Stevens v. Mangum, 27 Miss. 481

27 Miss. 481 | Miss. | 1854

Mr. Chief Justice Smith

delivered the opinion of the court.

It appears that two judgments were rendered against William Dinkins, in a magistrate’s court in Holmes county, on which executions .were issued, directed to the sheriff, or any constable in the county of Yazoo. These executions were levied upon a certain horse as the property of the said Dinkins. Stevens, the plaintiff in error, sued out a writ of replevin against the officer who made the levy, and upon giving bond as required by the statute, the officer having failed to do so, the property was delivered to him. An issue was made up in the cause and submitted to the jury, who found for the defendant; whereupon judgment for the assessed value of the horse and damages was entered against Stevens, who filed a bill of exceptions, and sued out a writ of error to this court.

It is now insisted that the judgment was erroneous.

1. Because the levy under which the defendant claimed title to the horse was illegal and void, having been made in Yazoo county, in virtue of executions emanating upon judgments in a magistrate’s court rendered in Holmes county.

It is provided in the 18th section of the statute, in regard to justices of the peace, H. & H. 429, that “ on all judgments rendered by any justice of the peace, execution shall issue in like manner as on judgments rendered by any court of record; ” and by the last clause of the same section it is further provided, that “ all executions and summons for garnishees in attachment, shall issue to the county in which such principal or surety or garnishee may reside, and shall be duly executed and returned by the sheriff, coroner, or constable of the county to which the same is sent.”

This was an express authority for the issuance and direction of the executions, if Dinkins was a resident of Yazoo county. But it was not shown that he did not reside in that county. The bill of exceptions does not profess to embody the whole of the evidence, or the substance of the evidence offered on the trial, and it is perfectly silent as to the fact of Dinkins’ residence. We must, therefore, upon a principle applicable in all cases in which the judgment of a court is brought in question, presume that evidence was introduced on the trial which proved to the jury that Dinkins was a resident of Yazoo county at the time when the executions were issued and sent there.

2. Because the judgments were not enrolled, agreeably to the statute, in the clerk’s office of Yazoo county.

Judgments obtained in a justices’ court bear equal dignity with judgments rendered in the circuit courts. Hutch. Dig. 701, § 13. It has been holden by this court, that justices’ courts are courts of record, and that judgments pronounced before them are within the provisions of the enrolment law. Brian v. Davidson, 25 Miss. R. 213. Hence if no lien attached to the property levied on before it was sold by Dinkins, and transferred from Holmes county into Yazoo, the levy was unauthorized and void. If, on the other hand, a lien in favor of the judgment creditor attached in Holmes county, the removal of the property, subsequently, would not divest it. Chilton v. Cox, 7 S. & M. 791.

The lien of a judgment commences and takes effect from the date of the enrolment, and not from that of the judgment. Hence, if the judgments were not enrolled in Holmes, the property was not subject to be levied on in Yazoo county, particularly as it had passed from the ownership of Dinkins, the defendant in the executions. But we must presume that the judgments were duly enrolled in Holmes, and that they constituted a lien on the property, as the fact of the non-enrolment was not made a ground of objection, and as nothing appears in the record from which it could be inferred that they were not enrolled. We must presume in favor of the verdict and judgments, in the absence of proof to the contrary, distinctly appearing of record, that every fact necessary to sustain the title of the defendant was established by the evidence in the cause.

3. Because the property, when levied on and taken in charge by the officer, was not liable to seizure and sale under the execution. The plaintiff was in possession and claimed title to the property as a bond fide purchaser, from a person to whom it was previously sold in Holmes county by the judgment debtor.

The validity of this exception must depend upon the 8th •section of the enrolment law. Hutch. Dig. 892. By that section it is provided, that “ the liens of judgments, decrees, and forfeited forthcoming bonds, shall operate only in favor of the judgment creditor, against the judgment debtor or debtors and purchasers from such judgment debtor or debtors, and then only from the day of their enrolment as between them.”

This language admits of but one interpretation. It was intended, manifestly, that the lien of judgments should not attach to property which was transferred by the judgment debtor, and which had passed from his vendee into the possession of a sub or remote vendee. The policy of this rule may well be questioned ; but it is foreign from the duties of courts to comment upon the expediency of a legislative enactment, when no doubt can exist as to its meaning.

When the plaintiff purchased the property in question, he acquired the title divested of the lien which had attached, and which followed it into the hands of the first purchaser. It was not liable for the debts of the defendant in the executions, and consequently the levy was illegal and void.

Let the judgment be reversed, and the cause remanded for further proceedings in the court below.