152 N.E. 849 | Ind. Ct. App. | 1926
In April, 1911, appellee Lena Witholm, recovered a judgment in the Lake Superior Court against appellant and his wife, Anna Petrovitch, also an appellee herein. In September, 1921, Lena Witholm filed her complaint to revive said judgment as to both of the judgment debtors. This complaint was in two paragraphs. In 1923, a third paragraph of complaint was filed counting on an equitable lien on certain real estate owned by appellant, alleging that, subsequent to the recovery of said judgment, appellant had gone through bankruptcy, and had later filed an action to enjoin the levy of an execution upon the real estate described, thereby hindering the plaintiff therein, and hereinafter referred to as appellee, in the collection of her judgment, and asking that the court adjudge that she have an equitable lien upon such real estate and that such equitable lien be foreclosed and the property sold to satisfy such lien. The issues being closed, there was a trial which resulted in a finding and decree in favor of appellee on the third paragraph of her complaint; that, as against appellant, she had an equitable lien on the real estate for the amount of the judgment and that the lien should be foreclosed and the real estate sold to satisfy such lien. The court entered a decree reviving the judgment as against appellee Anna Petrovitch. From the decree declaring appellee has an equitable lien and foreclosing the same, appellant appeals, and contends the court erred in overruling his motion for a new trial. The only specifications in his motion which we need consider are: (1) That the decision is not supported by sufficient evidence; and (2) that it is contrary to law.
The facts as disclosed by the evidence are, in substance, as follows: On April 17, 1911, appellee Lena Witholm obtained a judgment for $369.10 in the Lake *146 Superior Court against appellant and his wife Anna Petrovitch on an account. Execution was issued on this judgment April 17, 1911, and returned no property found, and not satisfied. The date of the return is not shown. On March 3, 1913, appellant and Anna Petrovitch filed separate complaints alleging that said judgment had been taken against them by default through mistake, inadvertence and excusable neglect. There was a finding and judgment against the plaintiffs on each of these complaints. An execution also came into the hands of the sheriff October 6, 1914, and was returned January 4, 1915, not satisfied. It is not shown when this execution was issued. Another execution was issued on April 11, 1919.
On May 27, 1919, appellant filed his complaint in the Lake Superior Court against appellee Lena Witholm and the then sheriff of Lake county, in which it was alleged that appellant was the owner of the real estate in controversy; that appellee, on April 17, 1911, had recovered a judgment against him by default; that execution had been issued at her instance and placed in the hands of the sheriff who was threatening to levy upon and sell said lot. It also alleged that in January, 1915, appellant filed his petition in bankruptcy, wherein he listed said real estate and claimed the same as exempt; that the said judgment of appellee had been scheduled in the bankruptcy proceedings; that on a hearing in the bankruptcy proceedings, the said real estate had been set off to appellant as exempt and appellee's judgment allowed as a claim, and asking that appellee and the sheriff be enjoined from levying upon said real estate. Summons was issued and served on the sheriff and returned not found as to appellee. There is no showing of any appearance or that steps were ever taken in that action, and the cause was dismissed March 20, 1922. Albert Morris, one of the deputy sheriffs, *147 testified that he had a conversation with another deputy sheriff concerning an execution issued by appellee against appellant, and that he advised such deputy to go ahead and sell because the notice did not amount to anything, and because the sheriff had not been enjoined from going on with the sale.
One of the attorneys for appellee testified that the real estate owned by appellant was never worth less than $2,000; that after the court failed to set aside the original judgment, he had an execution issued and took the matter up with an attorney representing appellant who agreed to give a mortgage to cover the judgment. This appears to have been prior to the proceedings in bankruptcy. There is also evidence that appellee's attorney, in 1919, demanded of the sheriff that he levy on appellant's real estate and sell it and that the sheriff refused to do so because of the action then pending asking for an injunction.
Section 659 Burns 1926, § 608 R.S. 1881, is as follows: "All final judgments in the Supreme and circuit courts for the recovery of money or costs shall be a lien upon the real estate and chattels real liable to execution in the county where judgment is rendered for the space of ten years after the rendition thereof, and no longer, exclusive of the time during which the party may be restrained from proceeding therein by an appeal or injunction, or by the death of the defendant, or by agreement of the parties entered of record."
