Nerge v. Glos

PAGE, Circuit Judge. As we'view this case, the only question is: Where no execution is issued within one year on an Illinois judgment, but one is issued later and returned nulla bona, does that execution so affect the judgment that it becomes a lien on real estate subsequently acquired? Appellant concedes that, unless such is the effect, the order appealed from must be affirmed. At common law a judgment created no lien on the lands of the defendant. Durham v. Heaton, 28 Ill. 264, 81 Am. Dec. 275. The Illinois statute of 1845 (Rev. St. 1845, c. 57, § 1) made a judgment a lien on real estate, provided execution issued within one year. In 1869, the Illinois Supreme Court said: “Tbe lien of judgments on real estate, and tbe power to sell lands under execution, is regulated alone by statute. Tbe lien only attaches and becomes effective by force of tbe statute, and only in tbe mode, at tbe time, and upon tbe conditions and limitations imposed by it. It receives no vigor or even aid from tbe common law, to wbicb it was unknown.” Tenney v. Hemenway, 53 Ill. 97, 101. [201] The act of 1872 (Laws 1871-72, p. 505), which is substantially the present statute, provided that a judgment became a lien from its rendition for seven years, but if no execution was issued within one year it thereafter ceased to be a lien. There was and is now the further provision: “Execution may issue on such judgment at any time within said seven years, and shall become a lien on such real estate from the time it shall be delivered to the sheriff.” Under that statute, the Supreme Court of Illinois has held (Dobbins v. First Nat. Bank, 112 Ill. 553, 561): “By the act of 1872, it seems that a mere judgment, by its own force, becomes a lien at once, and from its date. If no execution be issued within a year, the judgment lien ends; but if execution be sued out after the expiration of the first year, and within seven years from the date of the judgment, such execution becomes a lien from the time it comes to the hands of the sheriff to be executed, and if not levied within the seven years, that execution ceases to be a lien.” As, under the circumstances stated, it is the execution, and not the judgment, that is a lien, the order of the District Court is affirmed.