Howes v. CameronHowes v. Cameron
- Reporters:
- Before:
- Blodgettorally
This is a petition to set aside a levy made under an execution issued in this ease by the marshal of this district. The plaintiff, Howes, recovered against the defendant on the ninth of July, 1877, a judgment in this court for $1,978.50. On December 26, 1877, a few months after the recovery of this judgment, as will bе noticed, the defendant Cameron acquired title to lot 10, in block 22, in Duncan’s addition to the city of Chicago, by deed of cоnveyance. On the second day of December, 1878, the defendant and her husband sold and conveyed by deed, in good faith, to Jesse L. Nason, the N. 1- of this lot, and on the twenty-second of April, 1879, the latter conveyed to Carry 0. Nason; October 1, 1879, Garry 0. Nason conveyed to o‘ne Erickson; October 1, 1879, the latter conveyed to Melcher, and on the twenty-fourth of April, 1883, Melclier convеyed to the petitioner; so that the petitioner is now seized of the N. of lot 10, block.22, by a series of mesne conveyanсes from Cameron. On the ninth of January, 1878, an execution was made out by the clerk of this court and delivered to a clerk of thе plaintiff’s attorney, which was subsequently returned to the clerk’s office and a memorandum made on the execution docket that said writ had not been delivered to the marshal. On December 13, 1878, another execution was made out by the clerk, but not delivеred to the marshal, and on the seventh of February, 1884, an execution was issued on this judgment and levied on the petitioner’s lot. The petitioner asks that the levy under this execution be set aside, on the ground that she is a bona fide purchaser of the property aftеr the lien of the judgment had expired, and that her property ought not to be sold, or her title clouded by this levy, or sale under it.
It aрpears from an affidavit of Frank I. Bennett, who was the clerk of Mr. John I. Bennett, the plaintiff’s attorney in the recovery of this judgment, аnd the issue of this execution, that the execution of January 9, 1878, was taken by him from the clerk’s office and handed to one of thе United States deputy-marshals, who asked what he *325wished done with it; to which Bennett replied he would have to seo the attorney and get instructions, and requested the deputy to hold said writ until such instructions should be given; whereupon, as the witness states, said deputy, in accordance with his request, placed said writ away in his office to await further instructions. ¡To instructions wore given, and no memorandum or entry was made by the marshal on the writ or elsewhere showing the writ had been in his hands, and after the expiration of 90 days from the datе, it was taken from the deputy and returned lo the clerk’s office, who filed it as of the day it was returned, and the clerk at the same time made an entry on the execution docket in this ease that the execution in question had not been delivered to thе marshal.
The second execution was merely made out by the clerk and handed to the attorney, who kept it in his office until the expiration oí 90 days from the dato, when he returned it to the clerk, who marked it filed, and also made a memorandum on the execution docket that it had not been delivered to the marshal.
Section 1 of chapter 77 of the llevised Statutes of Illinois provides that-a judgment shall be a lion on the reíd estate of the person against whom it is issued for the term of seven years from the time it is rendered, and no longer, but when an execution is not issued on such, judgment within one year from the time the same becomеs a lien the judgment shall thereafter cease to be a lien. The only question is, was an execution issued on this judgment within a year frоm the timo the judgment was rendered?
It is very clear to me that an execution is not issued, within the meaning of this statute, unless it is delivered to аn officer authorized to execute it, and for the purpose of having it executed. The handing of this execution to a dеputy-marshal with the express direction not to execute it until further instruction, and giving no instruction to execute it during the life-timo of the writ, is nоt such a delivery of tire writ to the officer as preserves the lien. For all the purposes of preserving the lion, the writ might as wеll have never been made out by the clerk. It lay inert and dead by direction of the plaintiff’s attorney, and placing it in the hands оf a person who happened to be a deputy-marshal with directions not to do anything with it, does not make it any better than if it hаd been left in the desk of the clerk or attorney, because the vitality of the writ is suspended by express direction of the plaintiff’s attorney. That the deputy-marshal understood the writ was not to he executed, is, it seems to mo, conclusively shown by the fact thаt no indorsement was made on the writ, as required bylaw, of the time he received it; and it is hardly possible the clerk would have madе an entry to the effect the writ was not delivered to the marshal if he had not been so informed by the attorney’s clerk whon the writ was taken back to the clerk’s office.
The supreme court in Gilmore v. Davis, 84 Ill. 487, says: “A delivery of such a writ to a sheriff, instructing him at the same time to *326do nothing under it, is really no dеlivery, and confers no rights on the creditor.” It is true, the case I have cited was not expressly a case like this, where a continuation of a lien by the issue of an execution was involved. That was a case between contending executions, and it was held that the delivery of a writ to a sheriff, with instructions not to execute it, was equivalent to no delivery at all. See, also, Berry v. Smith, 3 Wash. C. C. 60.
The case, therefore, seems to me to stand precisely the same as if no execution had been issued on the judgment until аfter the expiration of a year, and the lien of the judgment had ceased at the time the defendant conveyed the property in question to Jesse L. Nason, from whom the petitioner acquires title by mesne conveyances. At the time the petitioner acquired title, the record in this case showed that the execution had never been delivered to the marshal, аnd justified the purchaser from the defendant in assuming that the judgment had ceased to be a lien upon this property at the end оf the year from the time the judgment was rendered. I am therefore of the opinion that the plaintiff has no right to levy an exeсution on petitioner’s property. An order will be entered setting aside the levy under the execution upon the N. of lot 10, in block 22. The execution will not be quashed because, possibly, it may reach other property.