103 Ill. 150 | Ill. | 1882
delivered the opinion of the Court:
The validity of plaintiff’s title depends upon the force and effect of the decree rendered in the circuit court of Peoria county on March 22, 1859, as being a lien upon this land in Tazewell county. If it was not a lien upon such land situated in another county than that in which the decree was rendered, then the deed from John Wightman to William Wightman, of March 21, 1866, conveyed to the latter the full title to the land, unincumbered by any lien of the decree, and there was no interest left in the land for the master’s deed to the plaintiff, of February 26,1881, to operate upon and convey. Was, then, the decree a lien upon this land in another county ?
The law in force at the time the decree was rendered was: “A decree for money shall be a lien on the lands and tenements of the party against whom it is entered, to the same extent and under the same limitation as a judgment at law\ ” Eev. Stat. 1845, p. 95, sec. 14. And by sec. 45, p. 98: “All decrees given in causes in equity in this State shall be a lien on all real estate respecting which such decrees shall be made, and whenever, by any decree, any party in a suit in equity shall be required to perform any act other than the payment of money, or to refrain from performing any act, the court may in such decree order that the same shall be a lien upon the real or personal estate, or both, of such party, until such decree shall be fully complied with, and such lien shall have the same force and effect, and be subject to the same limitations and restrictions, as judgments at law.” As to the lien of judgments at law the provision was: “All and singular the lands, tenements and real estate of any person against whom any judgment has been or hereafter shall be obtained, either at law or in equity, shall be liable to be sold upon execution to be issued upon such judgment, etc., and the said judgment shall be a lien on- such lands, tenements and real estate from the last day of the term of court in which the same may be rendered, for the period of seven years: Provided, that execution be issued at any time within one year on such judgment, ” etc. Same, p. 300, sec. 1. And as to a writ of attachment, or a writ of execution, issued from the circuit court of one county to any sheriff or other officer of another county, it was provided, that it should be the duty of the officer making such levy to make a certificate thereof, and file the same in the recorder’s office of the county where such real estate was situated, and that until the filing of such certificate such levy should not take effect as to creditors, or bona fide purchasers without notice. Same, p. 305, sec. 25. And by section 27 it is provided that the certificate shall be recorded in a book to be kept for that purpose.
It will thus be seen that by statute a decree for money is made a lien on lands to the same extent, and under the same limitation, as a judgment at law, and that when, in a cause in equity, the court, in its decree, orders that the same shall be a lien upon real estate, the lien shall have the same force and effect, and be subject to the same limitations and restrictions, as judgments at law.
Although the lien of a judgment is given by the statute, in terms the most general, against “all and singular the lands, tenements and real estate” of the judgment debtor, the lien has ever been held by the decisions of this court to ' be limited in extent to the territorial jurisdiction of the court rendering the judgment. Thus, in Bustard v. Morrison, 1 Scam. 236, the court say: “The statute makes judgments of the circuit court a lien upon all the lands of the defendant within its jurisdiction. * * * The judgment of a court creates no lien upon land beyond the limit of its jurisdiction, to-wit, the county in which such judgment is rendered. ” In Kinney v. Knoebel, 51 Ill. 119, it is said: “It is the settled law of this court that the lien of a judgment upon real estate is only eo-extensive with the limits of the county in which it is rendered, ” and see Durham v. Heaton, 28 Ill. 264; Ewing v. Ainsworth, 53 Ill. 465.
The only way, under the statute then in force, of obtaining a lien upon land in Tazewell county under a judgment in the circuit court of Peoria county, would have been by the levy of an execution upon the judgment, and filing a certificate of the same in the recorder’s office of Tazewell county, and it is the levy of execution, not the judgment or decree, that creates the lien in such case on land in another county. Tenney v. Hemenway, 53 Ill. 97. The case declares it not the policy of the law to favor secret liens.
