Gurnee v. Johnson's Ex'or

Lacy, J., delivered the opinion of the court. This case is as follows: At the April term, 1868, of the circuit court of Rockbridge county, Joseph G. Steele, executor of — 724 — George W. Johnson, recovered a judgment against G. A. White for $10,912.31, which judgment was docketed July, 1810. Afterwards, and prior to April 22d, 1810, judgments were recovered against the said G. A. White by G. W. Bansemer & Go., and others, aggregating $4,202.11, which were promptly docketed. On the said 22d of April, 1810, the said G. A. White borrowed $15,000 from the appellant, Walter S. Gurnee, and executed a trust deed on his real estate called Hart’s Bottom, to secure the same, which was recorded May 2, 1810. In April, 1868, when the said judgment was recovered by the appellee, Johnson’s executor, the said G. A. White was seized of the said Hart’s Bottom, and of other real estate called “ Connery.” The said Connery property was first sold and did not bring enough to satisfy the judgment held by the said appellee, Johnson’s executor. The circuit court of Bockbridge, by the decree of April term, 1881, in a controversy between the holders of the said judgment of Bansemer & Co., and others, and the said White, and the said Gurnee, who had been admitted a party upon his own petition in the suit between Bansemer & Co., and others, v. White, decided, that the judgment of the appellee, Johnson’s executor, rendered at the April term, 1868, was a valid lien upon all the real estate of said White, situated in the county of Bockbridge, notwithstanding that it was not docketed until July, 1810, and still bound such real estate, except so much as was aliened after the rendition of such judgment to a purchaser for valuable consideration without notice of such judgment, from the date of its rendition; the. unaliened property of said White being held liable for the judgment of Johnson’s executor ; the Hart’s Bottom real estate, conveyed for the benefit of Gurnee, was held liable for the judgments against said White, recovered before the alienation, and of which the alienee had notice. From this decree the appellant applied to this court for an — 725 — appeal, which was allowed. And the appellant insists here that the unaliened lands of the said White should he held liable to the judgments of which he had notice, and should not be subjected 'to the lien of the judgment of the appellee, Johnson’s executor, of which he had no notice, and against which it was not possible for him to protect himself. That at the time of his purchase, the said White was seized of sufficient real estate to pay and satisfy the said docketed judgments against him, the said White, independent of the real estate sold to the appellant, and that he was entitled under the statute to hold the real estate purchased by him exempt from the liens upon the same, until all the real estate of the debtor retained at the time of his purchase had been subjected first, to satisfy the said liens, and that he purchased under the belief that the unsold lands of the said White were ample to pay and satisfy all the liens on said White’s land; that his mistake upon this point was caused by the laches of the said appellee, in failing to give him notice of his lien, and that the said appellee should himself suffer the loss which was caused by his own conduct, certainly in a court of equity. And the question in this case is, Was the unaliened real estate of the debtor liable first to the lien of the judgment first rendered and unrecorded, or to the lien of the judgment last recovered, but duly docketed, at the date of the alienation ? Under the sixth section of chapter 182 of the Code, every judgment for money rendered in this state against any person, is made a lien on all the real estate of such person, at or after the date of such judgment. As between the judgment creditors then the statute is plain. What is the law as between the purchaser for value without notice, and the holder of an undocketed judgment? The eighth section of the same chapter of the Code, provides, that no judgment shall be a lien on real estate as against a purchaser thereof for valuable consideration without notice, unless it be docketed according to the third and fourth sections of the same chapter, in the county or corporation wherein — 726 — such real estate is situated, either within sixty days after such judgment or fifteen days before the conveyance of such real estate to such purchaser. In this case Hart’s Bottom was aliened, and the Johnson judgment was not docketed in the said county within fifteen days before the said alienation, nor within sixty days after the rendition of the judgment. So it is plain that the lien on the aliened land of the said judgment was defeated by the sale of the same, and it is not contended otherwise. But as betwfeen the purchaser of Hart’s Bottom and the dock- • eted