108 Ala. 125 | Ala. | 1895
In December, 1891, T. L. & C. J. Houser obtained a decree against one Williams in the city court of Anniston. In January, 1892, they registered said decree in the office of the judge of probate, whereby it became a lien on said Williams’ property. Execution issued on this decree January 26th, 1892, andan alias on January 6th, 1894. Meantime on May 3rd, 1892. the First National Bank of Anniston obtained a judgment in said court against said Williams. On May 12th, 1892, an execution was issued thereon, and on May 7th, 1894, an alias execution was issued. This last execution was duly levied May 30th, 1894, upon the interest of Williams in certain land. After due advertisement the land was sold under said execution to the plaintiff therein for $100, deed was executed.to the purchaser, and the' execution was credited with said $100, less the costs. Thereupon T. L. & C. J. Houser entered a motion in the city court against the sheriff and the bank to require the sheriff to apply the proceeds of said sale to their judgment against Williams, or to the execution issued thereon June 6th, 1894, and which was in the hands of the sheriff at the time of the sale. The court granted the motion, and from that order the sheriff and the bank appeal to this court, and, apprehending that an appeal might not lie, they also apply, on the record in the appeal case, for a mandamus to the judge of the city court directing him to set aside and vacate said order.
The order in question should not have been made. The superior lien of the Houser judgment was in no wise affected by the sale under the bank’s execution. The sale was made subject and in entire ■ subordination to the lien of that judgment, and the purchaser took the land with the lien still on it, and with every remedy that at any time existed for its enforcement still existing and unimpaired. The prior lienors have no right to intercept the proceeds of the sale made under the
And of this doctrine, Somerville, Justice, in Lancaster v. Jordan, 78 Ala. 197, said : “We think it well settled that irrespective of this statute, a purchaser at an execution sale, made under an older or superior lien, obtains a better title to real estate, which is the subject of sale, than a prior purchaser of the same property under a junior or inferior lien. The simple reason is, that the thing sold under the junior execution is the title owned by the defendant, arid this being already subject to the incumbrance of the older lien, the purchaser is deemed to have taken it cum onere, just as he would in the case of buying such property subject to a valid mortgage lien of which he had due notice by registration or otherwise. And the holder of the superior lien may at any time, while it is kept alive, sell the land previously sold under the inferior lien, and such sale will carry with it a superior title. Such, we are prepared to admit, may be conceded arguendo to be the prevailing rule apart from all statutory regulations on this subject — Freeman ■ on
Judge Stone, in a case, arising under our present registration statute, apparently recognized the right of a junior lienor to sell subject to the prior lien of .a registered judgment; but he apprehends that such a sale would not promise encouraging results, and that complicating and embarrassing difficulties would arise respecting the custody of personal property so sold until it might be wanted in satisfaction of the lien of the registered judgment. — Decatur Charcoal and Chemical Works v. Moses 89 Ala. 542. It is to be noted that in the case just cited the subject matter was personal property. The statute referred to in the opinion of Judge Somerville quoted above is section 3211 of the Code of 1876, which is as follows : “The liens of executions as between different judgment creditors and between judgment creditors and purchasers from the defendant for valuable consideration, are declared to be : that if an entire term elapse between the return of an execution and the suing out of an alias, the lien created by the delivery of the first execution to the sheriff is lost; but if an alias be sued out before the lapse of an entire term, and delivered to the sheriff before the sale of property under a junior execution, the lien created by the delivery of the first execution must be prefered.” This statute has reference only to execution liens and no. bearing whatever on the judgment liens provided for by the act of 1887. So that what is said in that case has full application to liens arising by registration of judgments under said act. The recognition by this court of the right of a junior lienor to soli land subject to the superior lien of a registered judgment is thus manifest; and that right- is the basis for and logically and necessarily leads to the further proposition, as is so clearly demonstrated in the able opinion of Judge Sharkey, supra that as the older judgment lien is in no wise affected,by the sale under a junior lien, as nothing sold, is covered thereby, and as the junior .lienor receives nothing:from such sale that is, appropriable to the older judgment,- the- holder.'of-.such; judgment is not-entitled to have ..the .proceeds, thereof applied,. t.o the satisfaction of.
In the case at bar, the only lien- which the Housers had was the lien of their registered judgment. We do not doubt that this lien may be enforced through the instruméntality of an execution issued on such registered judgment under the act of 1891; but an execution so issued in and of itself imports no- lien and is. entitled to no priority as an execution merely, but only as representing, and being a statutory means of effectuating, the distinct lien of the judgment arising upon its registra-. tion. So that, as we have .said elsewhere,, tfee statute as,
We are aware that under the law as it existed prior to the Code of 1852, when judgments themselves, and without such registration as is now a prerequisite, constituted liens upon defendants’ property, it was held that an older j udgment lienor was entitled to the proceeds of the sale of lands made under a junior judgment. — Bagby v. Reeves, 20 Ala. 427. The opinion in that case is devoid of reasoning; its citation of authorities is unsatisfactory, and its conclusion, as applied even to the then state of the law, is we think, unsound. Moreover it is opposed to much more recent cases recognized the right of a junior judgment lienor to sell land subject to the lien of a prior judgment, from which necessarily flows the further right of such lienor to the proceeds of sale. And while, notwithstanding all this we might for the sake of uniformity of decision apply that doctrine to such judgment liens as existed when it was announced, we decline to extend it to the liens of judgments provided for by present statutes, which are less uncertain and more easily ascertained, and have been, not inaptly likened to the liens of recorded mortgages.
We, therefore, hold that the city court erred in granting the motion of appellees to apply the proceeds of the sale of William’s interest in certain lands to their registered judgment. That order will be vacated, and an order .here entered denying and dismissing said motion. Appellees having made no objection to the case being here by appeal,, we .do not consider whether appeal or mandcemus-wsks.. the proper .remedy of the bank and the. sheriff , . especially since .they-have presented the case, here in both .forms: r-
Reversed and rendered .-