19 Ark. 297 | Ark. | 1858
delivered the opinion of the Court.
James Lawson, jun’r, late sheriff of Pulaski county, sold the real estate of Thomas Thorn, on the 21st of April, 1845, under various executions in his hands, issued on judgments against Thorn, rendered at different times between 1840 and 1844. The proceeds of the sale amounted to $8,190, and of which sum $1184, under a decree, in favor of Robert Brownlee, against all Thorn’s creditors on foreclosure of a mortgage, dated 16th February, 1842, on a portion of the lands sold, were paid over to Brownlee, and taken out of the fund, and no appeal having been taken from that decree, that payment must be regarded as rightfully made; and hence, the amount left in the sheriff’s hands for distribution, was diminished to the sum of $7,006, and which is the amount really in controversy in the pi-oceed-ing now before us.
There were 33 judgments against Thorn, rendered at various pei'iods: on some of which the lien had expired; others had been satisfied, and on others there was no process to the sale term at all, and on one no process in time to advertise and sell. The Trustees of the Real Estate Bank also held a mortgage on a portion of the lands sold, executed 1st July 1843, and upon most of these judgments, and on this mortgage a distribution was claimed. The sheriff, to protect himself, applied to the Pulaski Circuit Court for direction, and advice, and the Court distributed the fund, substantially, as in the present case, but ■which not being satisfactory to some of the parties, an appeal was taken to this court; where it was held that the Circuit Court had no jurisdiction to make distribution, Oldham J. dissenting; the cause was dismissed, and the sheriff and claimants left where they were before. See Trapnall vs. Jordan, 2 Eng. 431. Lawson then filed a regular bill of interpleader, asking for protection, calling on the creditors of Thorn to interplead with each other, and have their respective priorities and rights determined, and that he might be protected from a multitude of threatened suits. Several of the parties answered and inter-pleaded with each other, and on final hearing the Court decreed that the said sum of $7,006 should be distributed, paid and appropriated by the. sheriff on the following judgments, in the order in which they are here named, first paying the costs of this proceeding, to wit:
1. Jared C. Martin as adm’r of James Danley, rendered Sept. 8, 1841: sci fa. April 25, 1844, and revived 30th May, 1844; amount due thereon, 21st April, 1845, $861 57.
2. Bonaparte J. McHenry, rendered 3d November, 1841; sci. fa. September 13th, 1844, and revived 14th May, 1846, amount due 21st April 1845, $1410 35.
3. Jared C. Martin as ad. of James Danley, rendered 13th May, 1842; sci. fa. 25th April, 1844, and revived 30th May,
1844, amount due thereon 21st April, 1845, $1,242 12.
4. Ashley & Watkins use of Trapnall & Cocke, rendered 1st July, 1843, amount due 21st April, 1845, $211 79.
5. Trapnall & Cocke, rendered 26th November, 1842, amount due thereon 21st April, 1845, $788 21.
6. Drennen and Rector as administrators of Wharton Rector, rendered 24th November, 1842, amount due thereon 21st April, 1845, $2,148 35.
7. Trapnall & Cocke, rendered June 22d, 1843, amount due thereon 21st April, 1845, $1,230 15 — as far as the fund would go on this judgment.
These were all judgments rendered against Thorn in the Pulaski Circuit Court, and on each of which there was effective process to the sale term, and which came to hand in time to advertise and sell.
In point of fact, the property of Thorn was advertised and sold under all the executions in the sheriff’s hands, and not under any particular one, and the fund produced from the sale was decreed to be distributed in the order, and upon the judgments as above stated, the Court, as it is presumed, acting on the general principle that the priority of subsisting liens by judgment should prevail, and liens by execution be disregarded as creating no lien in opposition or paramount to the judgment.
From the decree rendered as above, Lawson, himself, the Trustees of the Real Estate Bank, and various other parties, appealed to this Court.
The facts stated in the answers were admitted to be correct, and there were also sundry elaborate abstracts filed in the cause, which were likewise admitted and received as correct, showing the dates, amounts and condition of all the judgments at the time, the nature fof the executions issued thereon, and when issued, and on what property levied, and also showing on what particular property each execution was levied; delivery bonds taken, and judgments on delivery bonds, and other information as to the judgments and executions.
The case is extremely complicated, and to go through with these abstracts, would swell this opinion into a volume, to no useful purpose; nor is there any occasion to make a more particular statement of the facts of the case than as we have above made, to the proper understanding of it, or its decision.
Having said this much by way of explanation, we will at once proceed to the solution and determination of the several questions of law arising upon the record before us.
The lien of a judgment commences on the day it is rendered, and contiuues for three years only, unless it is kept alive by scire facias. And so true is it that the execution or levy does not prolong or affect the judgment lien, that if the execution is sued out and comes to hand before the lien expires, but the •sale does not take place until afterwards, the title under the sale relates to the day when the execution came to hand, and not to the date of the judgment. See Little vs. Harvey, 9 Wend. 157; Graff vs. Kip, 1 Edw. 620; Tufts vs. Tufts, 18 Wend. 622; Dickinson vs. Gilliland, 1 Cow. 481; Mower vs. Kip, 6 Paige 90; Roe vs. Swart, 5 Cow. 294; Mower vs. Kip, 2 Edw. 167; Penn. Iron Co., ex.parte, 7 Cow. 540. And in such case a junior judgment with the lien would have priority over one without but of older date.
The Court, in making this distinction, rightly adopted the rule of priority of lien by judgment; and in so doing, adhered to the law, as it has always existed' in this State, whatever opinions may have been entertained-to the contrary.
There was no error committed by the Court in this case, in holding judgments thus circumstanced unaffected by the delivery bonds, and as still maintaining their liens. There would be a difference now, in consequence of the change in the law; because now a forfeited delivery bond has the force and effect of a judgment, and necessarily extinguishes the previous judgment; but such was not the case as to the delivery bonds in question.
The Court committed no error in regarding judgment liens as still subsisting, although process and writs of vend. ex. had been ordered to be returned by the plaintiffs, or their attorneys, without further action. And such judgments were properly taken and considered in the distribution of the fund in question.
If the fund were sufficiently large to require an adjudgment of the liens of all the thirty three judgments remaining unsatisfied under the decree of the Court below, it is conceived it could not be attended with difficulty. Judgments which were a lien, and on which was effective process in the hands of the officer, would have to be paid, or satisfied in full, first, according to priority of lien. Judgments on which the lien had ceased^ would rank, in relation to each other, according to priority of date; and would be postponed to judgments constituting a lien, and become, as to them, as if subsequently rendered. See Penn. Iron Co., ex parte, 7 Cow. 540; Allen on Sheriffs, 195; Pettit vs. Shepherd, 5 Paige 493; Settle vs. Harvey, 9 Wend. 157; Graft vs. Kip. 1 Edw. Ch. Rep. 619; Tufts vs. Tufts, 18 Wend. 621; Scott vs. Howard, 3 Barb. 319.
The only error the Court did commit was in giving judgments, Nos: 4 and 5, priority over No. 6, as above shown; because the last judgment, No. 6, was rendered before them: nor had it lost its lien, or right to prior satisfaction in full. But this error is productive of no injury to the representatives of the Drennen and Rector judgment, No. 6, because the fund is sufficient to discharge it in full, and leave a balance to be applied to the judgment of Trapnall & Cocke, No. 7; and such being the case, it would serve no useful purpose to change the order of distribution in that respect.
Upon the whole record, we are of opinion that the decree of the Pulaski Circuit Court in Chancery ought to be, and hereby is, in all things, affirmed, with costs.
