Thomas C. Rockhill, Wade T. Smith, and William P. Rockhill, Plaintiffs, v. Robert Hanna, Asa B. Strong, Edward Heizer, Aaron Aldridge, Robert B. Hanna, David Shields, Thomas Johnson, Jeremiah Johnson, and George Bruce, 15 How. 189

Mr. Justice GRIER delivered the opinion of the court. This' case comes before us on a certificate of division of opinion between the Judges of the Circuit Court of the United States for the District of Indiana. It is an action on the official bond of the marshal, and the questions certified arise on the following facts: Rockhill & Co., the plaintiffs in this issue, and Price & Co., and Siter & Co. had each entered up judgments on the same day, (19th November, 1838,) against John Allen. On 5th. of March, 1839, Price and Siter issued fi. fas which were levied on. the lands of Allen.

On the 7th of February, 1839, plaintiffs issued a ca. sa., on which the defendant, Allen, was arrested and imprisoned till the passage of the act of General Assembly of Indiana, of 13th of January, 1842", to' abolish imprisonment for debt; by virtue whereof he was released, on the ground that this act had been adopted by act of Congress.

The plaintiff afterwards, in March,' 1844, on affidavit and proof of the1 defendant’s discharge by force of the insolvent law, had leave of. the court to issue a fi. fa. which was levied on the same land previously seized in March, 1839, on the. executions issued on the other judgments; and the marshal was proceeding to sell, when writs of vend,, exp. on these judgments were'put in his hands. A sale was made, but afterwards set aside by the court.

In May, 1844, writs of vend. exp. on all three of the judgments were put into the hands of the marshal — on these, the property of Allen was sold, the money raised being insufficient to pay all the judgments. Plaintiff (Roekhill) claimed that the money should be applied first to the satisfaction of his judgment; Price and Siter claimed that it should be applied to satisfy their judgments first. Whereupon the court certified a division of opinion on the following questions: “1st. Whether or not the plaintiffs in this suit are-entitled to more than their distributive share of the proceeds of the sale. 2d.

Whether they are not entitled to the whole proceeds, to the extent of what is justly due on their judgment* 3d. Or whether the executions first levied are not entitled to the whole proceeds of the sale. • 4th.

Or whether there can be any preference recognized by reason of superior diligence, the judgments being of equal dates, and not impeached.” In the State of Indiana, judgments are liens upon “the real estate of the persons against whom such judgments may be rendered, from the day of the rendition thereof.” 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 the other.

In England, when several judgments are entered to the same term, (and by fiction of law, the term consists of but one day,) the judgment creditor, who first extends the land by elegit, is thereby entitled to be first satisfied out of it. The case would be much stronger, too, in favor of the first elegit, if one of three judgments had levied a fi. fa: on the goods and chattels of the defendant, the second taken his body on a ca. sa., and the third laid his elegit on his land. For each one, having elected a different remedy, would be entitled to a precedence in that which he has elected.

This principle of the common law has been , adopted by the courts of New York, as is seen in the cases of Adams v. Dyer, 8 Johns. 350, and Waterman v. Haskins, 11 Johns. 228; and also by the Supreme Court of Indiana, in Marshal v. Boyd and others, where it is said, the mere delivery of an execution, as in case of personal property, will not give a. priority, but the execution first begun to be executed, shall be entitled to priority.

The application of these principles to the present case would give the preference to the judgments of Siter and Price, which were levied on the land five years before the plaintiff’s levy on the same.. An execution levied on land, is begun to be executed, and is an election of the remedy by sale of it; and the mere delay of the sale, if not fraudulent, injures no one and cannot postpone the rights of the creditor who has first seized the land and taken it into the custody of the law for the purpose of obtaining satisfaction of his judgment.

If he has obtained a priority over those whose liens are of equal date, by levying his execution, he is not bound to commence a new race of diligence with those whose rights are postponed to his own. There may be a different rule as to a levy on personal property, where it is suffered to remain in the hands of the debtor. But liens on real estate are matters of record and notice to all the world, and have no other limit to their duration than that assigned by the law.

