| Ark. | Jan 15, 1861
delivered the opinion of the court.
The original bill was exhibited by Absalom Fowler, on the 10th February, 1857, against James B. Keatts and others, to quiet the alleged title of the complainant to certain lands, lying in Pulaski county, and known as the N. W. £ section 25, and N. E. 4 section 26, T. 1, R. 25 West. Keatts answered the bill, and making his answer a cross-bill, asserted title in himself, and prayed that Fowler’s deed might be canceled. At the hearing the Chancellor dismissed the cross-bill, and rendered a decree on the original bill quieting Fowler’s title.
The lands in controversy were patented by the United States on the 1st December, 1830, to Dennis Trammell, who, by deed dated 6th July, 1836, conveyed them to Elias Rector. On bill filed and proceedings had against Rector and others, on the chancery side of the Circuit Court, holden for the county of Pulaski, in the then Territory of Arkansas, a decree was rendered against Rector, on the 23d of November, 1837, being a day of the term of the court which commenced on Monday, the 9th of October, 1837 ; under an execution issued on this decree, the lands were sold by the sheriff on the 5th September, 1842, and Fowler became the purchaser. Such is the title of Fowler.
Keatts also derives his title from Rector, as follows: On the 17th October, 1837, and during the term of the court at which the decree was rendered against Rector, he, by deed of that date, conveyed the lands to JustusP. Stevens ; on the 29th May, 1843, they were sold by the sheriff under execution issued on a judgment recovered against Stevens, and Goodrich & Boardman-became the purchasers. Goodrich afterwards died, leaving Boardman his executor, and on the 13th January, 1857, Keatts acquired the interest of both, by deeds from Boardman.
From what has been said, it will be seen that though the conveyance to Stevens was made before the rendition of the decree against Rector, it was not made until after the first day of the term at which the decree was rendered ; and it is conceded by the counsel for Keatts, that if the decree was a lien on the lands, and as such related to, and was in force from the first day of the term, the title of Fowler, who claims under it, is paramount to that of Reatts, who claims through the conveyance from Rector to Stevens.
Under the territorial statute, in force at the time the decree was entered, a final decree in chancery was “a lien on lands as judgments at law in the superior court;” and the territorial act of the 3d July, 1807, then also in force; after enacting in general terms that judgments at law in any court of record, in the territory, should be a lien on lands, contained a pr-oviso, in the following words: “ That no judgment now on record in any court within this territory shall continue a lien on the lands and tenements of any persons against whom the same has been entered, during a longer term than five years from and after the passing of this act, unless the person who has obtained such judgment, or his legal representatives, or other person interested, shall, within the said term of five years, sue out of the court where the same has been entered a writ of scire facias to revive the same. And no judgment hereafter entered, in any court of record within this territory, shall continue a lien on the lands and tenements of any person against whom the same has been entered, during a longer term than five years from the first return day of the term of which said judgment may be entered unless the same shall have been revived by scire, facias within the said terra of five years as aforesaid.” See Steele McC’s. Digest, page 11Q, sections 8, 9, page 339, section 70.
The language of this enactment is not as explicit as it might have been ; though we think the Legislature intended to provide a judgment lien, in all cases, for the full period of five years ; indeed, the language, “ no judgment shall continue alien on the lands, &c., during a longer term than five years from the first return day of the term of which such judgment may be entered,” would seem necessarily to imply thatthe judgment should be a lien for the length of time specified, commencing on the first day of the term. It follows, therefore, that Fowler had the superior title, and that Keatt’s cross-bill was properly dismissed.
Keatts, however, in order to defeat Fowler on the original bill, pleaded the limitation act, which provides that all actions against the purchaser, his heirs or assigns, for the recovery of lands sold at judicial sales, shall be brought within five years after the date of such sale, and not thereafter. Eng. Digest, chap. 99, sec. Q. The lands being wild and uncultivated, were never in the actual possession of either of the parties litigant. From the date of the judicial sale to Goodrich & Boardman, under whom Keatts claims, to the time of filing the bill, a per" iod of more than five years elapsed; which, though Keatts was never in possession, is, according to the decision of this court in Mitchell & Wife vs. Etter et al., at October term, 1860 a bar to the relief sought by the original bill. -
So much of the decree as dismisses the cross- bill must be affirmed, and so much of it as quiets the title of Fowler must be reversed, and the cause remanded with instructions to dismiss the original bill — each party paying one-half of the costs in this court, and in the court below.