Ridge v. Prather

1 Blackf. 401, 1825 Ind. LEXIS 42

• Court: Indiana Supreme Court
• Decided: November 22, 1825
• Status: Published

Opinion

Blackford, J.

Prather obtained judgment against Gilwick in 1816, and bad execution of fieri facias thereon. The sheriff returned the execution executed, by a replevin-bond, the same year. Gilwick afterwards died. Upon scire facias issued in 1823, against the heirs and terretenants of Gilwick, and Lilly tbe replevin-surety, the sheriff, inter alia, returned Ridge terretenant of land that was Gilwiclds at the time of the judgment. Ridge came in and pleaded, that he was a bona fide purchaser from Gilwick without notice, after the expiration of a year and a day from the time of the judgment or replevin-bond, and before the issuing of the scire facias. Upon demurrer to this plea, there was judgment for Prather, the plaintiff in the Circuit Court.

In opposition to the feudal principles of the common law, and beyond the bounds of the elegit given by the English statute of West 2, or that of the state of Virginia which ceded this territory to the union, the policy of our country has been, from its .earliest history, to subject real estate to absolute sale for the payment of debts. Hence our execution of fieri facias is against the lands and tenements of the debtor, as well as against his goods and chattels. The old code of the north-western territory of 1795, p. 15, contains the prototype of the act which we see in the revised codes of 1807 and 1817, subjecting real and personal estate to execution, and which is the law of the case now before us. That act of 1795 was adopted by the governor and judges, from the laws of Pennsylvania, where it was enacted in 1705. 1 Read’s Digest, 226. The decisions of that state therefore, on the subject, merit our particular attention. That under this statute of Pennsylvania, judgments, from the time of their rendition, were liens on the lands of the defendant, is evident from the first books of reports there. Graff V. Smith, 1 Dali. 481. They were considered liens too, not merely for a year and a day, but ad infinitum. In 1798, the legislature passed an act of limitation, by which it was enacted, that no judgment should continue a lien on the real estate of the debtor, during a longer period than five years, unless a scire facias Was sued out to revive the same. 1 Read’s Digest, 192. In Young v. Taylor, 2 Binn. 218, this subject is adverted to. Ramie and Binney, counsel on one side, say in argument, that a judgment lien exists for five years, whether execution issues or not: Levy and Dallas on the other side say, the mischief before the act of 1798 was, that judgments were a perpetual lien, without any process to continue or revive the same. This was questioned by no one. The case of Carkhuff v. Anderson, 3 Binn. 4, was as follows:- In 1799, Hollinback had judgment against Craig; in 1801, Craig sold and conveyed his land to Anderson; in 1802, Hollinback revived his judgment by scire facias, and Carkhuff purchased the premises at the sheriff’s sale. In ejectment against Anderson, it was decided that Hollinback's judgment was a lien on the land, and Carkhuff recovered. Such is the law of Pennsylvania, whence our statute making judgments binding on. the lands of the debtor is derived. But we have no statute limiting the duration of the lien.

At common law, land in the general was not liable for debt; Dor could any execution issue on a judgment, in a personal action, after a year and a day. 2 Bac. 728. The judgment however Was not barred, for an action of debt would still lie on it. The statute óf West. 2,13 Edw. 1, authorized the elegit, and thus ■made land in England liable for debt, from the time of the judg* ment. 3 Bl.Com. 418. It also gave the scire facias'in personal actions, by which, after a year and a day, the judgment might be revived, as in real actions at common law. Co. Litt. 290; bo. Since that statute it has been considered, that when a man has. judgment for debt, or is conusee of a statute, and the debtor before execution aliens by fine, and five years pass, yet the plaintiff may still have execution. 2 Bac. 731. Even lands purchased after the judgment, and aliened before execution to a bona fide purchaser, have been held bound by the lien. 2 Cruise, 73

(1). No decision of the English Courts has been cited by the counsel, to show that this lien of a judgment upon real estate is suspended, after a year and a day, until the issuing of a scire facias; nor does this Court recollect any such case in that country.

