Coad v. Cowhick

Corn, Justice. The sole question submitted in this case is whether, in this state, a judgment of the District Court is a lien upon after-acquired lands. Our statute upon the subject isas follows: Sec. 3828. “Lands and tenements, including vested interests therein, and permanent leasehold estates, renewable forever, and goods and chattels, not exempt by law, shall he subject to the payment of debts, and shall be liable to be taken on execution, and sold as hereinafter provided.” Sec. 3829. “ Such lands and tenements, within the county where the judgment is entered, shall be bound for the satisfaction thereof from the first day of the term at which judgment is rendered ; but judgments by confession, and judgment rendered at the same term at which the action is commenced, shall bind such lands only from the day on which such judgments are rendered; and all other lands, as well as goods and chattels of the debtor, shall be bound from the time they are seized in execution. ’ ’ At common law, except for debts due the king, the lands of the debtor were not liable to the satisfaction of a judgment against him, and consequently no lien thereon was acquired by a judgment. But by the statute (West M. 2, 13 Edw., 1), the judgment creditor was given his election to sue out a writ of fi. fa. against the goods and chattels, of the defendant, or else a writ commanding the sheriff to deliver to him all the chattels of the defendant (except oxen and beasts of the plow) and a moiety of his lands until the debt should be levied by a reasonable price and extent. When the creditor chose the latter alternative, his election was entered on" the roll, and hence the — 321 — writ was denominated an elegit. Hutcheson v. Grubbs, 80 Va., 254. While this statute did not in direct terms create the lien, courts so construed it as to infer a lien from the power to take the lands in execution. Scriba v. Deanes, 1 Brockenbrough, 170. And this lien has been held by the English courts and by the almost unanimous opinion of the courts of this country, to extend to the after-acquired lands of the debtor. Most of the States have enacted statutes declaring the lien, and almost without exception, and without regard to whether such statute in terms extended the lien to after-acquired lands, they have held that such lands were bound by the judgment from the time of their acquisition by the debtor. Freeman on Judgments, 367. So far as I can find, the only two exceptions are Pennsylvania and Ohio. There was also a similar holding in Iowa. Harrington v. Sharp, 1 Greene, 131. But the rule laid down in that case was subsequently changed by an amendment to the statute expressly providing that judgments should be a lien upon after-acquired lands, thus bringing it into line with the mass of opinion in this country. Ware v. Delahaye, 95 Iowa, 682. The Mississippi court is also cited as adopting the same construction. But an examination of the cases shows that that court simply rejected the contention that lands subsequently acquired were bound from the date of the judgment, and held that ‘ ‘ the lien attached on after-acquired property from the time it was acquired by the debtor.” Moody v. Harper, 25 Miss., 492; Cayce v. Stoval, 50 Miss., 402. But it is contended that our Legislature having adopted the language of the Ohio statute, we are bound by the construction given to it by the Ohio courts. The case of Boads v. Symmes, 1 Ohio, 314, which settled the law in that State, is not a construction of the statute under consideration, but is an exposition of the rule at the common law or under the statute of Westminster 2. The court deem it unnecessary to decide whether it was a maxim of the common law or was first introduced by the statute of — 322 — Westminster 2, as they say both are equally the law in Ohio. And the decision is expressly based upon the reasoning in the Pennsylvania case of Calhoun v. Snyder, 6 Binney, 145. But the decision in the Pennsylvania case is not based upon the common law nor the statute of Westminster 2. The author of Freeman on Judgments says of that-decision : ‘‘As long ago as the year 1813, in the case of Calhoun v. Snyder, the judges in Pennsylvania, in deference to a long course of decisions in that State, were constrained to decide that no judgment could ever attach as a lien upon lands in which the judgment debtor had no interest at the date of its rendition. The judge delivering this opinion at the same time said: “I am well satisfied that by the English common law lands purchased by the defendant, after judgment, but aliened before execution, were bound by the lien.” Forty seven years later it was said in the same State that, ‘‘ whatever may be thought of the doctrine of Calhoun v. Snyder, that a judgment lien does not bind after-acquired real estate, it is too firmly established in the jurisprudence of this State to be shaken at this day.” Waters’ Appeal, 35 Pa. St., 523. The rule thus established in Pennsylvania, and confessedly repugnant to the common law, was adopted in a few other American cases. It is, nevertheless, clearly repudiated, in favor of-the common-law rule, by the vast majority of the American decisions declaring judgments to be liens upon real property acquired by the defendant, after their rendition. Freeman on Judgments, Sec. 367. The Ohio court in 1829, in Stiles v. Murphy, 4 Ohio, 92, reaffirmed the doctrine as laid down in Roads v. Symmes. But while they construe the statute then in force in that State, they base their decision upon Roads v. Symmes, and they say in conclusion, ‘ ‘ That decision may have been an innovation upon established principles of law, — it may have been a departure from true policy, under the circumstances in which we are placed,— but it would be a more dangerous innovation, and a wider departure from true policy now to disturb it.” The — 323 — language of the statute as quoted in Stiles v. Murphy is ‘ ‘ the lands and tenements of the debtor shall be bound for the satisfaction of any judgment against such debtor, from the first day of the term at which judgment shall be rendered and, it will be observed, is not in terms the same as the one