39 S.C. 259 | S.C. | 1893
The opinion of the court was delivered by
Joshua Madison Woodward died intestate in 1889, and this action was instituted by his heirs to partition his estate. He was seized of an undivided half interest in a certain tract of laud, his brother, D. Hagood Woodward, being seized of the other moiety thereof.
It seems that the rights of all the parties have been adjusted, except the conflicting claims of D. Hagood Woodward on the one part, and George W. Croft and S. M. Meyers on the other part, as to the interest in the share of one of the heirs of the estate, viz: J. L. Woodward, against whom Meyers and Marcus had a judgment, which was entered on October 6, 1880, upon which execution was issued and returned nulla bona within three days thereafter. Another execution was issued on October 16, 1882, and returned nulla bona on J uly 20, 1885. This judgment was revived by order of Judge Wallace on October 9, 1891, so as to have “the force, form and effect of the former recovery.” Accordingly, under this judgment thus revived, the interest of the said judgment debtor, J. L. Woodward, was duly sold and conveyed by the sheriff of Aiken County, on salesday in January, 1892, to G. W. Croft and S. H. Meyer, who claim the interest of the said judgment debtor in the land by virtue of the sheriff’s deed. This claim of title was contested by D. Hagood Woodward, a brother of the judgment debtor, who claims that he has title to the said land by virtue of a deed of conveyance from his brother, the judgment debtor, bearing date August 18, 1891. Under this state of facts the question was whether the alienee of the judgment debtor should prevail against the sheriff’s deed, for the reason that the debtor sold and conveyed the land in the interval of time between October 5, 1890, when the ten year lien on the judgment expired, and October 9, 1891, when the judgment was “revived;” upon the ground, as insisted, that during that interval of time there was no active living lien, which authorized a levy and sale by the sheriff.
From this judgment D. Hagood Woodward appeals to this court on the following grounds: I. That his honor erred in holding as matter of law, “that the judgment obtained October 5, 1880, by Meyers & Marcus against Joshua L. Woodward created a lien from the date of the entry for the period of thirteen years;” whereas he should have held that said judgment only created a lieu for ten years from such entry. II. That his honor erred in finding as a matter of law, “that the defendants, C. W. Croft and S. H. Meyers, as purchasers at the sheriff’s sale under said judgment, acquired the undivided interest of J. L. Woodward in the 'real estate sought to be partitioned;” whereas he should have held that the defendant, D. Hagood Woodward, acquired a valid title to said land by virtue of his deed from J. L. Woodward, when said judgment had lost its lien. III. That his honor erred in not finding as matter of law that the undivided interest of J. L. Woodward in the laud in question claimed by Joshua L. Woodward, and deeded by him to D. Hagood Woodward on August 18,1891, was then exempt as the “homestead” exemption of Joshua L. Woodward, and as such passed under his deed to his brother, and was not subject to attachment, levy and sale. IY. That his houor erred as matter of law in declaring as unconstitutional that portion of the homestead act of December 24, 1880, which applied its provisions of exemption to any judgment obtained upon any right of action arising subsequent to the ratification of the Constitution of the State.
In the case of King v. Belcher, 30 S. C., 381, it was held, that subdivision 2 of the amending act of 1885 did not have retrospective effect, so as to repeal the proviso of the section as to judgments entered after 1873 and before 1885. But as to all such judgments, the plaintiff might revive at any time within the three years of grace allowed. In the case of Ex parte Witte Brothers, in re Latham v. Moore, 32 S. C., 226, it was held, that the plaintiff might revive his judgment during the running of the original ten years, with the effect, not of creating a new and independent judgment, but of reviving an old one, with a like lien of ten years; and this revived lien, having been created before the expiration of the first ten years, of course connected with it, giving a continuous and unbroken lien during the new life of the revived judgment.
As we understand it, the summary proceedings to revive a judgment is in the nature of a scire facias, which, it is well understood, is not a new suit, but the continuation of an old one. (See Freeman on Judgments, sections 343 and 344.) The' authority to issue an execution on a revived judgment is based on the original judgment, which, being revived, retains its relative rank as to other liens. It is, therefore, clear, that as to
Mr. Freeman, at section 379, says a judgment may, through various circumstances, seem to be no longer of any force or effect, and may afterwards, by virtue of some judicial proceedings, be restored to its former condition. From its inseparable connection with the judgment, the lien may seem first to lose and then to regain its vitality. The restoration of the judgment and of its lien are always subject to the rights acquired during their temporary suspension. The same distinguished author, at page 381 of his book on Judgments, says: “The vacation of a judgment by order of the court, like its extinguishment by
This latter case cited was well and fully considered, giving the history of liens upon real estate from the earliest times. Among other things, he condemned the doctrine we are considering as follows: “And, therefore, if a plaintiff, after the time allowed for suing out execution, revives his judgment, his attendant lien can only operate prospectively, and not with any. retrospective effect, so as to overreach any intermediate encumbrances or alienations; for although, as between the parties to the judgment when revived, it may be permitted to operate as a lien upon the property of the defendant from its date; yet as a legal relation is never suffered to work a wrong, it can not be permitted to bind the property as against any intermediate encumbrancer or bona fide purchaser without notice, but from the date of its revival” (citing a number of authorities). “And so, too, as to deeds, to the validity of which recording is necessary, the recording of them after the time prescribed is not allowed to effect by relation the rights and interests of intervening purchasers or creditors,” &c. It seems that the doctrine as to the effect of a revival under the circumstances stated,
From the view which the court takes as .to the first question, it will not be necessary to consider the second, as to the right of the judgment debtor to a homestead in the premises, which is the subject of the contention.
The judgment of this court is, that the judgment of the Circuit Court be reversed, and the case remanded for such further proceedings as may be considered necessary to carry out the conclusions herein announced.