W. H. Kimball, Sheriff of Jackson County, vs. J. W. L. Jenkins, Adm'r. of Williams Daniel, dec'd., 11 Fla. 111

DcPONT, C. J., delivered the opinion of the court. The record before us shows that Messrs. Crane, Boylston & Co., in April, 1862, obtained a judgment at law against Williams Daniel, upon which judgment execution was issued and placed in the hands of the Sheriff in the lifetime of the defendant, but which remained unexecuted at the time of his decease. Afterwards . letters of administration were granted to the appellee upon the estate of the said deceased.

On the 23d of January, 1866, the said execution was levied upon twenty bales of cotton in the hands of the administrator Jenkins, who thereupon filed his bill for injunction, suggesting the insolvency of the estate, and obtained an order to enjoin the sale-thereof, upon the ground that the said claim was to be settled pro rata, with the other demands against the estate. There was also an agreement between the parties that the cotton should be sold and the money paid into the registry of the court to abide the result of this appeal.

From- the order granting the injunction this appeal is taken, ami is now submitted to this court for final adjudication. The question arising in this case grows out of a seeming discrepancy in the phraseology of the act of 1828, and that of the subsequent act of January 8th, 1853, prescribing the order in which the debts of estates are to be paid.

In the act of 1828, (Thompson’s Dig. 206, § 3,) it is provided that “ executors and administrators shall pay the debts of the deceased in the following order: first, the necessary funeral expenses; next, debts due for board and lodging during the last sickness of the deceased; next, physicians’ and surgeons’ bills for medicines and attendance during the last sickness of the deceased; next, judgments of record rendered and docketed in this State, during the lifetime of the deceased, and all debts due to this State; and finally, all other debts whether by specialty or otherwise, without distinction of rank.” The subsequent act of 1853, (Famph.

Laws of 1852-’3, p. 106, sec. 4,) provides, “that upon the final settlement of estates, under the provisions of this act, the expenses of the administration of the estate shall be first paid, and the funeral expenses of the deceased shall be next paid, and all other claims or demands allowed against such estates shall be paid pro rata" In contrasting these two acts it will be seen that while the act of 1828 assigned to “judgments of record” a specified place in the order of payment, the mention of them is entirely omitted in the subsequent act of 1853, and it is hence inferred and insisted upon, by the counsel for the appellee, that this omission shows a clear intention of the Legislature to exclude this class of debts from the list of preferred claims, and to place them on a footing with simple contract debts.

In enforcing this view of the case, the counsel very properly called the attention of the court to the familiar rule that in the construction of statutes the old law and the mischief to be remedied was to be considered. The court recognizes the correctness and value of the principle invoked, but does not perceive either the necessity of its application in the

interpretation of the statute now under consideration, or the benefit to accrue to the appellee by its adoption as a rule of Construction.

In the opinion of the court, if there was any mischief contained in the act of 1828, which it was designed to remedy by the enactment of the statute of 1853, it was, that the rule of the common law which gave to “judgments ¡of record” a priority over simple contract debts had been altered by that act, and they subordinated and postponed to ■“ debts due for boarding and lodging during the last sickness of the deceased, and physicians’ and surgeons’ bills for medicines and attendance during the last sickness of the deceased.” The net of 1853 in omitbmg to mention this class of demands, “judgments of record,” in the order of payment, ^did nothing more than to relieve them from the subordination imposed by the act of 1838, and thus restore them to the rapk and dignity assigned by the rule of the common law.

For it is a veil established principle that a common law right capnot be taken away by mere implication. We do not question the authority of the Legislature to place “judgments of record” upon a footing with, and even to postpone them to the payment of simple contract debts, but then to do so, they must couch their enactments in appropriate language. In the act of 1828 the Legislature exercised this authority, and no question can be made as to their intentions.

But should we be in error as to the effect to be given to the act of 1853, there is one view of the case which is decisive of the right of the plaintiff in execution to maintain his priority of payment. By the statute law of the land, from the organization of the territorial government to the present time, “judgments” were given a lien on the land of the defendant from their rendition. (Vide Th'omp. Dig. 352, note a.) It was also declared by the act of 1829, (vide Thomp.

Dig. 21, § 2,) that “ the common and statute Jaws of England, which are of a general and not of a local nature, with ⅛⅜ oxceptiop hereinafter mentioned, down to the 4th day of July, 1776, be and the same are hereby declared to be of force in this State, &c.” Amongst the British statutes thus adopted and made a part of our law is that of 29th Car. II. G. 3, § 16, which limits the common law lien on the defendant’s goods, by virtue of the fieri facias, to the time such writ shall be delivered to the Sheriff.

