136 So. 834 | Ala. | 1930
(1) It is stated that the sale and delivery to Lawler of the fertilizer levied upon; and the payment of the purchase price therefor, and the execution of the mortgages thereon by Lawler to Scharnagel — the appellant-claimant in the court below — were concurrent acts. The latter was the moving consideration for the purchase, sale and delivery of the subject-matter of the execution to Lawler, the mortgagor and defendant in judgment. When the title passed from the farm bureau to Scharnagel, and thence title and possession to Lawler, it was incumbered by its purchase-money mortgages to Scharnagel, who paid its purchase price and procured or caused delivery to Lawler. The transactions were concurrent. They entered into the consideration and affected the title, and qualified the possession in Lawler in such wise as to prevent the attaching of execution lien that was superior to such purchaser and claimant. See case of concurrent acts, Fields v. Karter,
(2) The case of Rea v. Keller,
(3) Adverting to the statute creating the lien by recorded judgment (section 7874, et seq., Code of 1928) "in the county where filed, on all the property of the defendant which is subject to levy and sale under execution," it is declared that the filing of certificate of judgment as provided "shall be notice to all persons of the existence of the lien thereby created." This lien created is intended to have the effect of an execution in the hands of the sheriff "as an instrumentality of creating and preserving a lien" (Manchuria S. S. Co. v. Harry G. G. Donald Co.,
The foregoing principles are established by this court, and are decisive here. When the judgment was recorded, there was no such property of the defendant in existence; and, when by concurrent acts it was purchased, mortgaged, and delivered to defendant, it came to Lawler — judgment debtor — subject to the prior right of Scharnagel. And at no time could the lien of Quinn's recorded judgment attach to said property and defeat the superior right of said purchaser-vendor.
It results that the rehearing is granted, and the writ of certiorari will be duly awarded.
All the Justices concur.