judgments, the eighth section has no application, because as to them the purchaser had notice. What right did the purchaser have as to the Oonnery property ? By the tenth section of the same chapter of the Oode, he had a right to have the Oonnery property sold, first to satisfy the lien of the judgments against his vendor before the real estate purchased by him was subjected. But when subjected to satisfy the liens of judgments on the real estate of the said vendor, how were these liens to he adjusted? Was it to he subjected under the sixth section, and each judgment held to attach as of the date of its rendition ? What equity does Gurnee acquire as to the real estate of White, which was not purchased hv him, other than the right to have it sold to satisfy the liens of judgments against his vendor, before the real estate purchased by him is held liable ? The eighth section was framed for the protection of purchasers of real estate, claiming under alienation by the judgment debtor, real estate which, under former laws, would have been subject to the lien of the judgment, even in his hands for value without notice. He is entitled to hold the land he purchased clear of all liens, except such as he had notice- of. He was required, as to the land he purchased, to incur no burden, except such as he voluntarily assumed. He purchased his land subject to the lien of the Bansemer judgments, and he has been held to hold it subject to the same. — 727 — This court speaking upon this subject in a recent case said: “ This lien, conferred by the sixth- section of chapter one hundred and eighty-two of the Code, is absolute and unconditional. It is thus provided that every judgment, for money thereafter rendered in this state against any person, shall be a lien upon all the real estate of or to which such person shall be possessed, or entitled at or after the date of such judgment. The only exception to, or limitation upon this sweeping enactment, is found in the eighth section of the same chapter, which declares that no judgment shall be a lien upon real estate as against a purchaser -thereof without notice, unless it be docketed as directed.” It will be thus seen that the purchaser of real estate is entitled to hold the same exempt from the lien of an unrecorded judgment, of which he had no notice. But that is the sole exception. The real estate he purchased is protected, but as between all other persons, and all other real estate of the debtor, it is a "matter of no consequence whether a judgment is docketed or not. Much has been said about the hardship of the law in thus maintaining as between creditors this secret encumbrance. But, as is said in the same case, this argument might be addressed to the legislature with more propriety than to the courts. The statutes of registration do not profess and were not intended to guard against all the mischief which arise from conflicting titles or successive alienations of property. An undocketed judgment is good against subsequent creditors with or without notice, and yet the subsequent creditor may have trusted the debtor upon the faith of his ownership of an apparently unencumbered estate. It has been repeatedly held by this court that the lien of a judgment is an express, absolute statutory lien on the debtor’s real estate, and the right to resort to the courts to enforce it is a legal right without terms or conditions to be imposed, except the one which we have noticed as the sole exception, which protects the purchaser without notice against an unrecorded lien — 728 — upon the land which he buys. As to all other persons and all other real estate the rights of the j udgment creditor are precisely the same as they would he if the statute had never heen passed, requiring judgments to be docketed. In a controversy between different judgment creditors priority of time has been held to he priority of right, except in the exception provided by the said eighth section. By operation of that section, as we have seen, the senior judgment lost its lien upon Hart’s Bottom, but the Connery property has not heen aliened, and is not affected with the lien of a subsequent purchaser for valuable consideration without notice, and the lien of the unrecorded judgment attaches to it under the statute. You cannot take from a party a plain legal right or advantage unless you can bring home to him fraud or other unfair conduct, or a gross neglect of some positive duty imposed by a plain rule of law. 2 Pomery E. J. 676. To docket his judgment is the privilege of the creditor, not his duty. If he does not docket it, he may lose his lien on the real estate aliened to a purchaser for value0 without notice. The owner of the unrecorded judgment was obliged to give notice to the purchaser of the real estate encumbered by his lien, or he lost all claim under the law to such real estate. And the appellee lost his lien on Hart’s Bottom by his failure to give such notice, and if the Connery property had been sold to the same purchaser ¡under the same circumstances, he would have lost his lien on that; hut the Connery property has not heen sold, and does not come within the operation of the eighth section, and so the lien of the judgment remains undisturbed. The statute makes, as we have seen, the lien of the judgment “an express, direct, positive lien on all the real estate of or to which the judgment debtor should he possessed or entitled at or after the date of the judgment.” This court, in the case of Borst v. Nolle and als., 28 Gratt. 