The lien of a judgment, then, of the circuit court of a county not extending beyond the boundary of the county, and the lien of a decree for money, or for the performance of any act other than the payment of money, being by the statute limited in its extent the same as the lien of a judgment at law, (Eames v. Germania Turnverein, 74 Ill. 56,) it follows that the decree of the circuit court of Peoria county was no lien upon lands in Tazewell county. That court had no power to extend the lien of a decree beyond the territorial boundary to which it was limited by law, and by declaration to that effect make its decree a lien upon lands situated in another county. The liens created by judgments and decrees of the circuit courts in this State are purely statutory. Tenney v. Hemenway, supra. The power can not be derived, as is supposed, from section 6 of the chapter entitled “Divorces, ” Rev. Stat. 1845, p. 197, sec. 6, giving to circuit courts the power to “enforce payment of alimony by causing the defendant to give security for the payment thereof, or in any other manner consistent with the rules and practice of the court. ” This general power means no more than that resort may be had to the known modes, under the rules and practice of the court of chancery, of enforcing obedience to writs, orders and decrees, as, sequestration, attachment for contempt, etc., or the statutory method of creating a lien on lands within the court’s jurisdiction. It does not authorize the creating of a lien upon real estate outside of the territorial jurisdiction of the court. That would be in contravention of the express terms of the statute that the lien of decrees shall be of the same extent, and subject to the same limitations and restrictions, as that of judgments at law.
A very proper mode of security of payment in this case would have been as suggested with reference to alimony made a lien on land, in Erissman v. Erissman, 25 Ill. 136 : “And for the purpose of giving notice of the lien, it would have been proper to have required a mortgage to be given for the payment. ”
The bill in the divorce suit set forth that the defendant was the owner of the premises in controversy, and various other specifically described tracts of land in Tazewell county and other counties in the State: that said lands and defendant’s personal property were worth $50,000. The bill prayed for a divorce and alimony. The decree ordered that the alimony allowed by it should be in satisfaction of dower.
It is urged by appellee’s counsel that the decree ought to create the lien it professes to do, because the alimony is given in lieu of dower, and that the defendant had no power, by taking a change of venue, to deprive the complainant of any equity or right in the premises to which she would have been entitled had there been no change of venue, and that purchasers of the land after the rendition of the decree should stand affected in their rights by the decree as from the time of the commencement. of the suit, after the manner that pendente lite purchasers are affected in their rights from the time of the service of the subpoena in a suit. Had- the bill here set up some specific claim of right in this land, and the decree established it, we need not say what might have been the effect of the decree in the respect suggested. But there is no such case here. Although the lands are named in the bill, no right is asserted in respect to them, nor are they, or any part of them, asked to be assigned for alimony, or any other relief asked in regard to them,—they are mentioned for the apparent purpose of showing the amount of defendant’s property, as bearing upon the sum to be allowed for alimony. The decree allows as alimony a sum of money,—$500 a year,—and orders merely that the decree shall be a lien upon the lands as security for the payment of the alimony. Where land is no more involved than this in a legal proceeding, the commencement or pendency of the suit furnishes no notice to affect the rights of purchasers. We do not see that the circumstance that the suit for divorce was commenced in the circuit court of Tazewell county, and taken by change of venue to the" Peoria county circuit court, gives to the .decree of the latter court any more effect as a lien upon land in Tazewell county than it would have had if the suit had been originally instituted in the circuit court of Peoria county. Nor do we perceive that the alimony being decreed to be in satisfaction of dower, makes any difference as to the lien of the decree.
There is now a statute which meets such a case as that of plaintiff, it providing that where there has been a judgment or decree in any civil case in which the venue has been changed, a transcript of the judgment or decree may be filed in the office of the clerk of the court where the suit was instituted, and that the clerk shall enter the same in his judgment docket, and execution may issue thereon, and the same shall, from the filing of such transcript, have the same operation and effect as if originally recovered in such court. Rev. Stat. 1874, p. 1097, sec. 34. But this statute was too late to help the case of plaintiff, the passage of the statute being in 1874, and the rendition of the decree in 1859, and the sale and conveyance by John Wightman to William' Wightman in 1866.
The judgment' of the circuit court is reversed and the cause remanded.
Judgment reversed.
Mr. Justice Scott dissenting.