The opinion of the court was delivered by
Mr. Justice McIver.
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 *394sheriff to the plaintiff, as hereinbefore stated, on the 7th of January, 1878. It seems, however, that the land in question had been previously levied on under the Quash execution, though the date of such levy is not given, but the sale under that levy was enjoined until the determination of the issues in the case in which the Garvin judgment was obtained.
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.
*3951 *394As to the first question, we agree with the Circuit Judge that the point now raised has never been adjudicated by any former decision in this case. In the case as reported in 27 S. C., *395472, which-is relied upon by plaintiff as sustaining his view of this question, the only point really decided was that the Fox judgment was not merged in the Garvin judgment, and therefore plaintiff could claim the benefit of the lien of the former; but whether he could enforce'such claim without showing a live execution issued on such judgment was neither considered nor determined. His right to the benefit of the lien of the Fox judgment was'recognized; but how he should make such right available, was not a question in the case. We have looked carefully through all the former decisions in this case, and wre have been unable to find that the question now presented has ever before been decided, or that its decision was necessarily involved in any adjudication heretofore made.
2 As to the second question, we are unable to agree with the Circuit Judge. The Fox judgment was recovered in Lexington County prior to the enactment of the Code, and as the land then was embraced within the limits of that county,
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" court="Cal." date_filed="1861-07-01" href="https://app.midpage.ai/document/people-ex-rel-bowman-v-hovious-5434637?utm_source=webapp" opinion_id="5434637">17 Cal., 471.
*3963 *395The lien of the Fox judgment thus continuing on the land after it was cut off from the County of Lexington, where the *396judgment had been originally entered, and embraced within the limits of the new County of Aiken, the question is whether there was, at the time of the sheriff’s sale, any execution in the sheriff’s office of Aiken having active energy, under which such lien could be enforced. By sec. 306 of the original Code' of Procedure it was provided that, “Writs of execution for the enforcement of judgments, as now used, are modified in conformity to this title, and the party in whose favor judgment has been heretofore, or shall hereafter be, given * * * may, at any time within five years after the entry, of judgment, proceed to enforce the same, as. prescribed by this title.” And the next section (307) provides, “After the lapse of five years from the entry of judgment, an execution can only be issued by leave of the court. * * * But the leave shall not be necessary when execution has been issued on the judgment within the five years, and returned unsatisfied in whole or in part.” And section 315, in the same title, provides, “If the first execution is returned unsatisfied, in whole or in part, another execution, as of course, may be issued at any time within the period limited by this act for issuing executions.”’
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 *397not think that it is a proper construction of section 315; for by the preceding part of. that section, not quoted above, it is provided that executions shall be returnable within sixty days, and it seems to us that the proper construction of the words quoted is, that though an execution must be returned within sixty days, yet it may be renewed at any time within five years from the entry of the judgment, as of course — not at any time within five years from the return of the execution. But, in the second place, section 315 of the Code was stricken out by the act of 25 of November, 1873 (15 Stat., 499), and the provisions inserted in lieu thereof contained no such provision as that quoted above from section 315 of the Code. So that even if the construction of section 315 contended for by the appellant could be adopted, yet as the plaintiff did not undertake to avail himself of that construction until after that section had been repealed, he cannot claim any benefit thereunder.
4 The act of 1873, just referred to, does, however, contain another provision which, as it seems to us, will warrant the issuing of the Quash execution on the 5th of August, 1875, which was within three years before the sheriff’s sale. Section 14 of that act, after providing for the filing of a transcript of a judgment obtained in one county in another county, contains this language : “And from the date of the filing of such transcript, it shall have the same force and effect as if the judgment had been originally entered in the county in which said transcript is filed.” Now, if the Fox judgment had been originally entered in the County of Aiken on the 5th of August, 1875, one of the effects which it would have had would have been to authorize the issuing of an execution thereon at any time within five years from that date; for it will be observed that section 306 of the original Code is not repealed by the act of 1873, or by any other act, so far as we arc informed. The fact that the Fox judgment may have had the additional force and effect of fixing a lien on the land from the date of its entry in Lexington County, as we have seen, instead of from the date of the filing of the transcript thereof in Aiken County, cannot deprive it of the further effect under this provision of the act of 1873, of authorizing the issue of an execution thereon at any time within *398five years after the filing of the transcript in Aiken County. And as the.lien on real estate is derived from the judgment, and not from the execution, which only serves as authority to the sheriff to enforce it, we do not see why the Quash execution, which was issued within five years after the filing of the transcript did not furnish authority to the sheriff to enforce the previously existing lien of the judgment arising from, and at the time of, , the original entry of the judgment in Lexington County.
