34 S.C. 388 | S.C. | 1891
The opinion of the court was delivered by
This case having been several times 'before this court under previous appeals, it will not be necessary to give any detailed statement of the facts presented in its various phases, as these may be ascertained by reference to the former adjudications in 27. S. C., 472, and 31 S. C., 581. We will therefore confine ourselves to a general statement of the nature of the case, together with such facts as are pertinent to the questions raised by the present appeal.
The action was brought to recover possession of a tract of land now included within the boundaries of Aiken County, but which formerly constituted a part of Lexington County, from which it was cut off when Aiken County was established by the act of 1871, 14 Stat., 695. The plaintiff claims under a deed made by the sheriff of Aiken, dated 7 January, 1878, by virtue of a sale made under certain executions obtained against Robert Garvin, the former owner of the land, while the defendant claims under a deed dated 15th April, 1874, from said Robert Garvin to himself. It seems that there were two judgments obtained against Robert Garvin, the first of which, designated as the Fox judgment, was entered in the clerk’s office of Lexington County, on the 6th of April, 1868, and execution duly issued thereon, at which time the land in question was embraced within the boundaries of Lexington County, where Robert Garvin then resided. That execution was returned to the clerk’s office on the 4th of April, 1872, “unsatisfied and for renewal,” by the sheriff of Lexington County. On the fifth of August, 1875, Aiken County in the meantime having been established, and the land in question having thereby been embraced within the boundaries of that county, a transcript of said judgment was filed in the office of the clerk of the Court of Common Pleas for Aiken County, and on the same day an execution was issued- thereon by the said clerk, which for convenience will be designated as the Quash execution, that being the name of the clerk who issued it.
The second judgment, which will be designated herein as the Garvin judgment, was obtained in Aiken County, in September, 1877, and execution to enforce the same was duly lodged with the sheriff of that county on the 10th of December, 1877. Under this last mentioned execution the land was levied on and sold by the
Under this state of facts, as presented in the development of the plaintiff’s case (he having offered in evidence the deed from Robert Garvin to the defendant herein, for the purpose of showing that both parties claimed from a common source of title), a motion for a non-suit was made and granted by his honor’, Judge Hudson, who held that the plaintiff having shown that the defendant held the land under a deed executed prior to the recovery of the judgment under which the sale was made to the plaintiff by the sheriff, the plaintiff had proved himself out of court, by showing that defendant held under a superior title. For he held that plaintiff could not avail himself of the lien of the Fox judgment, which was anterior in date to the defendant’s deed, because there was not at the time of the sheriff’s sale any execution on that judgment in the sheriff's office, having active energy, and hence there was no other authority for the sheriff to make the sale except the execution issued to enforce the Garvin judgment. The Circuit Judge further held that the question now presented had not been adjudicated by any former decision in this case, as was claimed by plaintiff.
From this judgment of non-suit plaintiff appeals upon the several gi’ounds set out in the record, which substantially make three questions: 1st. Whether- the point now presented has been already adjudicated by any former decision in this case. 2nd. Whether there was at the time of the sheriff’s sale any valid execution in his office, having active energy, from which his authority to make the sale could be derived. 3rd. If not, whether the lien of the Fox judgment was not sufficient of itself to constitute authority for the sheriff to make the sale under the execution junior to defendant’s deed.
where the judgment debtor then resided, it unquestionably then became a lien upon the land, which continued until the debt was paid either in fact or by operation of law. The fact that the land was afterwards cut off from Lexington County and embraced within the boundaries of the new County of Aiken, established by the act of 1871, hereinbefore cited, could not affect this lien; for there is nothing in that act which indicates any intention to give to it any retroactive operation, and hence, under the well settled rule, no such operation can be given to it. Indeed, the terms of the act, so far from showing any intention to give to it a retroactive operation as to judgments already recovered, indicates precisely the contrary; for while provision is made for the transfer of all papers and records in pending suits, &c., nothing of the kind is said in reference to cases already determined. But in addition to this, counsel for appellant has furnished this court with two cases from other States which distinctly decide the point in accordance with the conclusion which we have adopted. Davidson v. Root, 11 Ohio, 98; People ex rel. Bowman v. Hovious, 17 Cal., 471.
It will be observed that these provisions, with respect to the enforcement of judgments by execution, are made retrospective in express terms, and apply as well to executions issued to enforce judgments previously as well as subsequently rendered; while the provision in section 313, with respect to the lien of judgments, are in like express terms prospective only — “final judgments hereafter rendered,” &c. It is therefore contended by counsel for appellant that, as the provisions above quoted are applicable to the issuing of execution to enforce the Fox judgment,, although it was recovered prior to the Code, they warranted the issuing of the Quash execution on the 5th of August, 1875, as that was within five years after the return of the first execution unsatisfied on the 4th of April, 1872, though not within five years from the original entry of the judgment’ in Lexington County. This view proceeds upon the assumption that the provision above quoted from section 315 authorizes the issue of a second execution, as of course, at any time within five years from the return, of the first execution. But, in the first place, we do
This view cannot be sustained for two reasons. In the first place, the Garvin execution having been issued to enforce a judgment obtained after the land had been conveyed away by the judgment debtor, that judgment never was a lien upon the land, and, of course, the execution issued upon it furnished no authority whatever for the sale — no more than if the execution had for some reason been absolutely void, or had been fully satisfied. In the second place, the view contended for is in direct conflict with a recent decision of this court in the case of Henderson v. Trimmier, 32 S. C., 269. In that case there were three liens on the land — first, the Cooley judgment; second, the mortgage in favor ofTrimmier; and third, the Matthis judgment. The land was sold under the junior judgment, and it was held that the lien of the mortgage was divested thereby, although the execution on the Cooley judgment had lost its active energy. In that case, though the Matthis execution was held to furnish' sufficient authority to make the sale, inasmuch as the judgment upon which it wras issued was a lien, though subject to the prior lien of the mortgage; yet the sale was supported, and it was held to vest a good title in the purchaser, free from the lien of the mortgage, by virtue of the senior lien of the Cooley judgment. As it is wrell expressed by his honor, Judge Fraser, in his Circuit decree in that case: “The sale being for the benefit of the older judgment lien, the title under such sale is necessarily sustained by such older lien.”
So that even if we are in error in holding that the Quash execution was a valid execution, having active energy, which, being in the hands of the sheriff at the time, would have furnished him with authority to make the sale, yet under the case just cited the title of the plaintiff, who purchased at the sheriff’s sale, may be supported by the lien of the Fox judgment, even though no valid execution on that judgment may have been in the sheriff’s hands at the time of the sale. There can be no doubt that where a