This lien is purely statutory. It is created by statute. Its very existence and the rights of the judgment creditor are and must be measured by the statute creating the lien. It 1, 2. begins, it continues, and terminates with the will of the legislature. Houston v. Houston (1879),
In Wells v. Bower (1890),
Judgment creditors are in no sense purchasers. Boyd v.Anderson (1885),
In Applegate v. Edwards (1873),
And as was said by this court in Matthews v. Wilson (1903),
And in Taylor v. McGrew (1902),
As was said in Hemen v. Rinehart (1906),
The statute is that the judgment shall be a lien for ten years, and no longer, exclusive of the time during which the party was hindered by some one of the four things named in the 3. statute. As applied to this case, in order to extend the lien of the judgment, it was necessary that appellee be hindered or delayed in enforcing her judgment by reason of aninjunction. When a party has power to act, he is not restrained. Jones v. Detchon (1883),
At common law, except for debts due the king, the lands of the debtor were not liable to the satisfaction of a judgment against him, and consequently no lien thereon was acquired by a 4, 5. judgment. But, in this state, judgments rendered in the circuit and superior courts are by statute made a lien upon the real estate liable to execution in the county where the judgment is rendered. Section 743 Burns 1926 provides that the party in whose favor the judgment is rendered, at any time within ten years after the rendition of the judgment, may have an execution issued to enforce it. Section 744 Burns 1926 provides that after the lapse of ten years, an execution can be issued on leave of court. Since the lien of a judgment is a statutory lien, and since the law provides a legal method of enforcing such lien, the legal method so provided must control. While the lien of a judgment may be enforced in a court of equity, equity follows the law. As was said in Coles' Admr. v. Ballard (1883),
And we think it is safe to say that when a legal right or demand is barred at law, an equitable demand of like character based upon a former legal right will be barred in equity. This rule was applied in Hutcheson v. Grubbs (1885),
A judgment dead in law and barred by statute is barred in equity. McCarty v. Ball (1887),
"The duration of judgment liens," said the court in Smith v.Schwartz (1899),
Upon what principal of equity jurisprudence can it be claimed that appellee had an equitable lien? We know of no principal or authority to sustain the right of appellee to an equitable lien or to the right to "foreclose" such lien. We venture the assertion that a judgment lien — a lien created by statute, can never be converted into an equitable lien.
The Supreme Court of Michigan, in passing upon the power of a court of equity to enforce the collection of a judgment lien, said: "The palpable purpose of the bill is to have the chancery court declare and enforce collection of a statutory lien. Although there is some confusion of the law upon the subject in some jurisdictions, it has been determined in this State that while the equity court, having acquired jurisdiction for other purposes, may, as an incident to general relief granted, order property sold to satisfy a lien, it has no jurisdiction to enforce a lien, either common law or statutory, upon a bill filed solely for that purpose * * *." Marshall v. Wabash R. Co.
(1918),
Conceding that a court of equity is a court of conscience, we still must act in accordance with the settled rules of equity jurisprudence and not in violation of such rules. The result of the decree of the trial court is to hold that under the evidence in this case, the lien of a judgment, on a contract rendered in 1911, was by reason of the facts proved, converted into an equitable lien. Appellant, if a resident householder, would have been entitled to an exemption of $600 on a sale under an execution issued on the original judgment. Can he have *154 such an exemption under a decree foreclosing an equitable lien on his real estate and ordering that real estate sold to satisfy the lien? If a sale is held under the decree in this case, will it be a sale under the decree of court, or will it be on an execution issued on the original judgment?
In Gardenshire v. King (1896),
In Ruth v. Wells (1900),
If upon the dismissal of appellant's complaint for an injunction, appellee had proceeded to sell the property on execution, under the theory that the provision of the statute limiting the time during which the judgment was a lien, had been interrupted by the action to enjoin, and appellant was by complaint or answer seeking to prevent a sale, appellee without doubt would be in position to set up the action to enjoin by a plea of equitable estoppel. Whether such a plea under the facts in the instant case would be sufficient to sustain such a plea is not now before us, and need not be considered.
In Hensen v. Peter (1917),
Appellee, by her third paragraph of complaint, has mistaken her remedy. Her remedy, if any, was by sale on execution issued on the judgment. If her right to sale on execution has been lost, it is a misfortune for which we are not responsible. Appellee may still have execution issued, if such right has not been lost by lapse of time.
Judgment reversed, with directions to sustain the motion for a new trial, and for further proceedings consistent with this opinion.
Nichols, J., not participating.