7 Neb. 165 | Neb. | 1878
On the twenty-first day of September, 1874, the state bank of Brownville, Nebraska, recovered a judgment against William Hall for the sum of $374.85, and costs, in the probate court of Richardson county. On the thirteenth day of February, 1875, the bank procured a transcript of the judgment, and filed the same in the office of the clerk of the district court of Richardson county, Hall at that time being the owner of certain real (st ite in said county. The cause of action upon which the judgment was recovered was a promissory note given by Hall to the bank, which was signed by Theodore Hill and Lewis Hill as sureties; no service was had upon either of the sureties, and no judgment taken against them.
The transcript was entered on the judgment record as follows:
“ State Bank of Brownville, Nebraska, v. William Hall, Theodore Hill, and Lewis Hill, partners as Theodore Hill and Company.
“ Transcript from records of probate court, filed February 13, 1875.
“ Against whom judgment was rendered — William Hall.
“Date of judgment, September 21, 1874.
“Amount of judgment, $374.85.
“Names of parties entitled to fees:
“ Attorney’s fee...........................$30 00
“ Costs in probate court.................... 5 50 ”
In the general index to the records of the district court, the entries were as follows:
*169 “ plaintiffs:
“ Bank, the state of, Brownville.
“defendants:
“ Theodore Hill and Co.
“ judgment docket.
“ Book, “Page, 64 Amount, $374 85 Month, September 21 Year, 1874 ”
“ defendants:
“ Hill, Theodore and Co.
“ plaintiffs:
“State Bank, .Brownville.
“judgment docket:
“ Book, 1 Page, 64 Amount, $375 85 Month, September 21 Year, 1874 ”
On the twenty-second day of September, 1875, Hall sold the real estate in controversy to the plaintiff for the sum of $2,500, and gave him a bond by which he obligated himself to execute a deed in fee simple for the premises on or before the first day of April, 1876, upon the payment of $2,400, $100 having been paid at the time of the execution of the bond. Two days thereafter the plaintiff, with the aid. of the county clerk, examined the county records, for the purpose of ascertaining the condition of the title to the property in question, and in consequence of the general index and the judgment record, or either of them, failing to show under the letter “ H ” that Hall was a judgment debtor, the plaintiff had no notice of the filing of the transcript.
The deed from Hall and wife to the plaintiff is dated March 4, 1876, and purports to have been filed for record February 13, 1876. It is not claimed by the defendants that the plaintiff had actual notice of the judgment until after he had received a deed for the land. It
In Mareh, 1876, the bank caused an execution to issue on the judgment, which was levied upon the lands in controversy. The plaintiff commenced an action to enjoin the sale under the execution, and on the hearing the court rendered a decree in his favor, to reverse which the defendant brings the cause into this court by appeal.
Section 821 of the code of civil procedure, which took effect September 1, 1873, provides that: “ The clerk of the district court shall keep at least eight books, to be called the appearance docket, the trial docket, the journal, the complete record, the execution docket, the fee book, the general index, and the judgment record.”
Section 322 provides that: “ On the general index he shall enter the names of the parties to any suit, both direct and inverse, with the page and book where all proceedings in such action may be found. The judgment record shall contain the judgment debtor and the judgment creditor, arranged alphabetically, the date of judgment, the amount of the same, and the amount of costs, with the page and book where the same may be found. Transcripts of judgments from justices of the peace, or courts of probate, filed in the district court shall be entered upon said judgment record; and whenever said judgment is paid off and discharged, the clerk shall enter such fact upon the judgment record in a column provided for that purpose.” Gen. Stat., 529.
Section 18, chapter lé, General Statutes, provides: ‘‘ That any person having a judgment rendered by a probate court may cause a transcript thereof to be filed in the office of the clerk of the district court in any county of this state, and when said transcript is so filed and entered upon the judgment record, such judgment shall be a lien on real estate in the county where the same is filed, and where the same is so filed and entered
The only question necessary to be considered in this case is, whether or not indexing is an essential part of the record, without which filing the transcript of the judgment by the clerk of the court would be ineffectual to impart notice of the lien to a subsequent purchaser.
It is said that the docket is an index to the judgment, invented by courts for their own ease, and the security of purchasers, to avoid the trouble and inconvenience of turning over the rolls at large. Tidd’s Practice, 939. Freeman on Judgments, Sec. 343.
A judgment is not á specific lien on the real estate of the judgment debtor. It is merely a general lien upon such real estate, and is subject to all prior liens, either legal or equitable. Rodgers v. Bonner, 45 N. Y., 379. Freeman on Judgments, sec. 378.
The lien of the judgment is not an interest in the real estate of the debtor. The judgment creditor has neither a jus in re nor a jus in rem, as regards the debt- or’s property. The lien merely confers the right to levy thereon, to the exclusion of other adverse interests, subsequent to the judgment. Grevemeyer v. Ins. Co. 62 Penn. St., 342. Conrad v. Ins. Co., 1 Peters, 386. Kemper v. Adams, 5 McLean, 507. Schaffer v. Cadwallader, 36 Penn. St., 126. Thelusson v. Smith, 2 Wheat., 396.
In addition to the general index provided for by statute, in which the names of the parties, both direct and inverse, shall be entered, it is also provided that the judgment record shall contain the judgment debtor and the judgment creditor, arranged alphabetically, etc. It is apparent, therefore, that the legislature intended that an alphabetical index should constitute a part of the record. Therefore judgments, which are valid as soon
A subsequent purchaser, however, is affected with such notice as the index entries afford; and if they are of such a character as would induce a cautious and prudent man to make an examination, he must make such investigation, or the failure to do so will be at his peril. But the index in this case imparted no notice to the plaintiff, it being — “Defendants,”—“Hill, Theodore & Co.”
It may be questioned whether the entry of the firm name of the defendants, without their Christian names, creates a lien, but in this case no judgment-was rendered against Theodore Hill & Co.
It is an indispensable element in a judgment record, in order to give subsequent purchasers notice of the filing of a transcript, that the names of the parties, plaintiff and defendant, be entered in the alphabetical index.
Webster defines “ Index ” to be — that which points out — that which indicates or manifests. One great object of an index is to render the contents of a book readily accessible. At this time, when inventions to save labor are in active demand, it will not be presumed that the legislature in providing for an index to the judgment record, intended it to be a useless appendage, of no validity — a mere trap for the unwary, or that a purchaser, notwithstanding the index, must spend days or weeks examining the records, in order to ascertain the condition of the title of the property he is about to pur
Judgment affirmed.
