78 Ala. 197 | Ala. | 1884
The question for decision involves the relative priority of the liens of two executions, and of the title acquired to certain lands subjected to sale at distinct' times under each of them. The plaintiffs'claims by a sale made under a senior execution issued on a decree in the Chancery Court, and the defendant by a prior sale made under a junior execution from the Probate Court. It is admitted that the one execution possesses no superior dignity over the other derived from the mere fact of its emanating from any particular court. The rule in this State, as declared by statute, is, that an execution, issuing from any court of record, is a lien, in the county > in which it is received by the officer, on the lands and personal property of the defendant, subject to levy and sale, from the time the writ is received by the sheriff; and this lien “continues as long as the writ is regularly issued and delivered to the sheriff without the lapse of an entire term.” — Code 1876, § 3210.
The present case, however, depends upon the proper construction of section 3211 of the Code, which purports to regulate the order of the liens of different executions, and reads as follows: “The liens of executions as between different judgment creditors, and between judgment creditors and purchasers from the defendant for valuable consideration, are declared to be, that if an entire term elapse between the return of an execution and the suing out of an alias, the lien created by the delivery of the first execution to the sheriff is lost; but, if an alias be sued out before the lapse of an entire term, and delivered to the sheriff before the sale of the properly tmder a junior execution, the lien created by the delivery of the first execution must be preferred.” — Code, § 3211.
It is a proper inquiry to ascertain what would be the law irrespective of this statute, in order that we may the better see what, if any, was the mischief and defect against which the former law failed to provide. This will bring us to the nature of the remedy appointed by the law-making power and the true reason of it.
The mischief or evil of this principle very clearly is the danger of purchasing titles clouded by superior liens which in their nature are dormant. It is observable 'that the policy of our entire legislation is to protect bona fide purchasers for value, and judgment creditors, without notice, against dormant liens and conveyances. The judgment creditor is required to keep his execution alive by the regular issue and delivery of an alias to the sheriff from term to term, or else his priority over others may be lost under many circumstances. The most salient feature of the various statutes relating to the liens of competing executions is, that the older lien is lost, in all cases, by permitting “the lapse of an entire term” of the court without the issue of the execution upon which such lien is founded and its delivery to the sheriff. — Code 1876, §§ 3210-3213. This suspension does not operate against the lien in favor of the judgment debtor, who is rather benefitted than prejudiced by it, but is justly confined to junior creditors, mortgagees, or vendees, who acquire intervening rights during the suspension. As said in Keil v. Larkin, 72 Ala. 493, 503, “the principle upon which such a lien is lost by mere suspension is that of delay by the plaintiff, for the purpose of favoring the defendant in execution, at the expense of other creditors, whose diligence may be thus paralyzed and rendered of no avail.”
The remedy appointed for the mischief is the exaction of diligence in the enforcement of execution liens, and the punishment of laches on the part of the judgment creditor by the loss of such lien. Section 3211 of the Code is intended tg
In the light of these principles, the section under consideration has a plain and obvious meaning. First, if an entire term of the court elapse between the time of the return of the senior execution and the suing out of an alias, its lien is lost. Secondly, “If an alias be sued out before the lapse of an entire term, and delivered to the sheriff, before the sale of property under a junior execution, the lien created by the delivery of thefirst [or senior] execution must be preferred.” — Code, § 3211. The necessary implication is that the preference thus accorded to the senior execution is given upon a condition, and this condition is that it must have been issued and delivered to the sheriff without the lapse of an entire term, and before a sale under.the junior execution. If not so delivered, its preference is lost, and with it falls the right of making a subsequent sale of the same property under the senior execution, so as to override the title acquired at the sale under the junior one. This, we say, is implied, and that which is implied in a statute is as much a part of it as what is expressed. Any other construction would entirely abrogate the legislative intention by imputing no meaning, force or effect whatever to the phrase, “before the sale of property under a junior execution,” or, what is worse, by making it read “before [or after] the sale of property under a junior execution a construction, which, in our judgment, would constitute a clear case of judicial legislation. “The evident purpose of the Code,” as observed by Brickell, C. J., in commenting upon the purpose and policy of these statutes in
In our opinion, the title of the defendant, which was acquired at a sale made under the junior execution from the Probate Court, was superior to that acquired by the plaintiff under the senior execution from the Chancery Court, because the first sale was made before the latter execution went into the hands of the sheriff. The court so charged the jury, and the charge is free from error.
Affirmed.