3 Or. 420 | Or. | 1869
The statute of 1855, p. 304, secs. 78, 79, provides that judgments in justices’ courts, when a transcript was filed in the circuit court, and the judgment docketed in the judgment lien docket, should become a lien on the real estate of the judgment debtor. This judgment in question therefore became a lien on the land in question, on the same being docketed July 5th, 1861, which lien would have continued for five years from that time, had that statute remained in force until the same was superseded by our present statute (p. 206, secs. 266, 267), and it is claimed that the statute of 1855 was repealed by the statute of 1864 (Code, p. 944, sec. 3), and the lien thereby destroyed. Section three provides that no rights vested or liabilities incurred when the repealing act takes effect shall be thereby lost or destroyed. We hold that a judgment lien on real estate is an incident to the judgment, and is a liability incurred, and that the lien was therefore saved from the effect of the repealing statute.
The next question is, did our present statute, providing for judgment liens, extend liens created under the statute of 1855, which existed at the time the present statute took effect?
The present statute provides that liens of this nature shall continue while an execution may issue on the judgment. (Code, sec. 266.) Section 292, p. 216 of code, provides, that whenever, after the entry of judgment, a period of five years shall elapse without an execution being issued on such judgment, thereafter an execution shall not issue except as provided, which requires a proceeding in court to revive the judgment for that purpose.
Section 267, p. 206, provides, that “whenever, after the entry of judgment, a period of ten years shall elapse without an execution being issued on such judgment, the lien thereof shall expire.” These provisions — 1st, that the lien shall continue while an execution may issue; 2d, that no
The judgment lien is created by statute, and, without any provision limiting it as to the time it should run without being foreclosed, it would run indefinitely. It was first limited to five years, and when that limit was extended, and the lien preserved, continued to run and bind the land to the time limited by the second statute, which by the construction given to section 267, would be ten years from the date of the judgment, when no execution is issued; and when execution is issued, then during the time the judgment is kept alive, so that an execution may issue thereon; and every issue of an execution, it would seem, extends the lien for five years.
There is another point made by the respondents in this case: it is insistod that the judgment was not properly docketed, it being in the name of S. Marks & Co. v. James Patton et al., not setting out the names of the partners constituting the firm of S. Marks & Co.; and it is claimed that such an entry in the docket is not legal notice to subsequent purchasers. In this case the name of the judgment debtor is correctly described, and it is his land that is to be affected by the lien. The record, therefore, is not uncertain as to the land affected. It shows that the land of Patton is subject to a lien by a judgment to S. Marks & Co., and I think the estate affected by the lien is as clearly pointed out as though the individual names of the plaintiffs had been spread on the record of the docket entry.
Judgment is therefore modified.