Parker v. Swan

Á judgment entered up by a justice of the peace in the following words, “judgment in favor of the plaintiff for sixty-one dollars and eighty-three cents and costs,” is avalid judgment in conformity with the warrant and against all (he defendants therein named. A description of land in a levy in these words, “seventy acres of land belonging to John Doak lying on the waters of Stone’s river,” is sufficient; the title does not rest on the description in the levy; all that is necessary in the levy is some general description that will by reasonable intendment connect it with the sale and deed- Where land is levied on by a constable and sold by order of court the title of the purchaser relates to the time of the levy made by the constable.

Moses Swan instituted this action of ejectment in the circuit court of Rutherford county against Parker and Collier, and at the July term, 1839, the cause was submitted to a jury under the charge of the honorable A. J. Marchbanks. A verdict was rendered in favo.r of the plaintiff for seventy acres of land. A motion was made to set aside the verdict but overruled, and a .judgment rendered in conformity therewith. The defendants appealed in error to this court. contended: 1. 1 hat the judgments under winch tins land was sold were void tor tainty. A warrant is issued against Blakely, Ashbrooks and Doak, and executed upon them; the justice endorses upon the warrant, “Judgment in favor of the plaintiff for sixty-one dollars and eighty-three cents and costs.” Against whom is this judgment rendered? Will it be answered that it is against all three persons named in the warrant? True it may have been; but it is equally true it may have been against Blakely only, or against any one of the defendants named in the warrant. The endorsement made on the warrant would apply as well to a judgment against Blakely as to a judgment against all of the defendants. It would be as much a judgment in favor of the plaintiff if against one as against all, and the justice’s endorsement would be as true in one case as the other; to resort to a presumption to sustain a judgment would be carrying the doctrine of presumptions further than in his opinion it had been hitherto carried. If we could assume the fact to be, that in suits by warrant against several defendants, in which judgment is rendered in favor of the plaintiff, judgment is always rendered against all of the defendants, then we could know with certainty that the justice of the peace did render a judgment against Doak. This, however, would be the assumption of a fact to be true which we know to be untrue. This judgment is therefore void for uncertainty; and if void, the purchaser could take no title by his purchase. 2. The levy contains no sufficient description of the landánd is bad for its vagueness and uncertainty. It shows that there was seventy acres belonging to Doak levied on, and that it laid on the waters of Stone’s river, but in what county or civil district or by whose land it is bounded does not appear. In Pound vs. Pullen's lessee, judge White dwells with much force upon the dangerous consequences flowing from sustaining such vague levies, idee 3 Yer. 338. There is no proof introduced to render this levy certain; it cannot therefore sustain the subsequent sale. 3. The circuit judge charged the jury 1hat the title of the purchaser related to the date of the levy bv the constable-This was error. The lien can only operate from the judgment of condemnation. This question is to some extent a new one in our courts, and in settling it the court should look at the policy of our law on all subjects connected with the sale, transfer and divestiture of title to lands. It is a favorite object with our laws to protect the rights of bonafide purchasers against prior sales, liens, &c. Such was the sole object of our registration acts of 1831 and 1833. The 7th and 8th sections of the statute of 1831 changes in a great degree the law in regard to the lien of judgments on lands for the protection of bona fide creditors without notice of such judgments. The same policy carried out will decide the question as to the lien of the levy in favor of the plaintiffs in error; the adoption of a different rule will open the door for the commission of innumerable frauds. The proceedings of justices of the peace are not matters of record, nor are the proceedings of a constable acting upon process issued by them, nor are persons bound by law to be cognizant of them. Are we to be told then that the levy of a justice’s execution defeats a purchaser without notice by its lien? The rule in regard to personal property is different for a good reason; the officer at the time of the levy seizes the property, and the levy vests the right to the possession in the officer. There is no danger of imposition then being prac-tised on innocent purchasers. He contended that the lien should operate from the date of the judgment of condemnation'and not before. The cases of Ellar vs. Ray, 2 Hawks, 568, and Lash vs. Gibson, 1 Murphy, 266, were cases of conflict between creditors, in which the law would give the preference to the most vigilant. They do not apply to this case, cited Simmons vs. Ward, 6 Yerger, 521: Stinson’s lessee vs. Russell, 2 Ten. 44: Campbell vs. Lush, el al. 4 Hay. 60: Darby’s lessee vs. Russell and Hicks, 5 Hay. 139, 142: Overton vs. Perkins, et al. Mar. and Yerg. 367: Mitchell vs. Lipe, 8 Yerger, 183: Porter’s lessee vs. Cocke, Peck, 39: Lash vs. Gibson, 1 Murphy’s N. C. Rep. 266: 2 Hawks, 268.