423, speaking of this lien, said, “It can hardly he said of such a lien as we have described, that it is not a civil right, and one of a high — 729 — order, seeing that it is under the law as it stands, and by force of the law, a plain, direct, positive charge upon real estate. Having once attached, it continues, unless it is in some way discharged, as long as the real estate on which it rests remains the property of the judgment debtor. It accompanies the land in its descent to the heirs, follows it into the possession of volunteers, and even into the hands of purchasers for value, if they have notice. It is a mistake to suppose that the eighth section was intended to create a lien against the purchaser by docketing the judgment. The lien is created by section six, and attaches to all the real estate of the debtor, except so far as it is qualified by section eight. The qualification is, that- it shall not extend to real estate aliened after judgment, to purchasers for value who have no notice of the judgment, unless the judgment be docketed in the manner and within the time prescribed. The implication is irresistible, that if it is so docketed it shall be a lien; that is, that the lien which was created by section six shall continue as to such purchasers.” We have said enough, we think, to show that by a proper construction of the several statutes, the lien of a judgment attaches to and follows the lands of the debtor into the hands of a purchaser for value, and continues, provided the judgment is docketed; and, if so docketed, that it is a lien from the date of the judgment as against such purchaser, in like manner and with like effect, as against the debtor; and 'while the docketing a judgment does not ■per se create a lien as against a purchaser for value, without notice, yet it is an act necessary, under our statutes, to be done, in order to preserve, or prevent the loss of, the lien as against such purchaser. The Bansemer judgments were duly docketed, and were liens upon the Hart’s Bottom real estate at the date of the Gurnee deed, and also upon the Connery property, and are paramount to the said deed, so far as the said deed concerns the real estate of said White, the judgment debtor. The Johnson judgment was a lien, in like manner, on all the — 730 — real estate of said White, the judgment debtor, from the date of its rendition, but, being undocketed, is defeated by the said deed on all the land of the said White which is conveyed in the said deed of Gurnee, as the said purchaser was without notice of the said Johnson judgment. The said purchaser holds the said Hart’s Bottom absolutely free from the lien of the Johnson judgment. And the said purchaser is entitled to hold the said Hart’s Bottom real estate, as against the docketed judgments, until all the real estate of his vendor, White, unaliened at the date of his purchase, has been exhausted. The Connery property was liable to the judgments obtained against the judgment debtor, as between the judgment creditors in the order of their recovery, and the lien of each attached to the said real estate at the date of and in the order of their recovery, whether docketed or undocketed. The Johnson judgment having been first recovered, hath priority to the judgments of Bansemer & Co., and others; and the said Connery property having been sold, and the proceeds applied to the extinguishment of the liens thereon, according to their priorities; and the judgments of Bansemer & Co., and others, remaining unpaid', the holders thereof are entitled to subject the Hart’s Bottom real estate in the hands of the purchaser, Gurneé, to the payment of their said judgments. The said purchaser having purchased the said real estate with notice of their liens, respectively. The case of Renick v. Ludington et al., 14th W. Va. Reports, decided December 14th, 1878, is a case involving the same questions as those involved in this case, and the decision is in accordance with the foregoing views. See also McClaskey & Crim et al. v. O’Brien et al., 16th W. Va. Rep. 791. The circuit court of Rockbridge having decided in accordance with the foregoing opinion in the decree complained of, we think there is’no error in-the said decree, and the same must be affirmed.- Degree aeeirmed.