McCabe v. Lee

Kirby, J. (after stating the facts). The execution constituted a lien upon the property of the judgment debtor, which continued as long as the writ remained in force, and the general rule is "in the absence of express statutory enactment an execution has no legal effect as such, after its return day, and on the return of an execution nulla bona, its lien expires, yet the title vested in an officer by virtue of his levy remains until divested by subsequent proceedings, and he may proceed to advertise and sell the property by virtue of his title acquired by levy after the return day of the writ. ’ ’ 17 Oyc. 1072; 2nd. Freeman on Executions, 202. The (property had been levied on and taken into possession of the officer under the authority of the execution before appellant acquired a lien under his mortgage which had not been recorded until afterward, and the officer could have proceeded with the sale of the property even after the return day of the writ, but he returned it before the day, under the direction of the judgment creditor, unsatisfied, and caused it to be reneAved by proper endorsement thereon, under the authority of Sections 4642- 4644, Kirby’s Digest. By the terms of the statute such endorsement of renewal continues the execution in full force in all respects for 12 months after the endorsement made. The execution constituted a lien from the time of its issuance and levy, and by the levy of it, the officer acquired a special interest in the property of the judgment debt- or levied upon, which he could protect by suit, and the execution being renewed in accordance with the statute, during its life or before it became fumdus officio, continued the lien and the right of the officer to the property seized under it from the time of its levy until the disposition thereof, according to law, and his right was superior to any right that could be acquired by appellant under his mortgage, which was not recorded until after the issuance and levy of the execution. The judgment is affirmed.