Jefferson County Savings Bank v. Miller

40 So. 513 | Ala. | 1906

SIMPSON, J.

This was a bill filed by the appellee (complainant) against the appellant (defendant) under the statute to quiet title to the land in controversy, •and the agreed statement of facts shows that complainant obtained judgment January 29, 1898, and the judgment was registered the same day, but failed to state , who was owner of the judgment, Avhich, under section 1920 of the Code of 1896, and the decisions of this court thereon, was invalid. His judgment was filed again for registration September 18, 1899, under Act Peb. 23, 1899 — Acts 1898-99, p. 34. The defendant then obtained judgment against the same party November 7, 1901, and filed his judgment the same day, and had execution issued and levied March 24, 1904. Complainant had an execution issued and levied April 21,1904, and the property was sold under both executions May 23, 1904; each party purchasing under his own' execution. The decree of the chancellor was in favor of the complainant.

The contention of appellant (defendant) is: (1.). that the first registration by complaint was invalid, which is correct; (2) that the second registration was invalid, in so far as it could authorize an execution to be issued, because it was more than a year after the judgment was rendered; (3) that the act of September 20, 1903 (Acts 1903, p. 273), could not authorize the issuance of the execution of April 21, 1904, because that would be giving to the act retrospective operation, and depri ving said defendant of a vested right, to wit, the right to have execution on its judgment and levy on the property. The only material change of the sections of the Code, made by the act of 1899 was in dispensing with the necessity of stating who is owner of the judgment, and making'the filing of the judgment notice, in place of the registration. It will be noticed that there is no limit of time for the filing or registration of the judgment, but whenever it is filed it becomes a lien on the property and operates as notice. It is provided only by section 1922 of the Code, and continued by act of 1899, that if the judgment is filed or registered within one year execution may be issued. So it is clear that at the time of the enactment of the statute of 1903 the complainant had a lien on the land which was prior and superior to that of the defendant. The only change made- by the act of 1903, which is material to this case, is to provide that “upon any judgment or decree which has been filed or registered as provided by section one hereof within ten years” execution may issue. So the effect of that act was not to change the rights or interests of the parties in or to the property, but merely to give the complainant a remedy by execution to enforce the lien, which appellant admits he had.

“Statutes designed to change the mode of judicial procedure, where such change relates to the method of enforcing a right and does not affect the right itself, are construed to apply to causes of action Avhich accrued before the enactment, as well as those to accrue thereafter.” — 26 Am. & Eng. Ency. Law, p. 695 ; Coosa, etc. v. Barclay, 30 Ala. 120 ; Willis v. State, 134 Ala. 429, 38 South. 226 ; 2 Mayfields’s Dig. 710. It has been held by this court that the original statute, authorizing the registration of judgments and declaring the registration to constitute a lien, was applicable to judgments which Avere in existence at the time of the enactment of the statute. — Enslen v. Wheeler, 98 Ala. 200, 13 South. 473. In fact, the construction AAdiich makes the act of 1903 applicable in this case is not giving it a retroactive effect. If the judgment had been registered before the enactment of the statute, that question might have arisen; but it was registered under the act, after its passage, and, as before stated, the statute merely authorized the party to pursue his remedy by execution for a right already existing.

Appellant places stress on the fact that the agreed statement of facts states that “appellee issued Ms execution, not on his registered judgment, but on his original judgment.” There is no force in this distinction. The execution is always issued under the original judgment ; the, effect of the statute being, not to give a new judgment, but to create a lien, and to preserve to the holder of the judgment the right, to have execution thereon, during the. life of the lien. The statute provides that the judgment, Avhen filed, shall be a lien,'and “upon any judgment * * * which has been filed and registered,” execution may issue. The same judgment is the basis for the execution, and the statute merely preserves the right to issue execution on it, Avithout the necessity of keeping executions out, as under the laAV before. It is still the original judgment which has been registered.

Appellant also stresses the fact that the actual sale under its judgment was about 10 minutes prior to that ■ made under the judgment of appellee. The law is very clear that a sale under execution is subject to all the rights of all who hold a prior lien, by judgment or otherwise, on the property. If there had been no execution on appellee’s judgment at all, the purchaser under appellant’s execution would have taken the property subject to the prior lien of appellee, and, as it was, he took it subject to the said lien enforceable by the subsequent sale under execution. — Caldwell v. Houser, 108 Ala. 125, 19 South. 796.

The judgment of the court is affirmed.

Weakley, C. J., and Tyson and Anderson, JJ., concur.