34 Ala. 117 | Ala. | 1859
The returns upon the executions issued upon the defendants’ judgment, the letter" of the owners of the judgment, of 29th April, 1842, the payments of $565 on 7th Jan., ’42, and $630 on 3d June, ’42, and the agreement of counsel, upon which the case was tried, all considered together, lead us to the conclusion, that there was a stay of execution, resulting from the active interference of the parties having a right to control the judgment, from the 27th June, 1841, to 19th June, 1843. On the 30th February, 1843, during the suspension of proceedings under the judgment, the complainants’ deed of trust was made.
The mere failure on the part of a judgment creditor to prosecute his remedies for the collection of his judgment will not affect his lien. — Turner v. Lawrence, 11 Ala. 427; DeVendell v. Hamilton, 27 Ala. 171; Dargan v. Waring, 11 Ala. 988; Sellers & Cook v. Hays, 17 Ala. 749, But, in the case of Patton v. Hayter, Johnson & Co., 15 Ala. 18, it was decided, that the lien of a judgment creditor,'
It is supposed that the same principle cannot apply to this case. But why not ? The ground upon which the cases proceed is, that the interference to prevent the collect,ion of the judgment by the plaintiff is constructively fraudulent, and destroys the lien, quoad other creditors, whose executions are levied during the operation of such interference. If the interference is constructively fraudulent, why shall it open a door for judgment creditors alone to come in ? Why should that differ from all other frauds, in vitiating only as to judgment creditors ? Why may not a creditor, not having a judgment, come in and acquire alien by contract, as a creditor having a judgment may acquire a lien by virtue of bis judgment, or by levy of process ? We can see no grounds for a discrimination against any creditor who comes in during the constructively fraudulent suspension of proceedings under the judgment, and acquires a lien by mortgage or deed of trust; and if he is a creditor, it cannot injuriously affect him that the mortgage is given to secure antecedent debts. It is his character of creditor which clothes him with the right to claim advantage of the fraud. '
We cannot reconcile the judgment rendered in Doe, ex dem. Leverich v. Bates, 6 Ala. 480, with our conclusion; nor can we reconcile it with the later case of Patton v. Hayter, Johnson k Co., supra, -which had relation'to alien on land. The decision seems to have been made without noticing or adverting to the principle
The decree of the court below is reversed, and the cause remanded, to be proceeded with in pursuance of the foregoing opinion.