Street v. Smith

85 Miss. 359 | Miss. | 1904

Truly, J.,

delivered the opinion of the court.

The demurrer of appellant was properly overruled. The judgment in favor of Jerdine against Mrs L. A. Munger was assigned in writing — so the bill avers — to appellee before the expiration of seven years from the rendition thereof. By suit in the name of the assignee of the judgment, brought within the time prescribed by § 2743, Code 1892, the lien of the judgment was extended under the operation of § 2743, Code 1892. This was a full compliance with all of the provisions of law governing the renewal and extension of the lien of judgment which were obligatory upon the appellee.

Sec. 2462, Code 1892, has no application to judgment liens. This is made manifest not only by the connection in which the •section is used in the chapter devoted specially to “Lands and Conveyances,” and dealing primarily with the registry laws of the state, but it also becomes evident from an examination of the language of the section when considered in connection with other code sections relating to the same subject-matter. See. 2462 recites that where the remedy to enforce any mortgage, deed of trust, or other lien on real or personal property which is recorded appears on the face of the record to be barred by the statute of limitation, the lien shall cease and have no effect as to creditors and tona fide purchasers, unless within six months after such remedy is so barred the fact that such lien has been renewed or extended appears by entry on the margin of the record thereof, or a new mortgage, deed of trust, or lien noting the fact of renewal or extension be duly filed for record within such time. It is apparent that the section was never intended to apply to liens of judgments after enrollment which exist only by virtue of express statutory provisions, because judgment liens are not recorded, within the meaning of this section, and because a judgment lien can neither be renewed nor extended by the creditor, debtor, or trustee, as' required by ch. 98, p. 106, Laws 1896, amending sec. 2462. Again, no new lien can be executed and duly filed for record, as required by the terms of this section, by which to note the fact of the renewal or extension of the judgment lien. Sec. 2462 applies solely and exclusively to liens which are created by contracts between the parties, and which are evidenced by writing- duly filed and recorded under the registry laws. As such liens arise out of the voluntary acts and agreements of the contracting parties, so they may be renewed or extended by similar acts or agreements, provided the fact of such extension or renewal be evidenced in the manner which the statute requires. The provision of law which permits all such contractual .liens to be renewed or extended by agreement of the parties, by notation upon the margin of the record, serves a twofold purpose: First —It gives notice to all creditors and bona, fide purchasers that such lien was still in existence, and continued to rest, notwithstanding the apparent bar by limitation, upon the specific property therein mentioned. Second — Tt affords to the parties themselves a simple, convenient, and inexpensive method of extending the payment of the indebtedness secured by such instrument without losing the lien granted as security therefor and without the "trouble and expense of preparing and recording new instruments. But the lien of an enrolled judgment is controlled by an entirely different and distinct legal principle. A judgment lien is established only by a solemn and final adjudication of a competent court, and takes effect as against creditors and subsequent bona fide purchasers from the date, not of its entry on the minutes of the court, but of its rendition, but only after due enrollment upon the judgment roll provided by law for the information of all concerned. And as the judgment lien is created by the final decision of a court, so it can only be renewed or extended by a similar process. The lien of a judgment can be extended by the filing of another suit upon the judgment before the expiration of seven years from the date of the rendition thereof, and in no other manner. In the instant case this course was followed by the appellee, and the fact that he had obtained and held a judgment against Lucy A. Munger appeared on the judgment roll — the proper place .for such entry — not only within six months of the expiration of seven years from the rendition of the Jerdine judgment, but, in point of fact, several days before the lien of the Jerdine judgment had expired. The enrollment of the judgment rendered in favor of appellee by force of the statute renewed and extended the lien of the Jerdine judgment in his favor as assignee. The fact that the judgment roll did not show the assignment of the Jerdine judgment to appellee, or that the judgment in favor of appellee was based on the Jerdine judgment, does not in any wise affect the lien granted by law to the judgment creditor. The statute does not so require.- An inspection of the judgment roll would have shown appellant that there was a judgment against Mrs. L. A. Munger, one of the parties who executed the trust deed to him, and who had originally owned all the lands included in that trust deed, and it would have shown, further, that there were judgments then in force against the said Mrs. L. A. Munger; and this was sufficient to put him on inquiry to ascertain whether the liens which they carried were in renewal and extension of former judgments also appearing on said'roll and whether such liens had been properly kept alive and extended by suits filed in due time on such former judgments. It is not the judgment roll alone that a prospective purchaser must examine, but, if it shows judgments alive and unsatisfied, he must go farther, and see what the records of the court show to have been the foundation of. the suits in which the judgments were rendered. Had appellant adopted this course, the bill avers and the demurrer admits, he could readily have ascertained that the Jerdine judgment had been assigned to appellee, and that the lien thereof had been by appellee in due time and in proper manner kept alive and extended, and still rested upon the property on which Mrs. Lucy A. Munger and others executed to him a trust deed. The whole matter is regulated by statute, and appellee, having complied with all the requirements of law, is entitled to its protection.

Affirmed and remanded, with leave to answer within sixty days from the 'filing of the mandate in the court below.