Babcock v. Jones, 15 Kan. 296

Babcock v. Jones

15 Kan. 296 | Kan. | 1875

The opinion of the court was delivered by

Brewer, J.:

The only question in this case is, as stated by counsel in their briefs, and as appears from the record, whether a judgment in this state is a lien on after-acquired lands of the judgment-debtor in the county, or binds only those belonging to him at the time the judgment takes effect, that is, either the first day of the term, or the day at which it is entered. The language of the statute is:

“Judgments * * * shall be liens on the real estate of-*301the debtor within the county in which the judgment.is rendered from the first day of the term at which the judgment is rendered; but judgments by confession, and judgments rendered at the same term during which the action was commenced, shall bind such lands only from the day on which such judgment was rendered.55 Civil Code, §419.

This question has been before the courts of many states, and decided both ways. In Pennsylvania, Ohio, Iowa, and Mississippi, it has been decided that a judgment-lien does not bind after-acquired lands. Rundel v. Ettwein, 2 Yeates, 23; Calhoun v. Snider, 6 Binney, 135; Packer’s Appeal, 6 Barr, 277; Morehead v. McKinney, 9 Bar’r, 265; Richter v. Selim, 8 Serg. & E. 425; Waters’ Appeal, 35 Penn. St., 523; Roads v. Symmes, 1 Ohio, 281; Stiles, ex dem., v. Murphy, 4 Ohio, 92; Harrington v. Sharp, Adm’r, 1 G. Greene, 131; Woods v. Mains, 1 G. Greene, 276; Moody v. Harper, 25 Miss. 484. In the case of Calhoun v. Snider, supra, in which is the fullest and most exhaustive discussion óf the question, Ch. Justice Tilghman, while assenting to the judgment upon the strength of a prior adjudication, expressed a strong dissent to the soundness of the doctrine, a dissent repeated by the court in the case of Richter v. Selim. On the other hand, the courts of New York, Virginia, West Virginia, Tennessee, Indiana, Illinois, Minnesota, and Arkansas, hold that the judgment does bind after-acquired lands. Stow v. Tifft, 15 Johns. 464; Jackson v. Rank U. S., 5 Cranch Ct. Ct. 1; Handley v. Sydenstricker, Adm’r, 4 West Va. 605; Greenway v. Cannon, 3 Hemp. 177; Chapron v. Cassady, 3 Hemp. 663; Davis v. Burton, 2 Sneed, 665; Relfe v. McComb, 2 Head, 558 ; Ridge v. Prather, 1 Blackford, 401; Michaels v. Boyd, 1 Ind. 259; Wales v. Bogne, 31 Ill. 464; Root v. Curtis, 38 Ill. 192; Steele v. Taylor, 1 Minn. 274; Banning v. Edes, 6 Minn. 402; Trustees R. E. Bank v. Watson, 13 Ark. 74. See also, Freeman on Judgments, § 367. A decision either way, therefore, would be well supported by authority. Counsel for plaintiff in error contend that our statute resembles the Ohio statute, and that therefore, adopting it, we adopt the construction *302given there. Our statute is not a copy of the Ohio statute; and while it resembles it very closely, yet little if any more so than it does the statute of some of the other states, as for instance, Tennessee. See 2 Sneed, supra. Nor do we under-' stand the Ohio court, in the case in 1 Ohio, in which the question was first decided, as resting their decision upon the peculiar language of their statute. It should perhaps be stated, that the statute now in force in Ohio, and from which it is claimed ours was taken, is not exactly like the one in force at the time of the decisions quoted.. (Chase’s Stat. 129.) That is even more unlike ours than the present. The language of the statute is not very clear or decisive upon the question. It would not be doing violence to its terms to construe it either way. We are inclined to favor the views of the last-named courts, and hold that the lien does bind after-acquired lands. A single fact favoring this view may be stated. The 4th section of the mortgage act, passed by the same legislature, but a few days after the code, provides, that “a mortgage given by a purchaser to secure the payment of purchase-money shall have preference over a prior judgment against such purchaser.” This tends to sustain the view that, but for this section, the prior judgment would be a lien, and a lien preferred to the mortgage.

The judgment will be affirmed.

Kingman, C. J., concurring.