Warren, Wallace & Co. v. Jones

| S.C. | Mar 9, 1878

The opinion of the Court was delivered by

McIver, A. J.

This was an action brought by the plaintiffs to recover the net proceeds of the sale of two mules, two steers and two wagons, sold as the property of one J. G. Boozer by the defendant, as Sheriff, under an execution in favor of one G. W. Hodges, as trustee, against said Boozer. The plaintiffs claim that these articles were covered by a mortgage given to them by said Boozer, duly recorded and dated the 25th of March, 1876, given to secure a debt which became payable on thelstof November, 1876, while the defendant insisted that they were first liable to the lien of the above mentioned execution. This execution was originally issued on a judgment recovered by G. W. Hodges, as trustee, against J. G. Boozer, in which Mrs. C. M. Wilson had an interest, and which was entered in the proper office on the 10th of January, 1867, on which day the original execution was lodged in the Sheriff’s office. The record of this judgment having been destroyed by fire, “it was renewed and revived on the 3d of July, 1875, to the extent of Mrs. C. M. Wilson’s interest ” therein, and a new execution was issued thereon and lodged in the Sheriff’s office that day, under which the property above mentioned was levied upon by the defendant on the 6th of January, 1877, and by him sold on the following sale day.

The Circuit Judge charged the jury that the execution creditor was entitled to the proceeds of the sale by reason of the priority of the lien of the execution to that of the mortgage. To this charge the plaintiffs excepted, and, the facts being all conceded, the only question is one of law — whether the execution creditor or the mortgagees were entitled to the proceeds of the sale. On the part of the plaintiffs it was argued that by the Code of Procedure, which it was claimed applied to all executions issued after its adoption, an execution had no lien on personal property until it was levied, and that as this execution was not levied until after the execution of the mortgage to the plaintiffs the mortgage had the superior lien. Passing by the question suggested by Inglis, J., in McKnight vs. Gordon, (13 Rich. Eq., 247,) whether there is not under our law such a legal estate still remaining in the mortgagor of a chattel, as well after as before condition broken, as may be the subject of levy and sale under an execution against him, and, consequently, whether the proceeds of sale in this case represented anything more than such legal estate, or equity of redemption as it may be called, to which the execution creditor would be entitled, leaving the mortgagees to their remedy against the specific - property in the hands of the purchaser, we prefer to rest our decision upon other grounds.

There can be no doubt but that, prior to the Code, executions were liens upon personal property from the date of their lodgment in the Sheriff’s office, even after they had lost their active energy.— Snipes vs. Sheriff of Charleston, 1 Bay, 295 ; Brown vs. Gilliland, 2 DeS., 539; Greenwood vs. Naylor, 1 McC., 414. Indeed, Nott, J., in State vs. Laval, (4 McC., 342,) in speaking of this doctrine, says: “It is peculiar to this State, but it is too well established now by a series of decisions to be controverted.” And Harper, J., in Mitchel vs. Anderson, (1 Hill, 73,) in reference to these decisions, uses this language: “ The doctrine established by them has been too long and too firmly settled to be shaken now.”

Has, then, the Code made any alterations in this respect in regard to executions issued upon judgments recorded prior to its adoption ? Section 316 of the Code, as originally adopted, reads as follows : “ The lodgment of executions hereafter issued with the Sheriff shall not bind the personal property of the debtor, but personal property of the debtor shall only be bound by actual attachment or levy thereon.” This Section was, however, stricken out by the 15th Section of the Act of 25th of November, 1873, (15 Stat., 499,) and another inserted, which provides, among other things, that “Executions * * * when levied on personal property shall be a lien on such property for the period of four months from the date of such levy, * * * and whenever renewed shall be subject to the rules herein provided.” The question is, do these statutory provisions operate to deprive an execution issued after the adoption of the Code, upon a judgment recovered before, of the lien which it would have had under the previous provisions of the law upon this subject ? To give these provisions of the Code such a construction would be not only to give them a retrospective operation but would have the effect of divesting vested rights; for, as it has been shown, •Hodges unquestionnbly had, under the law as it stood prior to the Code, a lien which is a vested right upon all the personal property of Boozer.

