Bruce v. Vogel

Wagner, Judge, delivered the opinion of the court. This is a writ of error, prosecuted from an order overruling a motion made by plaintiff, to require the sheriff of St. Louis county to pay over certain moneys in his hands, upon an execution in plaintiff’s favor. The record discloses the following facts: P. B. Garesché obtained judgment against Augustus P. Ladew, in the Court of Common Pleas, on the 1st day of October, 1860, which [103] judgment was abstracted in the Land Court on the 5th day of October, 1860. On the 2d day of October, 1860, four judgments were rendered in the Circuit Court against Ladew; one in favor of plaintiff; one in favor of James Woods and others ; one in favor of Lucien Hart, and the other in favor of James R. Brown, all of which were filed and abstracted in the office of the clerk of the Land Court on the 6th day of October, 1860. By the act establishing the St. Louis Land Court, no judgment rendered by any court in St. Louis county operated as a lien on real estate in said county until an abstract of the judgment was entered in a book kept by the clerk of the Land Court; and the liens of all judgments entered in the book with the clerk, according to the act, had priority according to the period of time of their respective entries. Ladew, the judgment debtor, was apparently insolvent, as executions were issued on the foregoing judgments shortly after their rendition, and returned by the sheriff nulla bona. Garesché and Brown assigned their judgments to. one Prince, and Prince’s attorney caused an execution to be issued on the Brown judgment on the 18th day of July, 1863, with directions to the sheriff to levy on and sell the right, title and interest of Ladew in a certain piece of real estate in the city of St. Louis. The sheriff made the levy and advertised the property for sale on the 21st day of July, and sold the same on the 14th day of August ensuing, for the sum of $1,175, not sufficient to pay off the execution. Bruce, the plaintiff, had execution issued and placed in the hands of the sheriff on the 23d day of July, and Hart, Wood, et al., and Prince as assignee of Garesché, had execution issued on their several judgments and placed in the hands of the sheriff on the 13th day of August. All of these executions, it will be seen, were issued and received by the sheriff after the levy was made, but before the sale took place. Motions were made in all the cases in the court below, asking that the money should be applied to each execution pro [104] rata, except that it was moved in the Garesché judgment for all the money, if it was to be distributed, as that had priority. The counsel for the defendant in error insists that the writ of error should be dismissed, because an order overruling a motion is not such a judgment as the law contemplates that an appeal or a writ of error should be taken from. But this court has held that it will review the decisions of inferior courts on motions, although the points of law determined should not be specifically stated in the bill of exceptions, and no motion for a new trial made—Parker v. Waugh, 34 Mo. 340. In this case.the points of law are sufficiently preserved, and a motion for a new trial was regularly made and overruled. Nor is the other position taken by the same counsel maintainable, that the judgment in favor of Brown is entitled to priority, because it was numerically entered first in the abstract book kept by the clerk, though ■ they were all received on the same day and at the same time. Such a doctrine would be contrary to reason, and might be productive of manifest injustice. A creditor might have obtained his judgment first, and have been the first on the same day to have filed his abstract, and yet the clerk might put some other one ahead on the book. In such a case it would be a great wrong and hardship to say that he 'should be postponed. But we are relieved from all these refinements. As the statute provides for no fractions of a day, it follows that all judgments entered on the same day have equal rights, and one cannot claim priority over another. The ground assumed, that if the money cannot be retained on the execution issued on the judgment rendered in favor of Brown, then it should be applied wholly to the discharge of the execution issued on the Garesché judgment, is equally untenable. The statute fixes this point beyond controversy. Where land is sold under a junior judgment or decree, the title of the defendant passes, subject to the lien of all prior judgments or decrees then in force, and the money arising [105] from such sale shall be applied to the payment of the judgment or decree under which it may have been made — 2 R. G. 1855, p. 904. The question remains whether, where there are judgments that are equally liens, and one of the judgment creditors, by his superior diligence, finds property subject to levy and has his execution levied thereon, he shall enjoy the benefit of his industry ; or, may the other creditors come in and share pro rata with him, although their executions were not issued till after the levy had been made and no sale had by virtue of them ? There is a difference between liens on real estate and on p*ersonal property. Executions constitute the lien upon personalty, and the priority of the liens is determined by the time of their delivery to the officer. On the other hand, it is the judgment which constitutes the lien upon real estate, and the priority once acquired can never be lost by want of: diligence, or otherwise, on the part of the plaintiff. This is not a question here as to whether the sheriff performed his duty in omitting to levy and sell under all the executions in his hands. It is plain that he did not do so, and if any of the judgment creditors have any claims against him on that account, they must seek their remedy in a different way. The statute of Mississippi makes all judgments liens on the property of the defendant from the time of the entering of the judgment, and it has been decided on this statute that in a contest between two judgment creditors, whose judgments are of the same day, the one who first procures a levy and sale, or who first sues out execution and begins to execute, gains a priority—Bumley v. Boyett, 1 How., Miss. 39. In Adams v. Dyer, 8 Johns. 387, there were two judgments, one in favor of A., and the other in favor of B., against the same defendant. The date of the liens of the judgment was the same. A. took out the first execution, and under it the debtor’s land was advertised for sale. After such advertisement, and before the sale, an execution was issued on B.’s execution. The land was afterwards sold on A.’s execution. [106] It, was held that A. was entitled to the preference. This case is precisely in point with the one under consideration, and has been repeatedly followed—Waterman v. Haskin, 11 Johns. 228 Michales v. Boyd, 1 Carter Ind., 259; Rockhill v. Hanna, 15 How., U. S. 189; Smith v. Lind, 29 Ills. 24. While the statute makes the liens equal, it does not deprive a party of any advantage he may gain by the exercise of superior diligence. If.one creditor who is exactly equal to another as regards liens, by energy, perseverance and diligence, discovers property whereon to levy and make his money, justice demands that he shall reap the fruits of his industry. He may have gone to great labor 'and expense in investigating records and ferreting out and bringing to light property out of which to satisfy his execution; and to allow another person who had slept on his rights, and neither encountered labor or furnished money, to stand on an equality with him, would be inequitable,. “ Vigilantibus,non dormientibu's, jura subveniunt.” The laws assist those who are vigilant, not those who sleep over their rights. We are well satisfied, on principle, that where judgment liens are equal, one judgment creditor can get priority over another by his superior vigilance and watchfulness. The execution issued on the judgment rendered in favor of Brown was fairly entitled to priority, as it was first placed in the hands of the officer, and the levy and sale were made under it; and the money could not be diverted from it and applied to others subsequently issued, and under which there was neither levy nor sale. Judgment affirmed. Judge Holmes concurs; Judge Lovelace absent.