Bank of Missouri v. Wells & Bates

1. If an execution be issued upon a judgment, arid levied while the judgment is a lien upon real estate, the effect of this is to continue the ixen and its priority until the writ is executed; although before it is executed, the time during which the judgment is alien, had elapsed.

ERROR TO MARION CIRCUIT COURT! 1st. The lien of a j udgment without revivor expires by the express proviso of the statute at tho end of three years. Seo R. Code 1835 p. 339. The lien of the judgment is a right created by the statute, and cannot bo extended farther than the statute goes. 9 Wendell 158; 5 Cowen 294; 18 Wendell 622. In New York it will be seen by the authorities quoted that the provisions of the New York statute except front the computation of the period of the lien, any portion of that period in which there may have been enjoined by some order in chancery against proceeding. No such provision is contained in the statute of Missouri. The words are “liens shall commence on the day of the rendition,’’ and shall continue for three years. It is not said they continue longer; unless revived, of course'they do not. If it was designed by the law giver to continue it longer by issuing execution, he would have said execution, and not scire facias. The instruction of the court is directly in the teeth of the statute. The statute says it may be continued by scire facias; the court says it may be continued by execution. The statute has no exception in it, the court says the failure of the court to sit is an exception. The failure of the term is not hardship on the judgment holder, he should have taken his scire facias. By the law of Now York it appears tlie judgment does not cease to be a lien against the judgment debtors^ the lien ceases only as to the third person; by óur law the iien ceases as to the defendant in j udgment. 7 Cowan 540. The circuit court regarded the case in 1 Cow. 495, which declares the lien extended by execution taken out as an authority in point, but that case went upon a provision in the statute in force at the time. By our statute the scire facias is the only means of extending the lien. 2d. The lien of the plaintiff’s judgment was revived and continued for two years by suing out a scire facias before the expiration of the three years, the same having been regularly prosecuted to judgment afterwards. R. C. 1835, sec. 6-7 and C. 10, Í Gilman R. 644; 2 Tuck. Com. 375-6; 2 Am. Chy. Dig. p. 10, No. 49. 3d. The evidence introduced by the plaintiff showed a right of recovery in the plaintiffs against the de'biKlanls if the foregoing propositions are correct. Here the plaintiff purchased all the interest ol Wm. Wright, but Wm. Wright has transferred that interest in defiance of law to Bates, and Bated has so transferred at to Welle ; under the circumstances it seems to us the circuit court ought to have held tile pos.TJssinn of Bates and Welle the possession of Wright. 1 Wendell 317; 6 John R 33-4 5; lOJohnsR. 291-J: 18 Johns 7; Jb. 92. The doctrine of this court has been affirmed by tiiis court. 5 .Un. R. 43. 4th, Tho lion of tho execution is a different thing from the lien of judgment, commences only When the it ft comes to the halt is of tho officer, (R C. 1835, sec. 18, p. 25S) exists whother the judgment has n lien or not, and may be determined on principles peculiar to itself. See Wise vs. Darby 9 Mo. R. 131 ; we know of no principle by which two Hons existing contemporaneously can. 5th. The statute upon the subject of the lapse of term of court will not save the defendant’s right. Tho plaintiff took his scire facias, anti the s.tirte remedy was open to the defendant. He refused to resort to it. He knew the court hal lapsed, and that it constituted no exception in the statute, but still refused. The hardship of which he complains is the result oí his delay for two whole years to execute his lion, and his rofuva! to revive it under the statute Tho judgment lien in this case is not embraced by the wor.is of this statute. Tite legislature has the power to make the process of the-courts returnable to such ¿courts as they choose, hut whether the legislature could extend this judgment Hen is a graver question. 1st. The levy of the execution upon the land during the lien ofthe judgment, created a lien which gave precedence, and could not be lost by the lapse of a term of the court, 2d. The plaintiff's judgment in scire facias did not revive the lien as to his original judgment, it "being a new judgment for a certain sum, and execution awarded thereon. It could only enforce itself and not relate to any other judgment. In 2 Croke 73, a sheriff had seized goods which wore not sold nor execution returned, and sheriff dismissed from office, and aiterwards the ex. sheriff sold the goods—courts say that the execution was an entirety, that it gave him authority to s-dl without any other writ and the sale good. This has ever since been the law, that when a levy is made during the life of an execution, no venditioni-exponas is necessary, but the sale bo made on the execution that was levied, as by virtue of that levy it is sold, the writ of ven, exponas merely going to sell what has been heretofore levied on. The session acts of 1842-3, at page 54, Lays that no recognizance, suit, or oilier matter shall be dismissed discontinu •or fail by reason of the alteration of the times of holding said courts. There was two terms of the court yet to elapse bofor1 the expiration of the lien of the judgment, which lapsed, no person was to be prejudiced by the alterations of the terms of the court. The levy was made long before the expiration of the lien of the judgment. The levy vested th© property in the sheriff in contemplation of law. The levy was notice to all persons.