Now, we are admonished in the case of Ex parte Graham (13 Rich., 277,) that Courts, in construing statutes, should be very careful, if possible, to give them such a construction as will avoid such a result. The following language from Smith’s Commentaries on Statute and Constitutional Law is there quoted with approval: “ It is a general rule that statutes are not to be construed retrospectively, or so as to have a retrospective effect, unless it shall clearly appear that it was so intended by the Legislature, and not even then, if, by such construction, the act would divest vested rights.” And Cooley, in his work on Constitutional Limitations, says at page 370: “It is a sound rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively.” Looking at the provisions of the Code in the light of these principles, it is very clear that they can and must be construed so as to avoid giving them the retrospective operation claimed for them in this case. Even if Section 316 had remained as it was originally written, we would be bound to construe it as relating only to executions issued on judgments obtained after the Code; but as the original Section has been expressly repealed, there is certainly nothing in the Section substituted for it which requires or even warrants us in applying its provisions, so far as the question of lien is concerned, to executions issued to enforce judgments obtained prior to the Code. For it would be by implication only that its provisions could be extended to such executions; and certainly no one will contend, in the face of the above cited authorities, that a statute should be given a retrospective operation merely by implication, .especially when the effect would be to divest rights already vested. Indeed we might, if necessary, go further and say that even if the Code had, in the most express terms, declared that the lien which had been acquired by the lodgment of an execution, obtained prior to the adoption of the Code, should be divested, such an Act would be beyond the competency of the Legislature. For, while it may be true, as a general proposition, that a law which regulates the issuing and effect of an execution relates to the remedy merely, and that whatever belongs to the remedy merely may be altered according to the will of the Legislature, yet this, like most general propositions, is subject to the qualification that such alteration must not impair the obligation of the contract.' — -State vs. Carew, 13 Rich., 498, and the cases therein cited and commented on. To use the language of the Supreme Court of the United States in Gunn vs. Barry, (15 Wall., 610" court="SCOTUS" date_filed="1873-03-31" href="https://app.midpage.ai/document/gunn-v-barry-88645?utm_source=webapp" opinion_id="88645">15 Wall., 610,) adopted by this Court in Cochran vs. Darey, (5 S. C., 127,) “ the legal remedies for the enforcement of a contract which belong to it at the time and place where it is made are a part of its obligation. A State may change them, provided the change involves no impairment of a substantial right. If the provisions of the Constitution or the legislative Act of the State fall within the category last mentioned, they are, to that extent, utterly void.” Certainly, then, if the Legislature of this State had undertaken, by the Code of Procedure (which, however, we do not think it did,) to deprive the execution creditor in this case, of the lien which he had acquired by the lodgment of his execution on the 10th January, 1867, it would have involved the “ impairment of a substantial right,” and, consequently, would have been “ utterly void.”

Again, it may well be doubted whether the execution under which the sale was made in this case can be regarded as the renewal of an execution in the proper sense of those terms, as used in the Act amending the Code, hereinbefore cited, or whether it should’ not rather be regarded as a mere substitute for the original execution, issued under the provisions of the “Act to remedy and supply the loss of public records and to perpetuate testimony in regard to deeds, mortgages, settlements and other papers lost by fire at Abbeville,” approved 27 th February, 1873, (15 Stat., 452,) which by its express terms gave to the papers so substituted the same efficacy which the original records had. The mere accidental burning of the books and papers which evidenced this judgment and the execution issued to enforce it, certainly could not have the effect of destroying any of the incidents or attributes of such judgment and execution, and the papers substituted stand in the place of the originals, furnishing all the evidence, conferring all the authority and securing all the rights which the originals would have done.

We are, therefore, unable to perceive any error in the charge of the Circuit Judge, and the motion must be dismissed.

Willard, C. J., and Haskell, A- J-, concurred.