Hahn v. . Mosely

25 S.E. 713 | N.C. | 1896

In an action entitled "Simmons Manly v. Isaac Forbes et al.," a judgment had been rendered for these plaintiffs and for various other parties (among them the present plaintiff) for different amounts, but the index of the judgment showed a judgment in favor of Simmons Manly only.

It was admitted that the mortgage under which the defendant claimed the proceeds of sale had been duly executed by the decedent and that the administrator had paid certain taxes and insurance on the property; and further that all debts had been paid excepting the mortgage debt to defendant and the docketed judgment in favor of plaintiff.

His Honor gave judgment for the plaintiff for the amount of the proceeds of sale of the lands, and the defendant appealed, his exceptions being as follows:

"1. Because said judgment rendered in said action of Simmons Manly v.Isaac Forbes and wife and others, in favor of A. M. Hahn and George Allen Co., have never been indexed in the office of the Superior Court of said county on the Index Book of "Judgment Creditors," in the names of said A. M. Hahn, or George Allen Co., or properly indexed in said Index Book in the name of any party.

"2. Because said judgment rendered in favor of said A. M. (75) Hahn or George Allen Co., in said action of Simmons Manlyv. Isaac Forbes and wife and others, has never been docketed in the Index Book of Judgment Debtors in the office of the Clerk of the Superior Court of said Craven County in the names of said A. M. Hahn, or George Allen Co., or properly indexed on said Index Book in the name of any person.

"3. Because plaintiff is not entitled to the said judgment rendered by court, because as administrator of said Isaac Forbes, even if said judgment in favor of said A. M. Hahn, or George Allen Co., had been properly docketed and indexed, it would have been the duty of the defendant as such administrator to have sold said land and to have his commission as such administrator out of the proceeds of said sale and charges of administration, costs, and expenses of said sale.

"4. Because the defendant is entitled to be reimbursed the amounts of money paid by him for taxes on said land and for insurance premiums." The object of the statute, The Code, sec. 433, requiring an index and cross-index of judgments, is stated in Dewey v. Sugg,109 N.C. 328, 334, to be that "the inquirer is not required to look through the whole docket to learn if there be a judgment against a particular person. When there are several judgment debtors in a docketed judgment the index should and must specify the name of each one, because the index as to one would not point to all or any one of the others." The docketing creates a lien, and the index and cross-index are provided to facilitate the search for such encumbrances, and hence the name of each defendant must be indexed (Redmond (76)v. Staton, 116 N.C. 140), but as to the plaintiffs, it is sufficient that one name appear, since that indicates the case in which the encumbrance accrued by judgment against the specified defendant, and by turning to the judgment recorded or the judgment roll in such case the full nature and extent of the judgment will appear. It could serve no purpose to index the names of additional plaintiffs in the same judgment, when there is more than one. In the present instance the index and cross-index showed that a judgment had been docketed in favor of Simmons Manly against Forbes and the other defendants named. Had the defendant in this action turned to that judgment as recorded, he would have found its scope and purport and amounts recovered therein and to whom payable. He is fixed with notice of all that an examination of such judgment itself would have disclosed. Though recoveries were adjudged divers parties and for different amounts, they were all embraced in the same judgment, and by virtue of such judgment alone were liens on the property of the defendants therein named. The administrator is not entitled to be reimbursed the taxes and insurance, for these were volunteer payments on his part, but the decree should be reformed below to allow him commissions on so much of the proceeds of the sales of realty as is necessary to be paid on the plaintiff's judgment.

MODIFIED AND AFFIRMED.

Cited: Valentine v. Britton, 127 N.C. 59.

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