158 A. 357 | Md. | 1932
On April 6th, 1923, William F. Eckenrode obtained a judgment by confession in the Circuit Court for Carroll County against William E. Heagy and Emma K. Heagy, his wife, and Edward Heagy and Edith Heagy, his wife, for $1,825.20, with interest, counsel fee, and costs. The principal was reduced on January 13th, 1928, to $1,200, and on August 25th, 1928, it was entered to the use of Frank A. Eckenrode and Alverda B. Eckenrode, his wife, the appellees.
On December 1st, 1927, Susannah Messinger obtained a judgment by confession in the same court against J. Edward Heagy and Mary Edith Heagy for $4,000, with interest, costs, and counsel fees. The consideration for Mrs. Messinger's judgment was the conveyance by her to J. Edward Heagy and Mary Edith Heagy of several parcels of land. The deed was dated November 30th, 1927, and it was recorded and the judgment entered simultaneously. The judgment represents the whole purchase money, no cash having been paid by the grantees. *65
Executions were issued on both judgments, and the property sold by the sheriff for $2,600, and, a dispute having arisen between the appellant and appellees as to the amounts they were entitled to receive out of the proceeds, the sheriff made alternative returns to the court under the provisions of section 16, article 87 of the Code, and the parties submitted their contentions to the court, which decided in favor of the appellees, that is, that their judgment be paid in full before any money was applicable to the Messinger judgment, and from an order to that effect this appeal is taken.
The contention of the appellees is that their judgment, having been entered first and being effective from its date, is entitled to priority, while the appellant contends that the only real property the Heagys had was that which she conveyed to them, and that her judgment gave her an equitable lien for the purchase money, and that she is therefore entitled to the entire proceeds of sale, and, if that does not appeal to the court, then, the property coming under the judgments at the same time, the proceeds should be distributed pro rata to the judgments of the appellant and the appellees.
The answer to the appellants' first contention is that a judgment, being a general and not a specific lien, is enforceable, not only against the property sold by the creditor to the debtor, but against any other property within the jurisdiction of the court wherein the judgment is entered. The fact that the appellant chose to take a judgment in payment of the purchase money does not give her security an effect different from that of a judgment to any other person. The statutes and decisions in this state show the vendor the ways and means whereby unpaid purchase money may be secured, and to act otherwise is to take the risk which negligence of one's rights involves. By Code, art. 66, sec. 4, it is provided that a purchase-money mortgage shall be superior to any previous judgment or decree for the payment of money. The same protection may also be afforded a third party who advances the purchase money in whole or in part. A vendor's lien *66
for unpaid purchase money may also be reserved under the provision of article 66, section 31. In Ahern v. White,
This then brings us to the other contention, and that is, whether the Eckenrode judgment, being first in point of time, has priority over the Messinger judgment, or, the land becoming subject to both judgments at the same time, should the proceeds of sale be apportioned between them.
"Judgments create liens only because the land is made liable by statute to be seized and sold on execution." Dyson v. Simmons,
The appellant has cited many decisions to the effect that, where there are several judgments against a debtor who acquired land after the entry of the judgments, they should, on execution, be distributed pari passu, and 2 Freeman on Judgments (5th Ed.), sec. 981, p. 2068, says: "This construction seems to be of undisputed correctness wherever the question has arisen except in Oregon, where the statute in terms says that a judgment shall apply to after acquired as well as presently owned property." The construction which the Oregon court puts on its statute is in line with the decisions of this court which have been cited, and that is, that judgments have relation to the date of their entry and are payable on execution accordingly. Creighton v. Leeds,
This court has so often declared that judgments relate from the date of their entry that their respective priorities must be reckoned without reference to the date of acquisition of the land or leasehold to which they may attach. Code, art. 26, secs. 19-21. The judgment of the appellant, therefore, being second in order of its entry, is subordinated to it *69 in payment of execution, unless the difference in the Christian names of the judgment debtors has any effect.
It is conceded that the Edward Heagy and Edith Heagy in the Eckenrode judgment are the same defendants as J. Edward Heagy and Mary Edith Heagy in the Messinger judgment, and it is not disputed that both judgments may be enforced against the same two defendants, notwithstanding the difference in names, the identity being the material fact. Hartman v. Thompson,
Order affirmed, with costs.