5 It seems to us, therefore, that though the execution issued on the Garvin judgment, under which the sheriff made the sale, was not sufficient authority to enable him to do so, inasmuch as that judgment was not entered until after the land was conveyed by the judgment debtor to the defendant herein, yet there being at the time in the office of the sheriff another execution — the Quash execution — which would furnish such authority, his act in making the sale may, under the well settled doctrine (Agnew v. Adams, 17 S. C., 364), be referred to that authority; and as the Quash execution was issued to enforce the lien of a judgment which antedated the conveyance under which the defendant claims, the purchaser at such sale took a title superior to that of the defendant. We have not deemed it necessary to consider the effect of the act of 1884 (18 Stat., 749) and the act of 1885 (19 Stat., 229), amending the Code, as it had been previously altered by the act of 1873, above referred to, because both of those amendatory acts expressly provide that nothing therein contained shall be construed to affect the lien of judgments or executions thereunder entered prior to the 1st of March, 1870, and hence their provisions cannot affect this ante-Code judgment or any execution issued thereunder.
6 It is contended, however, by counsel for defendant, that while it is true that where a sheriff sells under an execution which has been satisfied or has lost its active energy, and he has at the time another valid execution in his office having active energy, the sale may be supported by referring it to the latter execution; yet where the execution under which the sheriff sells is unsatisfied, and having active energy, furnishes authority to make the sale, that the sale must be referred to it, and the sale cannot be supported by referring it to another valid enforcible *399execution then in the sheriff’s office; and hence it is claimed that as the sale in this ease was made under the Garvin execution, which was a valid execution, having active energy, it cannot be supported by referring to any other execution which may have been in the sheriff’s office at the time.
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 *400sheriff-makes a sale of real estate under a.n execution, he is bound to apply the proceeds of such sale to any judgment senior to that under which the sale is made, for such is the express provision of the statute. “The sheriff shall pay over the proceeds of sale of any real estate sold by him to any judgment having prior lien thereon.” Gen. Stat., § 685. This provision is even more stringent than that found in section 60 of the sheriff’s act of 1839, from which the present section seems to have been taken ; for there the requirement was to pay over the proceeds of sale to any judgment having prior lien, provided notice of such judgment be given to the sheriff of such judgment before the proceeds have been otherwise applied. But there is- no such proviso in the section as incorporated in the General Statutes, and hence it w'ouid seem to be necessary for the sheriff to examine the clerk’s office to see if there is any judgment having prior lien before he can safely apply the proceeds of the sale of real estate. If, therefore, the holder of a senior judgment is entitled to receive the proceeds of the sale of his judgment debtor’s real estate, when made under a junior judgment, it would seem to be nothing but right and proper that the purchaser, whose money has been applied to the senior lien, should be protected-under such lien. This doctrine seems to have been settled by the case of Vance v. Red (2 Speer, 90), which has been recognized and followed in a number of subsequent cases. This disposes of the third question made by the plaintiff’s grounds of appeal.
7 The defendant has, however, according to the proper practice, given notice'that he will ask this court to sustain the judgment below, upon a ground other than those upon which it was based by the Circuit Judge. This ground, as stated in the notice, is because “it appears by the evidence introduced by the plaintiff that the defendant has been holding this land in dispute adversely to the plaintiff and all the world more than ten years last past before the commencement of this action.” To dispose of this ground, it is sufficient to say that whether a party has been in adverse possession of a tract of land for the prescribed time, presents a question of fact, which the Circuit Judge would have had no authority to determine, as that was a matter for the jury.
*401The judgment of this'court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that ourt for a new trial.