Hitchcock v. Roney

Scates, C. J. “ The property, real and personal, of every person who shall be convicted of any of the offences punished by this chapter, shall be bound, and a lien is hereby created on the property, both real and personal, of every such offender, from the time of his or her arrest, if he or she be arrested before indictment; if not, then from the time of finding the indictment, at least so far as will be sufficient to pay the fine and costs of prosecution.” At the end of each term, the clerk shall issue executions for all fines and costs so adjudged, and note the day of the arrest or indictment, and the sheriff shall levy on all such real and personal property of defendant, which he “ possessed as his or her own real or personal estate, on the day mentioned in such execution,” and advertise and sell as in civil cases. Rev. Stat. 186, Sec. 192. De minimis non curat lex, would, upon general principles, include the whole day. And here the lien is expressly made to operate upon all the estate owned on that day. We must allow the arrest, or the finding of an indictment, to create and operate as. a lien, on that day and the whole of it, or else we cannot give it any operation, without violating its plain language and obvious intent. I shall not discuss the power of the legislature to create liens for liabilities, nor the power or policy of giving preferences to public interests. This is another instance of a semi-secret lien, as mentioned in McClure v. Engelhardt, (ante, p. 47,) which has not beenrequired to be recorded for purposes of notice. I conceive the change of venue cannot effect any change in the operation of this lien. It can make no difference whether the judgment of fine, or for costs, is rendered in the county where the land lies, or a foreign county, as to this lien ; for it is not the judgment which is declared to be a lien, but the arrest or indictment so operates, for the satisfaction of the judgment of fine or costs which may follow the conviction. This lien, therefore, does not arise under the general statute, making judgments liens from the last day of the term. Hitchcock is a stranger to the record and proceedings, and has no right to interpose a motion to quash the levy, sale and execution. As a purchaser of the same land, he has his remedies to investigate the question of title, and they are not impaired by this proceeding, to which he is not a party. In Price v. The Shelby Circuit Court, Hardin R. 254, the court held that they were not bound to hear a motion in a summary way, at the instance of a stranger, although his interest might be affected by the execution sale. So in Glassell's Administrator v. Wilson's Administrator, 4 Wash. C. C. R. 59, the court refused to interpose at the instance of third persons, who claimed the land levied on and sold; and this rule was again applied'in Wallop's Administrator v. Scarburgh et al., 5 Gratt. R. 1. More especially will this summary remedy be denied, when it is inappropriate, and incapable of affording as complete relief as suit or bill. This reason constituted in part the ground of refusing a motion, in Day et al. v. Graham, 1 Gil. R. 435, as the rights and equities of third persons, purchasers, could not be inquired into and protected by terms on setting aside the sale. No objection was taken to judgment creditors of the same debtor, as strangers, in that case, whose judgments were entitled to satisfaction out of the same property. Indeed such creditors were expressly relieved, and on motion, from a fraudulent sale, in Goff v. Jones, 6 Wend. R. 522. The court refused this summary remedy, to the purchasers themselves, in Hewson v. Deygert, 8 John. R. 333. But the court did interpose in Davis v. Tiffany, 1 Hill R. 642, at the instance of a purchaser of the land, without notice of the judgment. There is no other fact noted to point, us to, or explain the ground of this ruling. We have no doubt it was proper in the case, but is an unsafe precedent, without facts for our guidance. Judgment of the court, denying the motion, is approved. Judgment affirmed.