subsequently in force in that State and adopted by the Legislature of Wyoming. We fully concede that the rule relied upon, that in adopting the statute of another State we also adopt the construction which it has received, is one of great importance and very generally applied; but it is based upon a specific and sufficient reason, which is, that the Legislature are presumed to have known the construction which the words of the statute have received, and if they had intended any other construction, they would have used apt words to express the change. But this statute is not peculiar to the State of Ohio. Other States have the same provision, using either the identical words or language which is in substance the same. And they have, almost without exception, given to the language a different construction. Must it not also be presumed that the Legislature knew the construction given to it generally by the courts of this country and England 2 The adoption of the identical words of the Ohio statute is not specially significant in view of the fact that they are but a part of our code of civil procedure, covering more than two hundred pages of our Revised Statutes, and adopted bodily almost without change from the code of Ohio. This construction has from time to time been urged upon the courts of other States, but with practical unanimity they have declined to adopt it. The language of the Kansas statute was : “ Judgments shall be liens on the real estate of the debtor within the county in which the judgment is rendered; but judgments by confession and judgments rendered at the same term during which the action was commenced, shall bind such lands only from, the day on which judgment was rendered.” Brewer, J., in delivering the opinion of the court, says: — 324 — ‘ ‘ Counsel for plaintiff in error contend that our statute resembles the Ohio statute, and that, therefore, adopting it, we adopt the construction given there. Our statute is not a copy of the Ohio statute; and while it resembles it very closely, yet little, if any, more so than it does tbe statutes of some of the other States, as for instance, Tennessee. Nor do we understand the Ohio court, in the case in 1 Ohio, in which the question was first decided, as resting their decision upon the peculiar language of their statute. It should perhaps be stated that the statute now in force in Ohio, and from which it is claimed ours was taken, is not exactly like the one in force at the time of the decisions quoted. ’ ’ And the Kansas court held that the lien did bind after-acquired lands. Babcock v. Jones, 15 Kansas, 233. In Nebraska, the statute was in the words of the Ohio statute, they, like ourselves, having adopted the Ohio code of procedure. The supreme court of that State had stated in Filley v. Duncan, 1 Neb., 134, that the lien of a judgment did not attach to lands acquired after its rendition, so as to affect Iona fide purchasers. But upon the question being presented to the court in Colt v. Dubois, 7 Neb., 392, they disregard the dictwn in Filley v. Duncan, and hold that the lien attaches to after-acquired lands. The question again came before that court in Berkley v. Lamb, 8 Neb., 392, and the adoption of the Ohio view was insisted upon. One of the justices, in a separate opinion, not only maintained that the Ohio decision was binding upon the Nebraska court, but that such was the proper construction of the language of the statute itself; contending that as lands not then owned by the judgment debtor could not be affected by the lien on the first day of the term at which the judgment was rendered, the expression, ‘ ‘ all other lands,’’ must include lands not then owned by the debtor. But the Nebraska court has adhered to the rule as stated in Colt v. Dubois. Duel v. Potter, 51 Neb., 241. And the true construction of the language of the statute seems to be found in the fact that the judgments of the English — 325 — courts of general jurisdiction were liens upon the lands of the debtor throughout the kingdom, whether owned at the time or afterward acquired. The object of the American statutes was to limit the lien to lands within the county where the court was held; land without the county to he bound only from the time they are seized in execution. That this is the meaning of our statute, is still more apparent from the language of the succeeding section (3830), establishing the lien of judgments of the supreme court: “A judgment of the supreme court, for money, shall bind the lands and tenements of the debtor, within the county in which the suit originated, from the first day of the term at which judgment is entered, and all other land, and the goods and chattels of the debtor, from the time they are seized in execution.” Here the distinction is very clearly drawn between lands within the county, and all other lands; and it would be a violent assumption to suppose that the general purpose of the two sections is not the same. The decisions in Pennsylvania and Ohio, as before observed, are substantially conceded by the courts of those States to have been erroneous, and are only adhered to under the rule of stare decisis. That rule is not in any measure persuasive with us, the question not having been passed upon before by this court, and no such rule of property having been established in this State. Most of the States have enactments similar to our own, to which they have given a construction extending the lien to after-acquired lands, and this was the prevailing construction long prior to the adoption of the statute by us. Our conclusion is, therefore, that, having adopted the statute of Westminter 2 into the legislation of this State, we adopted the construction given to it with substantial unanimity by the courts of England and this country, that the lien of the judgment attaches to the after-acquired lands of the debtor. And that our enactment upon the subject was framed for the purpose of adapting that’ statute to our conditions by defining the territorial — 326 — limits of the lien existing by force of it, and not to change the character or extent of the lien in any other respect. PottER, O. J., and Knight, J., concur.