Andrews v. Doe ex. dem. Wilkes, 6 Howard 554

Mr. Chief Justice Sharkey stated the case, and delivered the opinion of the court. The question is, whether a prior sale under a junior judgment, destroys' the lien of the elder judgment. - It is freely conceded.by 'cotinsel, that as a general rule it does not, but that this case forms an exception, inasmuch as the liens accrued under different jurisdictions. But as the whole question is fairly before the court for the first time, it is proper that it should be judicially settled.

The act of 1824 declares i(that in all cases the property of the defendant shall be bound and liable to any judgment that may be entered up, from the time of entering such judgment.” How. and Hut. Dig. 621. This is emphatically a general lien on all property in favor of the plaintiff. A lien is a right given by law to have a debt satisfied out of a particular thing. It may originate by 'contract or by operation of law, and in either cáse .the effect is the ' same. The property being bound arid liable to satisfy'the judgment, it was as much a lien as. though it had been created by the act of the parties.

It was a right given' by3 law to have- the debt satisfied out of any or all of the defendant’s property. We regard .it as a well settled principle, that a lien fairly acquired, cannot be destroyed, in favor of one having a notice of that lien, unless it be by some act of the party in- whose favor it. exists. The courts cannot divest it, and much less can the ministerial officers of the law do so.

If they could do so it would be but a lien sub modo, whereas the law annexes no qualification. ■ The courts have not the power of engrafting conditions on statutes, which in themselves contain none.' It is true that courts may look to the intention of the legislature and the design of a statute, and may therefore construe it according to its spirit, although it may in some measure seem to conflict with the letter of the statute. But in this case there can be no room for doubt; the intention is plainly indicated by the language used. We can neither add to, nor qualify the law.

The judgment is not only á lien, but it is a lien of record, which is notice to every one. On what principle is it, then, that such a lien could be divested in favor of one who knew of its existence. He can have no superior right to urge, not even an equity to set up against it; he purchases with knowledge of the prior lien, and it is to be supposed that he gives what an incumbered property is worth. Having purchased subject to an incumbrance, he may if he chooses extinguish that incumbrance, and make his title perfect.

The instance of a mortgage lien is a familiar one; If the junior mortgagee foreclose his mortgage, he does not thereby destroy the lien of the prior mortgage, and the purchaser under the junior mortgage holds subject,to the prior lien, unless it be in cases where there is an implied assent of the prior mortgagee, but this is

an act of his own. There can be no difference in principle between a mortgage and a statutory lien. The one .is as binding as the other; and I can see no reason for holding one to be discharged by

an act which will not affect the other. Indeed in the case of a mortgage, the solemn judgment of the court decreeing the land to be sold will not divest the lien. The .lien in this case stands, if possible, on higher grounds; it accrued by the solemn judgment of-a court of competent jurisdiction, and on what principle is it .that a mere ministerial officer, by matter in pais, can overreach such "an incumbrance by an. act of his without-the assent and often without the knowledge of the prior judgment creditor.

A priority of lien entitles the holder to priority of satisfaction, and the only exception which this rule adriiits of, when the liens are of record, must arise out of the .party holding the lien. We are aware that according to the course of the decisions in England, and also in some of the states of this Union, a sale of chattels under a junior execution has been, held to. pass title, yet such cases are not analogous to the present.

By the common law, lands could not be taken under execution at the suit of a subject, the goods and chattels alone being liable, and they were considered as bound from the teste of the execution. The executions always, bore téste of the preceding term, .and it was considered inexpedient that property should be bound by a writ before it had in reality emanated, but which by a fiction related back to the preceding term.

This was remedied by the statute of 29 Car. 2, c. 3, by which it was declared that the execution should only bind the goods and chattel's from the time it was delivered to the sheriff, who was required to indorse on it the time when received.

Under, the common law it is scarcely probable that the question of priority of lien produced any difficulty, as executions which bore teste generally of a preceding term were considered as equal liens; but under the statute the decisions have been numerous on the point, and it has .generally been held that he who first began to execute acquired a priority, at least so far as to, protect the sheriff’s vendee. The decisions are based upon two considerations. 1.

The courts held that it was bad policy to interrupt the sales made by sheriffs, as that would deter purchasers,- and thus innocent persons would often suffer. .2. The sheriff was required to levy under the first execution which he received, and if he failed to do so, the aggrieved party had his remedy against him, and this was considered an indemnity.

It'was undoubtedly policy that those sales should be.upheld, because as the 'property was only bound from the delivery of the writ to the sheriff, which was purely a matter in pais, purchasers could have no notice of a. prior lien, and hence persons buying in good faith, under ’a different rule of decision, would, have been the sufferers. With such impending risks, it was not to'be expected that property would sell for its value.

This would operate prejudicially to both debtor and crédito];; hence the courts yielded to policy, and they had an additional reason for doing so, because of the recourse which the injured party had against the sheriff. ' But unless we subvert the uniform principle that whatever is of record is notice to every person, such considerations can have no weight here. There can be no policy in protecting a .purchaser against an incumbrance of which he had notice,' because he is not likely to give more than the property is worth, subject to the incumbrance.

