101 Wis. 498 | Wis. | 1899
Lead Opinion
The plaintiff owned a judgment against the defendant Hopkins, which was rendered December 10,1811. On the 3d of December, 1891, execution was issued upon said judgment, by leave of court; and on the following day a levy was made upon certain real estate, and the same was advertised to be sold on the 31st of January, 1898. Motion was made by the defendant on the 11th of January, 1898, to vacate the execution and levy and all proceedings thereunder; and, upon the hearing, said motion was granted, whereupon the plaintiff appeals.
The question is whether an execution which is duly issued and partially executed by levying upon property within twenty years from the entry of a judgment expires at the end of the twenty-year period, or whether it remains valid and effective, so that the property so levied upon may be thereafter sold and applied to satisfy the command of the writ. Our .statute provides (R. S. 1818, sec. 4220) that a judgment of a court of record outlaws at the end of twenty years from the date of its rendition; and, further (R. S. 1818, sec. 2968), that “in no case shall an execution be issued, or any proceedings had on any judgment, after twenty years from the time of the rendition thereof.” It is very evident from this latter section that a valid execution may
By the Court — Order reversed.
Dissenting Opinion
(dissentmg). I think the limitation statutes mean that no proceedings of any kind, by execution or otherwise, shall be taken to enforce a judgment after the expiration of twenty years from its rendition; that the expiration
The necessity usually existing in writing a dissenting opinion, of attempting to clear away the case made by authorities on the other side of the controversy, does not exist here. That lightens my labor. It will be observed that my brethren do not ground their position on authorities. Bone was cited by the appellant. Bone was discovered by the learned judge who wrote the opinion of the court. Bone by those who concur therein. The writer has not been able to discover any. That all probably results from the fact that no authorities exist. In that situation, the decision of the court has the merit of meeting the question fairly and deciding it on the language of the statute, supported only by reasoning from seemingly false premises.
Sec. 4220, B. S. 1818, limits actions upon judgments to twenty years, and sec. 2968, B. S. 1818, provides that, “ in no case shall an execution be issued, or any proceedings had upon any judgment, after twenty years from the time of the rendition thereof.’' As indicated above, the expiration of the period of limitation extinguishes, and for all purposes ends, the life of the obligation affected by it. That is the settled rule of this court. Brown v. Parker, 28 Wis. 21; Sprecher v. Wakeley, 11 Wis. 432; Knox v. Cleveland, 13 Wis. 245; Freeman, Executions, § 27a. That of itself would seem decisive of this case.
The court reasons that the issuance of the execution and proceedings thereon are independent of proceedings on the judgment strictly so called; that when an execution shall have issued, the enforcement of it is a proceeding on the execution, not on the judgment. That seems unreasonable in
The reasons given by my brethren for the conclusions reached are inexplicable to me. It is said that unless such conclusion be correct, no execution against real estate can be made effective unless issued nearly a year and a half before the expiration of the twenty years, because the sheriff must advertise the sale for six weeks, and then there is the fifteen months allowed for redemption which must expire before the sale can be fully consummated by deed to the purchaser or his assignee. That suggestion shows, I assume, the principal reason for the decision of the court. The assumed result of a construction of the statute contrary to that reached by the court, was deemed so out of harmony with good reason ^ls to warrant a conclusion that the legislature did not intend it, and it was considered that the language of the section admits of a different and more reasonable construction. Remove the premises upon which the reasoning referred to is based, and the decision must necessarily fall as a result. Row it is not true that there must be a subsisting judgment during the period of redemption. Further, it is not possible that there -should be such a subsisting judgment. The sale to satisfy the judgment is inconsistent with its remaining unsatisfied for any length of time after the' sale. A sale of real estate on an execution, for the amount called for by it, satisfies it and satisfies the judgment as well. This court has decided that question and it is elementary. Ingraham v. Champion, 84 Wis. 235.
Thus, it will be seen that it is only necessary that a judgment should live for a period of about six weeks after the issuance of an execution in order to allow a valid sale to be made within the life of the judgment — not a year and a half,— so the significant reason advanced by my brethren, for the construction of the statute adopted, disappears.
Having now shown that the running of the statute of limitations upon a judgment extinguishes it, that there can be no proceeding on an execution issued on a judgment after it shall have been extinguished, and met successfully the chief and only reason for the decision dissented from, I will review briefly authorities elsewhere on the general and kindred subjects, and let that close this opinion.
In the first place I will refer to Ingraham v. Champion, 84 Wis. 235. That is of far greater significance, it would seem, than my brethren attribute to it. The sale there was
The opinion might well rest alone on Ingraham v. Champion, 84 Wis. 235, and Collins v. Smith, supra. If they decide anything at all they decide that it takes an existing' valid judgment to support an execution sale, and that by the sale the judgment is extinguished. Necessarily, if such be the case, there can be no sale to extinguish a judgment already extinguished by some other means.
Attention to the holdings elsewhere shows that the rule is universally recognized that an execution neither extends-nor revives a judgment. There are many such cases. I refer to a few of them: Mullikin v. Duvall, 7 Gill & J. 355; Johnson v. Hines, 61 Md. 122; Davis v. Ehrman, 20 Pa. St. 256; Isaac v. Swift, 10 Cal. 71; Bagley v. Ward, 37 Cal. 121; Rogers v. Druffel, 46 Cal. 654. Such cases are all to the effect that an execution is a mere means of collecting the-judgment or enforcing the judgment lien, and that a sale passes only such interest as attaches to the subject of the sale under the judgment at the time of the sale; that the execution of itself does not create a lien, or extend a lien, or support a sale. In Bagley v. Ward, supra, the court said, in substance, that the issuance of an execution and levy thereunder neither extends an old lien nor creates a new one ; that the sale carries to the purchaser just such interest as-may be represented by a then existing judgment. It is held that an execution does not affect the judgment, basing the doctrine on the ground that the opposite rule would operate-
To recapitulate: Eirst, the expiration of the limitation ■upon proceedings to enforce a judgment or to renew it, extinguishes it; second, an execution dies with the extinguishment of the judgment upon which it was issued; third, a subsisting judgment is necessary at the instant of the sale of realty upon an execution, but is extinguished by the sale; fourth, after the sale of realty upon execution, the right of the purchaser is referable to the certificate of sale, not to a subsisting judgment after the sale; fifth, as there can be no sale after the judgment shall have been extinguished, the -sale in question was void as held by the circuit court, and the judgment appealed from should be affirmed.