Beirne et al. v. Mower.

action is transferred by law to the assignees, just as the transfer occurred in this instance. The cases are strictly analagous. If, then, this was but the subject of a defence to the suit, it cannot be made available as a defence to the scire facias, as nothing which could have been urged to the original judgment, can be raised as a defence to the scire facias. We are, therefore, of opinion that the demurrer was improperly extended to the scire facias.

Judgment reversed, and cause remanded.

GEORGE P. BEIRNE ET AL. vs. WILLIAM B. MOWER.

Judgments rendered prior to the 24th of February, A. D. 1844, by virtue of the act of limitations approved that day, lost their lien on the 24th of February, A. D. 1846; and a levy made in the interval on property, whether real or personal, under execution upon such judgments, would not preserve the lien on the property levied on, from the date of the judgment. Therefore where B., on the 1st of October, 1838, obtained a judgment against R., which was enrolled on the 26th of June, 1844, and execution issued on it February 19, 1846, and was levied on the 23d of February, 1846, on a slave as the property of R.; and P., on the 27th of May, 1839, obtained a judgment also against R., an execution on which, in April, 1841, was levied on the same slave, who was sold in May, 1841, to M.: it was held, that, by the sale of the slave to M., the title thereto passed to M. subject to the lien of the judgment in favor of B.; but that judgment having lost its lien on the 24th of February, A. D. 1846, before it was perfected by a sale of the slave under it, M.'s title to the slave was freed from that lien, and became absolute.

The same rule, with reference to the limitation of the lien of a judgment after the 24th of February, 1846, where a levy has been made, but no sale made before that day, prevails as to personal, that exists as to real estate; the levy and seizure of the personalty, by the sheriff, vests no other title in the sheriff than that given by the lien of the judgment and the execution to enforce it united; and when the lien has expired to that extent, the right of the sheriff is at an end.

ON appeal from the circuit court of Hinds county; Hon. George Coalter, judge.

Beirne et al. v. Mower.

George P. Beirne and Geo. W. House recovered judgment in the circuit court of Hinds county on the 27th June, 1838, against Samuel C. Faulkner, in the sum of $1497.91.

Execution thereon issued, was levied, and a forthcoming bond given, with J. McLaran and H. D. Robertson, sureties, which was forfeited 1st November, 1838.

On the 19th January, 1839, a fieri facias on this bond was issued, on which no money was made.

The judgment was enrolled on the 26th of June, 1844.

On the 27th of May, 1839, Parham and Gibson recovered judgment in the same court against Robertson; execution thereon was issued in April, 1841, and levied on a slave named Reuben, as the property of Robertson. On the 3d of May, 1841, the slave was sold under this execution, and Wm. B. Mower became the purchaser, for the sum of $670, and immediately took possession.

On the 19th of February, 1846, execution, at the suit of Beirne and House, on their judgment, was again issued and levied on said slave, in the possession of Mower, as the property of Robertson, on the 23d of February, 1846. On the 12th of March of that year, Mower interposed his claim, and gave bond to try the right of property. A trial took place at the June term, 1847, at which the facts, as above set forth, were proved; and the court in effect instructed the jury that the lien of the plaintiff's judgment had expired on the 24th of February, A. D. 1846, and was not retained by the levy before that time. The jury found for the claimant, and the plaintiffs in the execution appealed.

Mayes and Clifton, for appellant.

E. W. F. Sloan, for appellee, contended,

5

1. The lien of the judgment can be saved only by an actual sale under execution within the time limited by the statute. Cow. R. 294; 9 Wend. R. 157; 1 Edw. Ch. R. 619; 7 Cow. R. 540; 18 Wend. 621.

2. Judgments in this state bind personal estate, as well as

Beirne et al. v. Mower.

land; but the liens of judgments are limited, alike as to personal or real estate.

3. Both are subject to sale under the writ of fieri facias; a mere levy on either does not, of itself, constitute a complete execution of the judgment; the sheriff is commanded to make the money.

Mr. Chief Justice SHARKEY delivered the opinion of the court. This was an issue to try the right of property, the plaintiffs being the oldest judgment creditors, and the defendant being a bonâ fide purchaser under a junior judgment. The plaintiffs' judgment accrued by virtue of the forfeiture of a forthcoming bond on the first of November, 1838. Execution again issued in January, 1839, but nothing was made. The judgment was duly enrolled the 26th of June, 1844, and it thereby became a lien for two years from the 24th of February, 1844. An execution was again issued on the 19th, and was levied on the 23d of February, 1846, on the negro claimed.

