79 Neb. 68 | Neb. | 1907
The action involves the priority of liens on real estate. The plaintiff claims under four mortgages, one recorded January 25,1896, a second March 9,1899, a third October 23, 1901, and a fourth on September 12, 1902. One defendant, the State Bank of Du Bois, claims under a judgment obtained in the county court, a transcript of which was filed in the district court on October 23, 1894. The defendants Ratekin and Musselman claim under a judgment rendered in justice court, a transcript of -which was filed in the district court December 5, 1899; the de
The claim of appellants is that, in order to preserve the priority of a judgment lien over another tona fide judgment creditor or purchaser, the issuance of an execution must be accompanied by an actual levy. Two sections of the code are involved in the inquiry. In section 482 it is provided: “If execution shall not be sued out within five years from the date of any judgment that now is or may hereafter be rendered in any court of record in this state, or if five vears shall have intervened between the date of the last execution issued on. such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor.” That portion of section 509 involved reads as follows: “No judgment heretofore rendered, or which hereafter may be rendered, on which execution shall not have been
The force of what appears to be the plain meaning of section 509 is somewhat weakened by what is said in Barker v. Potter, 55 Neb. 25. From the statement of facts in that case it appears that Kate Bird Curtis became the assignee of certain judgments rendered in the district court for Douglas county in 1888; that she had not suffered the■ judgments to become dormant (presumably because executions were issued and returned, although it is not so stated); that no actual levy was made until February 1, 1894, when she caused executions to issue and a levy to be made upon certain real estate, which was sold under the levy and bid in by her. On May 4, 1889, George A. Hoagland recovered judgment against the same debtor in the district court, and on May 3, 1894, execution issued on this judgment and was levied on the property claimed "by Kate Bird Curtis by virtue of her purchase at sheriff’s sale. It will be observed that the levy of the execution on the judgments held by Kate Bird Curtis was not made within five years from the rendition of the judgments. The learned commissioner who wrote the opinion in that case, in sustaining the title of Kate Bird Curtis and disposing of the claim of Hoagland made under the provisions of section 509 of the code, said: “Originally this statute contained the word ‘prejudice’ where now occurs the
Section 477 of the code provides: “The lands and tenements of the debtor within the county Avhere the judgment is entered, shall be bound for the satisfaction thereof, from the first day of the term at which judgment is rendered.” But the lien is not made perpetual, and is subject to the limitations contained in the code. The legislature, having provided by law when and how a judgment may become a lien upon real estate, might well pro-A'ide how the priority of such liens could be continued, and offer some inducement to diligent creditors. This appears to have been accomplished by the provisions of section 509 of the code; and, giving effect to that section, we hold that the priority of a judgment lien may be continued as against other bona fide judgment creditors and purchasers only by the issuance of an execution and an actual levy within the time limited by statute. The judgment creditors in this case, however, do not all stand upon the same footing in that respect. The priority of the lien held by the State Bank of Du Bois over two of the mortgages in suit was determined by the decree of May 11, 1904, and has become res judicata. The judgment liens
It is recommended that the decree of the district court be reversed and the cause remanded, with instructions to enter a decree in conformity with the conclusion here reached.
By the Court: For the reasons stated in the foregoing opinion, the decree of the district court is reversed and the cause remanded with instructions to enter a decree in conformity with the conclusion here reached.
Reversed.