Colt v. DuBois

Gantt, Ch. J.

This suit was brought in the court below by Henry DuBois to foreclose a mortgage, executed and delivered to him by defendant O. J. Martin, and the mortgage was filed for record on the thirteenth of March, 1875. The plaintiff in error and several other parties were defendants; but the only matter now in controversy is between the plaintiff in error and defendant J. W. Hartley. This controversy arises upon the following facts: On the eighteenth of October, 1872, defendant O. J. Martin acquired title to the north half of the south-west quarter, and the south-east quarter of the south-west quarter, and the south-west quarter of the south-east quarter of section twenty-eight, in township twelve north, of range six east, in Lancaster county. In August, 1872, Isaiah Coppock commenced an action against O. J. Martin, in the district court of said county, and on the thirtieth of October, 1872, at a regular term of said court, *393 which was begun on the first day of the same month, he recovered a judgment against said defendant Martin in said action. Afterwards Coppock assigned this judgment to defendant J. W. Hartley, who thereby became the legal owner of the same. On the second of November, 1874, O. J. Martin and Ann, his wife, executed and delivered to S. C. Colt, plaintiff in error, a mortgage on all the above described lands. The plaintiff complains that, under these facts, the court below erred in deciding that the Coppock judgment, assigned to Hartley, had priority of lien over his mortgage.

It is insisted that the judgment, in this case, has relation to the first day of the term at which it was rendered, and as all the lauds described were subsequently acquired by defendant, O. J. Martin, the judgment created no lien upon any of these lands, though the title was acquired before the rendition of the judgment; and therefore the plaintiff’s mortgage has priority of lien over the judgment.

The rule will not be questioned that, under our statute relative to judgment liens, all judgments rendered during the term, in actions commenced prior thereto, are liens on all the lands of the debtor within the county from the first day of the term. This interpretation is given to the statute in the case of Miller v. Finn, 1 Neb., 294 ; and it places all such judgments, entered at the same term, upon equality in regard to liens, and thereby does equal justice to creditors whose judgments are necessarily entered on different days of the terms.

Section 476 of the code provides that “ the lands, tenements, goods, and chattels, not exempt by law, shall be subject to the payment of debts,” and may be taken in execution and sold.

Section 474 provides that executions may be directed to different counties at the same time, and section 477 declares that “ the lands and tenements of the debtor *394 within the county where the judgment is entered shall be bound for the satisfaction thereof from the first day of the term at which the judgment is rendered; but judgments by confession, and judgments rendered at the same term at which the action is commenced, shall bind such lands only from the day. on which such judgments are rendered. All other lands, as well as goods and chattels of the debtor, shall be bound from the time that they shall be seized in execution.”

In construing these sections together, it seems clear that the words “ all other lands” must necessarily refer to lands without “ the county where the judgment is rendered”; and under section 474 executions may be directed to the counties in which such lands are situated, and they “ shall be bound from the time they shall be seized in execution.”

A judgment does not create a specific lien upon any particular lands of the judgment debtor. It, at most, creates a general lien upon all his estate in the county in which the judgment is rendered.' But the judgment creditor acquires no interest in the land itself by his lien. As was said in the case of Brace v. Duchess of Marlborough, 2 P. Wm., 491, the lien is neither a jus in re, nor jus ad rem, and amounts only to a security against subsequent purchasers and incumbrances. 4 Kent Com., 437. It confers only the right to levy on the land to the exclusion of other adverse interests subsequent to the rendition of the judgment, and this right applies to all the lands and tenements of the debtor in the county where the judgment is entered, whether held by him at the time of the rendition, or subsequently acquired.

In Filley & Hopkins v. Duncan, 1 Neb., 134 , Crounse, J., in delivering the opinion of the court says, that the lien of a judgment does not attach to lands acquired after its rendition, so as to affect bona fide pur *395 chasers. That question was not before the court. It appears from the statement of facts in that case that in July, 1859, one Bell, being in possession of certain real estate, and holding the legal title to an undivided half thereof, and a contract of purchase for the other half, sold the same to Mrs. Duncan, and gave her a bond to convey the same to her as soon as he obtained a deed authorizing him to do so. Mrs. D. immediately took possession, and in October of that year paid nearly the entire amount of purchase money. In May, 1860, Bell executed and delivered to Mrs. D. a deed for the premises. In December, 1859, certain judgments were recovered against Bell in the district court, under which the undivided half of the lands in controversy was sold. The action was brought to have the sheriff’s deed executed in pursuance of such judicial sale declared void.

In Calhoun v. Snyder, 6 Binney, 135, it was held that the lien of a judgment did not attach to lands in which the judgment debtor had no interest at the time of its rendition. Afterwards it was held in that state that if, at the time of the rendition of the judgment, the debtor had .entered into a binding contract for the purchase of land and afterwards acquired the legal title, the lien attached and took precedence of a judgment entered against the debtor immediately after he had acquired the legal title to the same. Stephen’s Appeal, 8 W. & S., 186 . Freeman on Judgments, 367.

In Roads v. Symmes, 1 Ohio, 314, the case of Calhoun v. Snyder is cited with approval, and followed.

In Stiles et al. v. Murphy, 4 Id., 98, the court, in referring to Roads v. Symmes, say: “ That decision may have been an innovation upon established principles of law — it may have been a departure from true policy under the circumstances in which we are placed — but it would be a more dangerous innovation, and a wider departure from true policy now to disturb it.”

*396 It is undoubtedly true, that where a rule of construction, upon which titles to real estate depend, has been adopted, it may lead to great inconveniences, if not injustice, to change it. But as the question presented by this case has never before been submitted to this court, we deem it best to disregard the dictum in the case of Filley v. Duncan, and lay down what we deem to be the correct rule, subjecting land acquired subsequently to the rendition of a judgment to its payment. The judgment of the district court is affirmed.

Judgment aeeikmed.