In New-York, there is the following case. In February, 1802, Ehle had judgment in debt against Borst, whose land was thereupon sold in June, 1802, to Ellwood. Afterwards an old judgment of 1798, in favour of Kane against Borst, was revived by scire facias in December, 1803, and the same land levied upon and sold to Kane. The claimant under Ellwood, who purchased under the younger judgment, brought ejectment against the lessee of Kane, who purchased under the prior judgment. It was determined that the plaintiff could not recover. The language of the Court is as follows: — “If the execution in favour of Kane had been issued within the year and a day, any lands purchased and possessed by third persons, after the docketing of the judgment, might have been sold. Here the plaintiffhaving lain by, for more than a year and a day after he bad obtained judgment, it became necessary to revive it against the original defendants, which, when revived, was of the same force and effect, and of course liable to be proceeded upon in the same manner, as if the time within which, an execution might legally have been issued, had not been suffered to elapse.” The Court further says, if the defendant could make the defence which the terretenant might have made to the scire facias, had he been admitted a party, it would not alter the-result. Jackson, ex dem. Sternberg, v. Shaffer, 11 Johns. R. 513. This is a strong case, and directly in point.

It appears to us, that the binding efficacy of a judgment continues upon land after a year and a day, although the-power of taking out execution on it without a scire facias be suspended (2) We have always had a statute, at least as strong as that of West. 2, by virtue of which judgments are liens upon real estate. We have a statute of frauds too, which, like that of Ch. 2, prevents the lien, as regards purchasers, from relating back further than the time of signing. We have no statute however, like that of Pennsylvania, which limits the time forward, beyond which the lien shall cease to operate, unless revived by scire facias (3). The conclusion, we think, cannot easily be mistaken. The defendant in this cause is a terretenant, and has a right to plead in bar any thing which shows his land not liable to the execution. If bis plea had stated a bona fide purchase by him from Gilwick, the original defendant, prior to the signing of the judgment, it would have been a good bar; but the alienation pleaded, being subsequent to the judgment against his grantor, is no answer in our opinion to the scire facias.

Nelson, for the plaintiff! Howk, for the defendant.

Per Curiam.

The judgment is affirmed with costs.

This is the common law. 1 Prest. Abst. 191. 3 id. 325, 350. — 4 Kent, 429, 430. It is the law in New-York. Ibid. But in Pennsylvania, after-acquired lands are not bound until the issuing of execution. Calhoun v. Snider, 6 Binn. 135.

Contra in Virginia Eppes v. Randolph, 2 Call, 125, 186. In that Slate there is no statute expressly making a judgment a Ken on land. The lien there results from the right to take out an elegit. During the existence of this right, says C. J. Marshall, the lien is universally acknowledged. Different opinions seem at different times to have been entertained of the effect of any suspension of the right. United States v. Morrison, 4 Peters, 136. In Kentucky, a judgment does not bind land, until the execution is delivered to the sheriff. In this respect, real and personal property are there on the same footing. Bank U. S. v. Tyler, ib. 383. For the statute law in the states generally, as to the liability of real property tojudgment and execution, vide 4 Kent, 425 — 431. The statute of this state, there referred to, prohibiting the sale of land on execution for less than one-half its value, is repealed. Here, now, if the rents and profits for seven years will not sell for a sufficient sum to satisfy the execution, the fee-simple is sold to the highest bidder. Stat. 1823, p. 188. By this statute, a judgment is expressly made a lien on land, in the county where rendered, from the day of its rendition; and, in any other county, from the time an attested copy of the record of the judgment is filed and recorded in the clerk’s office there. Ib. p. 192. For the statute of frauds referred to in the text, vide Stat. 1823, p. 218. Every clerk is bound to keep a docket (i. e. index) of judgments, to facilitate the search for them. Stat. Dec. 1825, p. 50.

For the English law respecting the encumbrance on real estate by judgment, wide 3 Prest. Abst. 311 — 354. The commencement of the lien is there Spoken of as follows: Judgment by a creditor against an heir was binding on the land by relation to the time at which the action was commenced. With this exception, judgments, statutes-merchant, and of the staple, and recogniz anees, are binding on the land of the debtor, as against him and his heirs, only from the time at which they are respectively entered of record and as to judgmerits, the time to which they relate, as the return of the writ, &c. but as against purchasers for a valuable consideration, and in equity without notice, only from the time at which judgments are docketed, and recognizances are enrolled. But, inasmuch as these encumbrances are a'lien on the debtor and his heirs, they are in equity a lien on the purchaser, who before the completion of his puvehase has notice of these securities. And with respect to lands in register counties, the lien of judgments does not attach at law until registration of the several deeds and encumbrances, in the mode prescribed by the several register acts. But a purchaser is bound by these encumbrances although they be not registered, in case he has notice of these encumbrances prior to the completion of his purchase, by taking a conveyance, or payment of his purchase-money. As between judgment-creditors, &c. each will have priority according to the date of the lien. Ib. 345.

Judgments now cease to be liens on real estate, after the lapse of 10 years from the time of their rendition, unless revived by scire facias. Stat. Dec. 1825, p. 49.