Josselyn v. Stone, 28 Miss. 753

Josselyn v. Stone

28 Miss. 753 | Miss. | 1855

Mr. Justice HaNdy

delivered the opinion of the court.

The question upon which this case depends is, whether the judgment in favor of the State commissioner, which was enjoined by the decree of the chancellor here complained of, was a lien upon the property of Cohea’s estate at the time the execution enjoined was issued. For if the lien of the judgment existed, it was competent to enforce it by execution against the property, notwithstanding the estate had been declared insolvent, and the claim had been presented to the commissioners of insolvency and rejected.

Two grounds are taken to show that the lien did not exist: — 1. That the judgment was not enrolled in conformity to the •enrolment act of 1844, whereby it ceased to be a lien. And, 2. That the judgment having been rendered before the passage of the statute of limitations of 1844, the lien expired upon the lapse of two years from the passage of that act, under the provision of the thirteenth section of that act, and the eleventh and thirteenth sections of the enrolment act.

I. Upon the first point, two objections are made to the en-rolment:— 1. That the judgment was against Perry Cohea *761and John A. Quitman, jointly, and that the enrolment was made as of a several judgment against each of them. 2. That the enrolment of the judgment of affirmance of the original judgment by this court, showed a judgment in behalf of the commissioners of the sinking fund, instead of a judgment in favor of the state commissioner, so that there was no such judgment as that enrolled.

We do not consider either of these objections well founded. The policy of the enrolment act was to protect the rights of persons who should become purchasers of property and especially at execution sales. To that end it was provided that judgments should not be liens upon the property of defendants therein, unless they should be so entered upon the “judgment roll” as to enable persons desiring to purchase property 'to ascertain readily by reference to that roll, whether there were any judgments against the person from whom the purchase was about to be made. The object in this was simply notice to the purchaser ; and in order to facilitate that, the roll was required to be kept alphabetically, showing, in the appropriate place, the name of each and every defendant. It was not at all necessary to this object, that the entry on the roll should show whether there were other defendants or not. It was sufficient that it showed that a judgment was in existence against the particular person in relation to whom the information was required. Nor was it necessary that great precision should be observed in showing the name or names of the plaintiffs. If it was sufficiently certain to refer the person inquiring to the records, and to show that it was the same judgment found in the records, the object of the statute is answered. In this case, the enrolment of the judgment of affirmance in this court, though made in the name of the commissioners of the sinking-fund, in whose name the original judgment was rendered, and not in the name of the State commissioner, was sufficient for all the substantial purposes of the act. For by reference to the records of the court to which the inquirer would be directly led by the entry on the judgment roll, the formal condition of the judgment could be ascertained, and the connection between the *762commissioners of the sinking fund and the State commissioner was not only shown by the record, but was a matter of which all parties were bound to take notice.

II. The second point is, whether the judgments had ceased to be liens.

It is conceded that the judgments are the property of the State, and to be treated in all respects as though they were in the name of the State; and the question is, whether the statutes referred to, the thirteenth section of the statute of limitations of 1844, and the eleventh and thirteenth sections of the enrolment act, apply to judgments in favor of the State.

It cannot be denied that these provisions are statutes of limitations. .The first is such upon its face, and the two other sections are such in necessary legal effect as well as in their professed object. And upon the well-settled doctrine in relation to such statutes, they cannot affect the rights of the State.

By the abstract act of 16th February, 1841, it was provided amongst other things, that no j udgment should operate as a lien upon the property of the defendant, situate in any other county than that in which the judgment should be rendered, unless an abstract, showing the names of the parties to it, its amount and the date of its rendition, should be filed and recorded in the office of the clerk of the circuit court of the county where it was proposed to give it the effect of a lien on the defendants’ property situate therein, and that the lien of such judgment upon such property should take effect from the time of filing such . abstract.

This act was intended as a restriction upon the general operation of the act of 1824, under which a general lien upon all the property of the defendant, situate in any county in the State, was created by a judgment rendered in any one county. It does not expressly repeal the act of 1824; and it was doubtless merely intended as a protection to purchasers of property of defendants, situate beyond the limits of the county where the judgment was rendered, who might be injured for want of notice Of the existence of the judgment. It does not, in terms ■or by necessary implication, include the rights of the State, 'which, upon well-settled doctrine, are paramount to those of the *763individual citizen, and are not to be considered as embraced in the statute, unless such an intention is clearly manifest. This principle will be further considered hereafter; and we think that by force of it, the provisions of the abstract act do not apply to judgments rendered in favor of the State, and consequently that the lien of the judgment in this case was in force in Hinds county, from the date of its rendition.

At the time of the rendition of the judgment in behalf of the commissioners of the sinking fund, the judgment was a lien upon the defendants’ property, from its date, and so long as it continued an effective judgment. This rule was deemed by the legislature of 1844, to be unwise policy in relation to judgments generally, as affecting the rights of purchasers, and a new and very stringent rule was adopted, shortening the period of existence of such liens. The State, then, having a lien when these statutes were passed, the question is, whether it was limited or affected by them.

