Dickerson v. Carroll, 76 Ala. 377

76 Ala. 377 | Ala. | 1884

STONE, O. J.

— In Preston v. McMillan, 58 Ala. 84, we construed section 2200 of the Code of 1876, and held that, as against trusts, whether implied by law, or declared by the parties, creditors were placed on the same footing as purchasers for a valuable consideration without notice. We held further, that, to come within this principle, the creditor must have reduced his claim to a judgment, and established a hén by placing execution in the hands of the sheriff, — all before notice of the equity. We conceded this was an innovation on the law, as existing before that statute was enacted. We were aware that, in the absence of that statutory provision, mere creditors, as such, were not purchasers, within the principle which protects the latter against trusts implied by law. We were, also, aware that, as a rule, purchasers at execution sale take, as against implied trusts, only such title as belonged to the debtor, with all incumbrances thereon. — 2 Leading Cases in Equity, 1st Bart,89,et seg.\ Story’s Equity,§ 15035b; Larppington v. Oesohli, 49 Mo. 244. See, also, authorities on appellant’s brief; Sieman v. Schenck, 29 N. Y. 598.

There are cases in which a purchaser at execution sale can tack on to his title the lien of the execution creditor, against an intervening incumbrancer. This is the means by which such execution, or lien creditor, can make his prior right available. He succeeds by his purchase, not to any newly acquired equity against the outside incumbrances. líe only acquires the lien and right of the execution creditor, which dominates the incumbrancer’s claim; and tacking it to the title acquired by his purchase, perfects it. — Daniel v. Sorrells, 9 Ala. 436; Jordan v. Mead, 12 Ala. 247; Governor v. Davis, 20 Ala. 366; De Vendell v. Hamilton, 27 Ala. 156. These authorities do not affect the present case.

In Walker v. Elledge, 65 Ala. 51, we re-affirmed the doctrine of Preston v. McMillan.

There is no dispute, in this case, that Mrs. Dickerson has a vendor’s lien, unless Higgins acqnired a paramount lien and equity, after the right of Mrs. Dickerson attached. The land in controversy was sold and conveyed by her to Carroll, but the deed was not recorded, and no part of the purchase-money has been paid. Higgins recovered judgments against Carroll, before a justice of the peace, and executions were issued thereon, which, for want of personal property, were levied on the lands. The papers in the causes were all returned up to the Circuit Court, and motions were there made for an order to sell the lands, but had not been acted on. All the proceedings, up to this point, were in strict conformity with the statute. — Code of 1876, § 3638, et seq. Up to this time, Higgins had no notice of Mrs. Dickerson’s claim and lien; but he received such notice before the orders of sale were granted. She immediately had this bill filed. Subsequently, Higgins obtained the orders of sale; the lands were sold by the sheriff, and Higgins became the purchaser, receiving the sheriff’s deed. Is this an answer to Mrs. Dickerson’s claim and suit? We think not, for the following reasons: Section 2200 of the Code was an innovation on the law, as heretofore understood. In the absence of that section, Mrs. Dickerson’s lien would prevail over that of a creditor, no matter in what form he presented his claim. That statute is creative, and must not be interpreted beyond its terms. In Preston v. McMillan, we interpreted the word creditor in this statute to mean a judgment creditor having a lien. Neither a justice’s judgment, nor an execution thereon, is a lien on lands, nor can lands be sold under such execution, without more. It can not be even levied on lands, without a previous indorsement that there is insufficient personal property known to the constable. We can not think that a constable’s levy on lands, before order of sale granted, constitutes the plaintiff in such recovery a judgment creditor having a lien, within the meaning of section 2200 of the Code, as interpreted by us. — Preston v. McMillan, supra. It is doubtless true, that where the proceedings are regular, and the court grants an order of sale, this, as between the parties, has relation back to the time of the levy, and establishes the lien as of that time. Such lien would dominate all mere liens and rights acquired subsequent to the' levy. But the doctrine of relation is never applied, so as to cut off an equity, otherwise valid.— Chapman v. Fields, 70 Ala. 403; Freeman on Judgments, §§ 66, 369.

• The decree of the chancellor is reversed, and a decree here rendered, declaring that the complainant is entitled to relief. It is referred to the register to take an account, showing the amount of indebtedness from Carroll to the complainant, with interest to the next term of the Chancery Court, to which term he will make his report. All other questions are reserved for the chancellor’s action.

Reversed, rendered in part, and remanded.