The adverse claim of Mower is predicated on a sale made under a judgment in favor of Parham & Gibson against Robinson, the owner of the slave, rendered on the 27th of May, 1839. The property was sold under execution which issued on the 22d day of April, 1841, and Mower became the purchaser on the 3d of May, 1841.

Mower made his affidavit on the 12th of March, 1846, and on that day gave his bond to prosecute his right.

The act of 1844 provides that judgments rendered before the passage of the act shall not operate as liens longer than two years after its passage. Under this statute, the lien of the plaintiffs' judgment expired on the 24th of February, 1846, the day after the levy was made, and of course the lien had ceased on the 12th of March, 1846, when Mower filed his claim.

The defendant had purchased under a junior judgment, before the passage of this statute, and of course held subject to the older lien, so long as that lien continued. The levy was made only one day before the lien expired, and the question is, whether this circumstance will prolong the lien, or so far perfect it as to

Beirne et al. v. Mower.

cut out Mower's right. The case of Rupert v. Dantzler, 12 S. & M. 697, is decisive on this point. There it was decided that "the sale must take place within the time allotted to be covered by the lien." That case, like this, was one in which the levy had been made before the lien expired, but the sale did not take place until afterwards, and the younger judgment creditor, whose lien had not expired, was preferred. The New York cases hold precisely the same doctrine on the statute of that state which limits the lien of judgments on real estate to two years. Little v. Harvey, 9 Wend. 157; Tufts v. Tufts, 18 Ib. 621; Graff v. Kip, 1 Edw. Ch. R. 619. The only conceivable ground for the application of a different rule of construction is, that in this case the subject of controversy is personal property; in New York, the limitation applied to real property. Our statute makes a judgment a lien on both. A lien is a mere right to have a judgment satisfied out of the property of the defendant; it confers no right of property, but the right to levy an execution, to the exclusion of junior adverse claimants. As the law confers a general lien by the judgment on both real and personal property, the liens must be enforced in the same way, and of course within the same time, for the sheriff does not acquire such a right, by the seizure of personal property, as to constitute a consummation of the lien. The doctrine, that the sheriff acquires a right by the seizure of personal property, and in virtue of that right alone may sell it, can have no such application in this case as to overreach the right of the claimant. The law creates the lien, but it cannot be consummated by sale in virtue of the mere lien; the aid of an execution is necessary. The law, in effect, declares that it will hold the property subject to execution for a certain length of time. Did the sheriff, in this instance, claim the property under the lien, or under the execution? He could not under the former; it had expired. If he claimed a right of property under the execution, then of course his right was subordinate to older rights. The sheriff's right of property cannot be so ingrafted on the lien as to extend it beyond the time prescribed in the statute, for that would produce a different rule for the two kinds of property. It would

Prewett v. Dobbs.

require that, as to real property, the sale should be made within. two years, but as to personal property, that the levy should be made within two years. If his right of property, by virtue of the levy, is relied on, its origin cannot be extended beyond the levy. The instructions of the court, which were excepted to, are in accordance with this view, and the judgment must therefore be affirmed.

JOHN W. PRewett vs. NEWNAN H. DOBBS.

On the 17th of February, A. D. 1845, M. executed a bill of sale of a slave to P., and received therefor from P. $150 in money and P.'s note for $200, due in two years thereafter; M. retaining possession of the slave, and agreeing verbally with P., that if M. should, by the maturity of the note made by P., pay the purchase-money, $350, to P., and should pay hire for the slave at the rate af $37.50 per annum, the contract of sale should be rescinded; the next day P. gave M. a written memorandum to a similar effect; the slave, at the time, was worth $550, and her annual hire $85 per annum Held, in view of these facts, the contract between P. and M. was a mortgage, and not a conditional sale.

The statute (Hutch. Code, 606, § 5,) regulating the liens of mortgages and deeds of trust, and the period of their taking effect, does not apply to mortgages executed out of this state on property out of the state; and therefore where such property, so mortgaged abroad, is afterwards brought into this state, the mortgagee does not lose his right by omitting to record his mortgage in this state, even as against bona fide purchasers for value, without notice of such mortgage.

While personal property under mortgage is not subject to seizure and sale under execution, or ordinary attachments at law, a different rule prevails as to distraints for rent, under the statute (Hutch. Code, 810, § 10,) which pro vides, that "any limited property or interest" in the goods and chattels attached, may be distrained and sold for such interest as the tenant may have.

In error from the circuit court of Monroe county; Hon. F. M. Rogers, judge.

John W. Prewett instituted an action of replevin against