It is a universally recognized rule that no laches is to be imputed to the State and against her; that no time runs'so as to bar her rights. This is a great principle of public policy, intended to secure the rights and property of the public against loss or injury by the negligence of public officers and agents. And upon the same reason, it is the settled doctrine that the general words of a statute do not include the State, or affect her rights, unless she be specially named, or it be clear and indisputable from the act that it was intended to include the State. People v. Gilbert, 18 J. R. 228 ; United States v. Hoar, 2 Mason, R. 314; Inhabitants of Stoughton v. Baker, 4 Mass. R. 528; State of Maryland v. Bank of Maryland, 6 Gill & Johns. 205-226.

There appears to be nothing in these statutes that would take them out of the rule applicable to ordinary statutes of limitations, in reference to the rights of the State, or that would include the State in their operation as general' statutes. The same principle, founded upon her sovereign right, which would exempt her from the operation of such statutes in bringing her suit, and obtaining judgment, must also exempt her from their operation in impairing her right when her judgment is obtained. *764For otherwise the form would, be protected, but the substance denied. The rights of the State are simply unaffected by such statutes, and of this all the world are bound to take notice. As to purchasers from or under the defendant, they stand where they would have stood before the passage of these acts, and have the same means of protecting themselves against such liens, by diligence and investigation, that they had under the old law. And if’ they sustained a loss, it is even better that individuals should suffer than that the commonwealth should sustain an injury. And as to the defendant, there is no greater reason why he should use these statutes to the detriment of the State, than the other statutes in relation to the limitation of actions before judgment; and his creditors have no higher right in this respect than belongs to him.

The counsel for the appellees puts the case of a mortgage executed to the State in virtue of a general act of the legislature, limiting the liens of mortgages to two years; and asks whether a mortgage subsequently executed to the State, would not be subject to such an act. The mortgage being executed subsequently to the passage of the law, it would be a question whether the act was not intended to be applied to such cases, and whether the mortgage would not be considered as a contract entered into by the parties with reference to the statute under which it was made. But that case is materially different from the present in this, that the lien of the judgment was in force at the time of the passage of these acts, and the question is, whether they are to be held to apply to such a judgment, whose lien existed before their passage. The case put would be somewhat analogous if the State had already had a mortgage, and afterwards a statute had been passed limiting the liens of mortgages to a shorter period than that existing when the mortgage was made. Upon well-settled principle, such an act would not apply to such a mortgage, because it would be in derogation of public right, and the presumption is that the legislature never intended to give such an effect to the statute. To remove this presumption, a clear intent to include the State must be apparent from the statute, or at least must arise by necessary implication.

*765It follows from these views, that the lien was not affected by the statutes of 1844, and also that the rejection of the claim of the State, founded upon the judgment and the affirmance in this court, did not conclude the State from enforcing her judgment lien by execution.

The decree of the chancellor is therefore reversed, the injunction dissolved, and the bill dismissed.

A petition for a reargument was filed in this case by the counsel for the appellees, but it was overruled by the court.

Mr. Justipe Fishee,

delivered the following dissenting opinion.

The judgment in this case was rendered on the 7th day of June, 1843, and no abstract óf it having been filed in the office of the clerk of the circuit court of Hinds county, as required by the provisions of the act of the 16th of February, 1841, the question for decision is, whether the lien of the judgment attached to the property of the defendant situate in the last-named county.

The majority of the court, on the application for a reargument of the cause, hold that the act of 1824, so far as the interest of the State may be concerned, is not repealed or modified by the act of 1841, and that the lien of the judgment attaches to all the property of the defendant, in any county of the State. The first section of the act of 1841 is in these words, namely: “ All judgments and decrees of any superior, circuit, district, or superior court of law or equity, holden within this State, shall operate as liens from the date of their rendition upon the property of the debtor, being within the county in which the sitting of such court may be holden, and not elsewhere, unless upon compliance with the conditions hereinafter enacted.” Hutch. Code, 890.

The words “all judgments and decrees” embrace those to which the State is a party. Besides, such is manifestly the policy of the law, which was designed to protect innocent purchasers of property situate in one county, against judgments rendered in another, unless evidence of the existence of the *766judgment appeared of record in the clerk’s office of the county-in which the property was situated.

If such be not the construction of the law, it must fail in accomplishing the end which the legislature had in view, and purchasers must either purchase subject to the lien of the State, of the existence of which they had no knowledge, or they must cause to be examined the sixty clerks’ offices in the State, in some one of which a judgment may have been recovered by the State against the person proposing to sell, before the purchase can be safely consummated. ■ Construing the law, therefore, either with reference to its language, or the evil intended to be remedied, I am clearly of opinion that the State is embraced by the provisions of the act of 1841, and therefore disagree with the views of the majority of the court on this point in the case.