Moody v. Doe ex dem. Harper

| Miss. | Apr 15, 1853

Mr. Justice Fisher

delivered the opinion of the court.

This was an action of ejectment, brought in the circuit court of Hinds county by the defendant in error, to recover certain lots in the city of Jackson, in the possession of Edwin Moody, the plaintiff in error.

The plaintiff, on the trial in the court below, introduced as his evidence, certain patents issued by the proper officer of the State to John Shields, on the 15th of June, 1838, for the lots in controversy, and then a deed executed by the sheriff of Hinds county to the plaintiff’s lessor, on the 20th of May, 1844, accompanied by a transcript of a judgment and execution thereon, rendered in the circuit court of said county, upon a forfeited forthcoming bond against the said Shields, on the 16th of October, 1837 ; by virtue of which it appears that the lots were sold by said sheriff at the time stated, on the 20th of May, 1844, and purchased by the plaintiff’s lessor.

Moody, the defendant below, offered to read in evidence a deed executed to him by the sheriff of said county, conveying the same lots, on the 13th day of October, 1839, by virtue of a sale under judgments rendered in said court, on the 17th, 18th, and 19th of April, 1838. This deed was on motion of opposing counsel rejected by the court, and its rejection presents the only question important for us to consider. And this question relates not to the sufficiency, but to the relevancy of the evidence before the jury. The deed was introduced for the purpose of rebutting the evidence offered by the plaintiff; and if it performed this office, it was certainly relevant testimony, and should have been admitted by the court.

The evidence of the plaintiff shows, that the lessor had acquired the title of John Shields to the lots in controversy, by virtue of a purchase under a judgment in force against him, on the 16th day of October, 1837. The deed of the defendant was offered for the purpose of assailing the title thus acquired. In almost any light in which the testimony can be viewed, it appears to have been relevant to the issue. Its tendency was to prove a title in the defendant, and for this purpose it was certainly competent, because, under any view, if the sheriff’s sale was valid, it vested in Moody the title of John Shields, subject to be defeated only by a judgment having a prior lien, and this the defendant had a right to controvert, inasmuch as it was the only thing which could make his title inferior to that arrayed against him.

Moody has the advantage of a title acquired by virtue of a prior sale; but the disadvantage of this sale having befen made under junior judgments. The object in offering his evidence was to show, that the advantage of being a senior purchaser was sufficient to protect his possession against the title exhibited by the plaintiff; and if his proof tended to establish this proposition, it was competent, because it might have been sufficient, considered in connection with the plaintiff’s evidence, to defeat a recovery by his adversary.

The plaintiff’s lessor, being a junior purchaser, must show a title based upon a lien, relating back to a period anterior to the recovery of the judgments under which Moody claims. It is true that the plaintiff has traced his title to a sale under the senior judgment; but does his proof, at the same time, establish a lien, commencing either at the date of the judgment, or at any other period before the recovery of the other judgments ? In our opinion, it does not. The plaintiff’s evidence shows that the title to the lots in question did not vest in Shields till the 15th of June, 1838, after all the judgments under which-both parties claim had been rendered. The act of 1824, the law regulating judgment liens at the dates of these several-transactions, is in these words: “ that in all cases the property of the defendants shall be bound and liable to any judgment that may be entered up from the time of entering such judgment.” H. & H. 621. In enacting this law, the legislature-had only in view the property which the debtor held at the time the judgment was rendered.

The great object of the law was to protect the creditor against conveyances and transfers by the debtor, of his property after judgment, and to force the purchaser to take it in such case charged with the lien. The debtor could not convey what he did not own; and where he had no estate which he could convey at the time the judgment was entered against him, he of course had nothing which it could bind.

It is certainly true, that a prior lien is entitled to a prior satisfaction. But the lien itself must exist; it is but a charge upon property, for a particular purpose; and where there is no property, of course there can be no lien. Mere priority of judgment, under the act of 1824, gives no right to a prior satisfaction, unless it creates a lien; and then the right to such satisfaction is confined to the thing upon which the lien operates.

It will thus be seen, that the judgment, under which the plaintiff claims, constituted no lien on the lots in controversy till Shields became' the owner thereof. No lien appears to have been created by this judgment prior to the recovery of the judgments under which Moody claims. And this being the case, the purchaser under the first judgment acquired no title which will relate back to the date of such judgment, or overreach the title by virtue of the sale under the junior judgments.

Under this view of the question, the court erred in rejecting the evidence.

The only adjudicated cases, bearing directly on the point here involved, we have met with, are to' be found in Ohio and Pennsylvania. Under a statute in the State of Ohio, making a judgment a lien upon the lands of the debtor from the first day of the term of the court at which it was rendered, the supreme court of that State, in an able and well considered opinion, decided that the statute did not embrace land acquired by the debtor after judgment; and that if he sold the land before a levy of a fi. fa. issued on the judgment, the purchaser acquired a good title. Styles, ex dem. &c. v. Murphy, 4 Ohio R. 92. It will be seen by this decision, that the court confined the lien to the lands of the debtor at the date of the judgment, and wholly discarded the idea that it attached at all to after acquired lands. The same doctrine is recognized by the supreme court of Pennsylvania. 6 Binn. 135" court="Pa." date_filed="1813-10-04" href="https://app.midpage.ai/document/colhoun-ex-rel-zank-v-snider-6313755?utm_source=webapp" opinion_id="6313755">6 Binn. 135. The authorities on the other side merely hold that the lien attaches to after-acquired lands by the debtor at the date of the acquisition, and that a purchaser in such case would take subject to the lien. But we have found no case sustaining the doctrine contended for'by counsel, that the lien of the' judgment, upon lands thus acquired, relates back to the date of the judgment. Such a doctrine could only be sustained upon the principle, that the senior judgment was entitled to a prior satisfaction. We have seen that this was not the case under the act of 1824, unless such judgment created a lien upon the debtor’s property, and then only to the extent that the property thus bound would satisfy the judgment.

It is possible, as suggested by counsel, that the law may now be different, as the sheriff must examine the roll and apply the money to the oldest judgment. But this question is not now before us; and we, therefore, do not decide it.

Judgment reversed, and cause remanded.

The appellee in this case petitioned the court for a reargument, which was refused by the 'court.