But we do not think it necessary to rest the decision of this case, merely on the question of diligence, or to decide whether this doctrine has been finally established as the law of Indiana. The plaintiff’s lien does not, by the statement of this case, stand on an equality as to date with that of the other judgments. By electing to take the body of his debtor in execution he has postponed his lien, because the arrest operated in law as an'extinguishment of his judgment.

It is true, if the debtor should die in prison, or be discharged by act of the law without consent of the creditor, he may have an action on the judgment, or leave to have other executions against the property of his creditor, The legal satisfaction of the judgment, which for the time destroys its lien and postpones his.rights to those whose liens continue, is not a satisfaction of the debt, but, as between the parties to the judgment, it operates as a satisfaction thereof.

The arrest waives and extinguishes all other remedies on the goods or lands of the debtor while the imprisonment continues, and if the debtor be discharged by the consent of the creditor, the judgment is forever extinguished; and the plaintiff remitted to such contracts or securities as he has taken as the price of the discharge.

But if the plaintiff be remitted to other remedies by a discharge of his debtor by act of law, or by an escape, it will not operate to restore his lien on the debtor’s, property, which he has elected to waive or abandon as against creditors who have obtained a precedence during such suspension. The case of Snead v. McCoul, 12 How. 407, in this court, fully establishes this doctrine. It is to be found in the common law' as early as the Year Books, and is admitted to be the. law in almost every State in the Union. . See Year Book, 33 Henry VI. p. 48; Foster v.

Jackson, Hobart, 52; Barnaby’s case, 1 Strange, 653; Vigers v. Aldrich, 4 Burr. 2483; Jaques v. Withy, 1 T. R. 557; Taylor v. Waters, 5 Maule and Selwyn, 103; Ex parte Knowell, 13 Vesey, jun. 193, &c., &c., &c. And in New York, Cooper v. Bigelow, 1 Cow.; Ransom v. Keys, 9 Cow. 128; 5 Wend. 58. In Pennsylvania, Sharp v. Speckenyle, 3 Serg. & R. In Massachusetts, Little v. The Bank, 14 Mass. Rep. 443.

The insolvent law of Indiana which discharges the person of the debtor from imprisonment upon his assigning all his property for the benefit of his creditors, provides that his after acquired property shall be liable to seizure, and also that liens previously acquired shall not be affected by such assignment and discharge; but it does not afféct to change the relative priority of lien creditors, as it éxisted at the time of the discharge, or to take away from any lien creditor his prior right of satisfaction, which had been vested in. him previous to such discharge.

Neither the letter nor spirit of the act will permit a construction which by a retrospective operation would divest rights vested before its passage. We are of opinion, therefore, that the several questions certified from the court below, should be answered as follows: — 1st. That plaintiffs in this suit are not entitled to more than their distributive share of the proceeds of the sale. 2d. That they, are consequently, not entitled to the whole proceeds to the extent of what is due on their judgment. 3d.

The executions of Siter & Co. and of Price & Co. are entitled to be first satisfied from the proceeds of the sale: 4th. That the decision of the preceding questions, being a disposition of the whole case, it is unnecessary to give any answer to the fourth question. Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District Of Indiana, and on the points or questions on which the judges of the said Circuit Court were opposed in opinion and which- were certified to this court .for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the -opinion of this court. 1. That the plaintiffs in this suit are not entitled to more than their distributive share of the proceeds of the sale. 2.

That they are .consequently, not entitled to the whole proceeds to the extent of what is claimed on their judgment. 3. The executions of Siter &, Co. and of Price & Co. are entitled to be first satisfied from the proceeds of the sale. 4. That the decision of the preceding questions being a disposition of the whole case, it is unnecessary to give any answer to the fourth question, which is an abstract proposition not necessary to be decided by this court. Whereupon it is now heréby ordered and adjudged by this court, that it be so certified to the said Circuit Court.