1 McLean 35 | U.S. Cir. Ct. | 1829
This action was brought by the Bank of the United States, to recover possession of a lot of ground in the city of Cincinnati, under a sheriff’s deed. The judgment on which the lot was sold was rendered in April, 1818, in a writ in which Adam Demsey was plaintiff, John Gibson and Thomas Heckwelder defendants. Execution was issued 2nd October, 1828, and levied on the property in controversy, 6th October, 1828. The sale was made the 7th November, and the sheriff’s deed was executed the 3rd of December following. The defendants also claim under a sheriff’s deed, bearing date 16th January, 1822. The judgment under which this sale took place was rendered in August, 1820, against the same defendants, at the suit of Thomas Graham. Execution was issued on this judgment, returnable to December term ensuing, which was levied on the same lot, and it was sold on.a pluries venditioni ex-ponas, the 24th December, 1821. Where the highest judicial court of a state has given a construction to its statutes, such construction is considered by the courts of the United States, as a rule of decision, unless it be repugnant to the laws or constitution of the federal government. This course is sanctioned by sound policy, and a due regard to the institutions of the respective states. The question involved in this controversy depends on the construction of the different statutes which regulate judgments and executions.
By the act of the 24th February, 1820, [section 2, 18 Ohio Laws, 180,] it is provided, “that the lands, tenements and real estate of the defendants shall be liable to the satisfaction of the judgment from the first day of the term in which the judgment is- entered,” &c. This act limits the lien of the judgment to real estate within the county, and from the time of levying the execution, on lands without the county. This act is repealed by the act of the 1st February, 1822, which does not alter the lien of the judgment. ’but provides, “that in all cases where the party obtaining judgment shall neglect for one year after the first day of the term in which such judgment shall have been rendered to-.sue out execution thereon, and cause •the .«ame to be levied according to the provision of this act, such judgment shall not operate as a: lien upon the debtor’s estate to the prejudice of any other bona fide judgment creditor.” The 16th section of this act provides “that no judgment heretofore rendered, on which execution shall not be taken out and levied before the expiration of one year next after the taking effect of this act, shall operate as a lien upon the estate of any debtor, to the prejudice of any. bona fide judgment creditor.’-’ ' This law was repealed by the act of the 4th February, 1824, which in the 17th section provides, [22 Ohio Laws, 114,] “that no judgment heretofore rendered or which hereafter may be rendered, on which execution shall not have been taken out and levied before the expiration of one year next after the rendition of such judgment, shall operate as a lien upon the estate of any judgment debtor to the prejudice of any bona fide judgment creditor.” Under this act the supreme court of the state have decided that the lien of any judgment, without reference to the time of its rendition, ceases to operate against a subsequent bona fide judgment creditor, if execution be not issued on it within the year. 2 Ham. [2 Ohio,] 65.
It is contended that the provisions of thiB act cannot be applied to judgments entered
The act of 1S24 had been in force several years when the levy and sale, under which the plaintiff claims, were made. The provisions of this act, therefore, apply to the case, and the question is, whether the proceeding on the junior judgment to a sale of the premises places the purchaser in a worse situation, than the judgment creditor would have stood, had the judgment remained unsatisfied after the execution was levied. That the purchaser at the sheriff’s sale is entitled to all the legal and equitable rights, which ■could be claimed by the judgment creditor, will not be doubted. Has the sale of the premises weakened the right of the judgment creditor; and is this right less strong in the hands of the purchaser, under the execution? The right which the elder judgment creditor possessed by virtue of his lien, was taken away by the act of 1824; and is it not the same thing, whether this right was destroyed by a levy on the property within the year, under the junior judgment, or by a levy and sale? The plaintiff in the junior judgment was more diligent than the plaintiffs in the elder judgment, and it was the policy of the statute to protect the diligent. Would it not be absurd to say that a levy would fix the right of the junior judgment creditor, and that this right was not transferred to the purchaser at the sheriff’s sale? Did this sale destroy or injuriously affect the lien of the judgment? Had the sale not been effected, the property was bound beyond all question, by the judgment and levy, and it was not liable to be sold under the prior judgment. The sale being made, would rather give additional force to the lien, than weaken it The law of 1824 has a retro
I confess 1 entertain some doubts as to the correctness of the decision, which, in effect, transfers the lien from the judgment to the levy of the execution. If the lien of the judgment be limited to the property levied upon, the judgment, after fhe levy, has no binding force on other real property within the county. The policy of the act seems to require diligence by a judgment creditor, and prevents his holding a judgment over the property of the debtor, so as to prevent other creditors from reaching it. But, it would seem to me, that the policy of the act, as well as its letter, would be carried into effect by issuing an execution on the judgment in good faith, within the year, and pursuing it with diligence. That the lien of the judgment should not be limited to the property levied on, but should continue to cover all the real property of the defendant within the county, until the money was made. The supreme court, however, have decided this question, and as their decision, giving a construction to the statute, forms the rule of decision in this court, I am disposed to acquiesce in the decision. Any objection to the return of the sheriff, in not designating with accuracy the different lots or pieces of property sold on the execution, is obviated by the deed.