By reference to the facts of the case, it will be seen that the judgment was , obtained and the fieri facias issued and placed in the hands { of the Sheriff during the lifetime of the intestate, and thus a j lien upon both his land and goods had attached, and re-^ mained in full vigor at the time of his death.

It is true that this is but a statutory lien, or one given by mere operation of law, but in the absence of any positive statute of our own limiting its force and effect, we know of no good reason why it should not be esteemed of as high dignity and as sacred in its character as a conventional lien, or one given by the contract of the parties. We are fully sustained in this view of the case by the highest authority. In the case of Rankin et al., vs. Scott, (12 Wheat. 177, 6 Con. Rep. 504,) C.

J< Marshall says, “ a statutory lien is as binding as a mortgage and bas the same capacity to hold lands, so long as the stat-irte preserves it in force.” In the case of Andrews vs. Doe ex dem. Wilkes, 6 Howard’s Mississippi Rep’ts 554, Chief Justice Sharkey says, “ there can be no difference in principle between a mortgage and a statutory lien. The one is as binding as the other.” This doctrine is fully recognized and sanctioned by this court in the case of Mosely vs. Edwards, reported in 2 Fla. Repts. 439.

It will thus be seen that at the date of the death of the intestate, the plaintiffs in execution, by virtue of their judgment and execution, held a lien on all the estate of the decedent, as binding as though that estate bad been mortgaged to him, so long as the law or statute creating that lien should continue in force. The question then arises, is there anything in the act of 1853 which would indicate a design on the part of the Legislature to vacate, impair or modify that lien?

It is insisted by the counsel for the appellee that the words of the statute, “ all other chairas and demands,” have that effect, and are sufficiently comprehensive to embrace the claim now contended for. But if this be so, will not the words equally embrace a claim secured by mortgage, and yet no one would pretend to advance such a doctrine.

As long as the law which created the lien is continued in force, in the words of Chief Justice Marshall before cited, “ a statutory lien is as binding a as mortgage.” It is not pretended that there is in the statute of 1853 any positive words vacating or impairing this lien, but the conclusion is arrived at by a mere implication of too vague and uncertain a character to warrant us in depriving the party of a right secured to him by the common law and confirmed by a statute of ancient date.

If the Legislature designed to divest this class of claims of their long established lien upon the estate of the decedent, they have certainly failed of their purpose in the enactment now under consideration. To do so, they ought to have used more positive terms, and not left their intention to be gathered from a mere omission, or at best, a doubtful

interpretation. Liens, whether by contract of the parties or by operation of law, are of too sacred a character to be divested or even impaired by vague and uncertain implication. Both policy and morality require that they should be sustained, whenever it may be done without a violation of positive law. The case of Dye, Adm’r, vs. Bartlett, (7 Howard’s Miss. Repts., 224,) was cited by the counsel for the appellant, but not having had access to the volume, we are unable to determine how far it sustains his case. In the reference, however, which we find in 8 Howard’s S, G. Bepts., Ill, in the case of Williams vs.

Benedict, it would seem to be exactly in point, and we regret that we have not been able to examine it. It may not be out of place to refer, by way of analogy, to the laws of the United States giving priority to the government in eases of insolvency. So far as we have had access to these laws, we find no saving clause as to “ prior liens,” and yet in the adjudicated cases they are universally recognized and preserved.—Vide 2 Wheaton R., 396 ; 3 Cranch E., 373 ; 1 Peters R., 386.

The question arising out of this record being one that must frequently occur in the administration of estates, we have endeavored to give it a patient and careful investigation, and are inclined to the opinion that, in the enactment of 1853, it was not so much the design of the Legislature to interfere with the order prescribed in the act of 1828, for the payment of debts, as to provide a more ready and convenient mode for the settlement of insolvent estates.

As, however, the adjudication of this point is not necessary to the decision of the case before us, we would not be understood as being committed to the opinion above expressed.

In accordance with the conclusion arrived at in the foregoing opinion, it is ordered, adjudged and decreed, that the decree of the Chancellor be reversed, and that the injunction heretofore granted in this ease be annulled and set aside and the bill be dismissed; and this court, in proceeding to render such order and decree as should have been rendered in the court below, doth order adjudge and decree that the twenty bales of cotton mentioned in complainant’s bill of complaint be sold in accordance with the terms entered into between the parties, and which is made a part of the record in this suit, and that the proceeds thereof be applied first to the payment of the appellant’s fi. fa., with all costs accruing thereon, and the surplus if any to be paid over to the appel-lee as administrator on the estate of Williams Daniel, deceased, to be appropriated in due course of administration.

It is further ordered that the costs of this appeal be paid by the appellee and te> be allowed him in life settlerejea-t ol the estate-