There can be no danger of an injury to purchasers, as every one must know what he is buying; No one would be deterred from buying, as they might be, if uninformed as to incumbrances. The purchaser under a decree to foreclose a junior mortgage, takes the property subject to the elder mortgage, because he is a purchaser with notice, the prior mortgage being a matter of record of which he is bound to take notice. So it is with purchasers at sheriff’s sale. The judgment is a general lien of record, of which the purchaser is bound to'take notice.

This is the principal difference between judgment liens and execution liens; the one is matter of record, and the other is matter in pais. But this is not all. The statute making a judgment a lien, does not require the sheriff to make the first levy under the oldest judgment, and by removing the lien, the party would, in mány cases, be left without any indemnity; hence we conclude that on principle there can be no doubt about recognizing the lien of the elder judgment. The question here presented is not a new one; The most approved adjudged cases are in conformity with what we''have said.

The case of Rankin & Schatzell v. Scott, 12 Wheaton 177, cannot in- any feature be distinguished from the present case. It arose under a law of Missouri, making judgments a lien. The property was first sold under the junior judgment, but the purchaser at the subsequent sale under the older judgment prevailed. The distinction between execution liens on personal property and judgment liens on land, was taken by Chief Justice Marshall, and he remarked that there was no analogy, because one was matter of record and the other not. The case of Rankin i>.

Scott was acknowledged to be the law by Judge Baldwin, in the case of Thomson ¶. Phillips, tried in Pennsylvania, where a judgment is made a lien upon land, and yet he felt himself bound to conform to state decisions. The judge declares that if the question had been open in that state, he would have followed the case of Rankin v. Scott. See 1 Baldwin’s Rep. 246. The same doctrine is also explicitly declared by Judge Story, in the case of Conrad v. The Atlantic Insurance company, 1 Peters, 443.

He says, that a general lien on land by judgment does not per se constitute a right of property, but it confers a right to levy to the exclusion of other adverse interests subsequently acquired. ‘ And when the levy is made, the title relates back to the judgment, and cuts out intermediate incumbrances.

Subject to this the debtor has power to sell, or “ it may be levied upon by any other creditor, who is entitled to hold it against every other person except such judgment creditor, and even against him, unless he consummates his title by a levy on the land under the judgment. ' In that event the prior levy is as to him void, and the creditor loses all right under it.” This is also the rule in New York, and we find no decision's to the contrary. The case' referred to in 3 Murphey’s Rep. 43, was decided on1 different grounds.

The elegit is in force in North Carolina, but none of the contending parties had proceeded in that -way. The statute of Geo. II. which rendered lands liable for debts in thébolonies, only made them liable as chattels, unless' the party should choose to proceed by elegit. The executions had been all delivered to the sheriff on the same day, and they were all levied on the land.

The court did not, as'they had proceeded by fieri facias, consider the land bound by the judgment, but considered it bound as chattels, by the delivery of the writ to the sheriff, and as there was no priority of lien, the money was divided in proportion to the demands. -The only remaining'question, and the one on which'counsel mainly rely, is, whether the rule which we have laid down is the true one where the lien accrues under the judgments of courts of different jurisdictions, one of these judgments being in the district court of the United States, and the other in a circuit court of the ■state.

It will scarcely be expected that we should undertake to prove that the same law, in all things except on points of practice, prevails in both courts; this would be supererrogation. The United States, as a government, has no municipal law except the constitution and acts of congress. Even the supreme court of the United States bases its decisions on the laws of the state from which the case was taken. The same law, then, operating in both courts, how can there be a difference in the character of the lien? We are at a loss to perceive any ground for the distinction taken.

It is evident that a judgment in the United States court is as much a lien as the judgment of a state court; and the judgments in that court being matters of record, which parties are as much bound to notice as they are judgments of the state courts, it would follow that a purchaser at sheriff’s sale under a younger judgment, would be a purchaser with notice of the older judgment in the United States court. But it is said that a conflict of jurisdictions might be the consequence of allowing a re-sale of property which had previously been sold by authority from either of the courts. But this cannot be.

It is the most effectual way to prevent a conflict of jurisdictions. We admit the lien created by their judgments; they must admit the lien created by ours, because under our law both liens originate, and the effective operation of the lien being admitted, no difficulty can ever arise in settling the rights of parties, unless indeed the judgments should have been rendered so nearly at the same time as to make it difficult to ascertain which was the oldest. And the same difficulty might occur as between our state courts; but this cannot be said to be a conflict of jurisdiction. The case cited from Dev. <fc Bat.

Rep. furnishes no authority for the ground taken by counsel. The contest was between the sheriff and marshal, the one having levied on property which the other claimed to levy under a prior right; and the court decided that after a levy had been made, the property could not be taken from the one officer by the other, because such a course might produce a conflict of jurisdictions.

Under our law even such a question as that cannot very well arise, since a sale under the younger judgment does not divest the older lien, and the property may be again sold; but it was not so in North Carolina, the property being bound from the delivery of the writ to the sheriff. On neither of the grounds taken, therefore, do we think the judgment can be reversed. The case of Michie v. The Planters Bank, 4 Howard, 130, has been cited for the plaintiff in error. In the decision of that case, the question here presented was intentionally avoided.

We expected that it would come up, and did not wish to make a premature decision. We recognize in this decision what was settled in that, to wit: that a prior lien may be postponed by the act of the party. The judgment must be affirmed.