is only one year, unless execution is taken out and levied within that time. In California it is two years. In Missouri and Arkansas three years. In Pennsylvania five years, subject to the' right of reviving it under prescribed conditions. In Illinois it is seven years, and in New York, — 416 — Indiana, Iowa, Minnesota and Wisconsin ten years. • In Michigan it is five years, but is confined to certain classes of cases. In Ohio judgments cease to operate as liens if execution does not issue within five years, and they lose their preference against all other boná fide- creditors if execution is not levied in one year, unless the delay is caused by appeal, injunction or the like. The construction we have given to the law of 1878 we believe is in full harmony with its spirit and letter, and with the intention of the legislature. One prominent object of the law was to provide a more economical, convenient and equitaable method of enforcing a judgment and to make it for the interest of both parties to adopt it instead of the old method. The creditor can avoid the hazard of having his levy defeated by some technical objection to the mode of procedure and can rest in the confident assurance that his debt will ultimately be paid if the premises are worth more than the judgment. And on the other hand the debtor avoids a considerable expense and the risk of hasty and inadequate appraisal, and the still greater risk of having his remaining land impaired in value by carving out and vesting irrevocably in another some part which is perhaps greatly needed for the profitable occupation of the rest. It is also a great benefit to the debtor to have time to redeem and to have it in his power to repossess himself of his property by paying the amount of the judgment. It is quite true that the law does not compel the creditor to enforce his judgment exclusively by filing and pursuing his lien. It is optional with him to pursue the old method of levying his execution. But where the property of the debtor consists of land, we believe, for reasons already suggested, that he will prefer to take his judgment lien. And this leads us further to remark, that if we should adopt the defendant’s construction of the statute, it would practically defeat its beneficent object, to the injury of both the immediate parties to the judgment, without any resulting benefit to the general creditors of the insolvent. As the levy on the real estate can usually be completed in a day and the title thus be made indefeasible in the creditor, — 417 — he would never knowingly consent to take instead a simple lien which any subsequent assignment in insolvency within sixty days would destroy. In the present case the plaintiff had eleven days to perfect and complete the levy of an execution, and it is certain that if he had been shut up to the alternative suggested he would have adopted that mode in order to make his title indefeasible. The Court of Common Pleas is advised that the lien in question was not discharged by operation of law, and that judgment should be rendered for the plaintiff. In this opinion the other judges concurred.