Imágenes de páginas
PDF
EPUB
[blocks in formation]

$35, payable first of April, 1850, and assigned by Brown to Swi

gart on the 9th August, 1850.

The defendant filed an off-set as follows:

"1850.

Reuben W. Brown, in acc't,

Edward Robinson,

Dr.

$27 50

4 00

16 00

To board from the 12th May, 1850, till the 10th
Sept. following, at $7 per month,
To washing the same time at $1 per month,
To keeping horse 16 weeks at $1 per week,
To amount assumed to pay Swigart,
To amount of order on S. J. Howell,

8 75

$52 25"

Judgment in favor of the plaintiff before the justice, and appeal to the circuit court of Johnson county, by defendant. The case was submitted to a jury at March term, 1851, (Hon. A. B. Greenwood, J., presiding,) and verdict and judgment in favor of appellee (Swigart) for the amount of the obligation suned on. Appellant (Robinson) moved for a new trial on the ground that the verdict was contrary to law and evidence, which was overruled, and he excepted, and took a bill of exceptions setting out the evidence.

On the trial, the appelle read in evidence the obligation sued on, and the assignment endorsed thereon, above described, and closed.

Neil, a witness for appellant, testified that on the 1st day of May, 1850, he was at the house of appellant, and continued to remain there until after the 10th of September, 1850. That about the 12th May, 1850, Reuben Brown came to the house of appellant, and continued there until about the 1st of September, 1850; that he, Brown, during that time ate at the table of appellant, and had his washing done there; that he had his horse there all the time he stayed; that said Brown claimed to be a relation of appellant's wife, and was acknowledged by appellant and his family to be a relation; that during said time said Brown was there, he

[blocks in formation]

went about with the other boys, and done but little, being unable to do work.

Witness had boarded out for many years, and thought that $7 00 per month for board, $1 per month for washing, and $1 per week for keeping and finding a horse, was not more than the same was worth-but knew nothing of the prices for the same in this State. He was an old acquaintance of appellant, and he stayed, ate, slept and had his washing done at the house of said appellant several months without charge.

Dorsey, a witness for appellant, testified that he had paid $7 50 per month in town for board, $1 per month for washing, and $1 per week for horse feed-that if he was to board in the country, and get good fare, he would be willing to pay $5 per • month therefor-that washing was worth $1 per month; horse feed $1 per week.

Seth J. Howell, witness for appellant, testified that on the 29th July, 1850, said Brown produced to him the following order: "July 29th, 1850.

Mr. S. J. Howell, Sir-Please let Mr. Reuben W. Brown have eight dollars and seventy-five cents, and charge the same to my account, and oblige yours, &c.

(Signed)

EDWARD ROBINSON."

Which witness paid to Brown in merchandize, and appellant afterwards settled for the same. That Brown, at the time the order was presented, said something to witness about appellant owing him, Brown.

Littleberry Robinson, witness for appellant, testified that he paid $100 per year, each, for keeping stage horses-which was all the evidence.

Appeal by Robinson to this court.

F. W. & P. TRAPNALL, for appellant, cited 4 Ark. 559. 3 sec., ch. 15, Dig. Drennen v. Brown, 5 Eng. 138.

Mr. Justice SCOTT delivered the opinion of the Court.

The only question of law in this case, was settled in the case

Trustees R. E. Bank vs. Watson & Hubbard.

[ JANUARY

of Smith v. Capers, at this term; and as we think this cause is within the rule of Drennen v. Brown, (5 Eng. R. 138,) we shall reverse the judgment, and remand the cause.

TRUSTEES R. E. BANK VS. WATSON & HUBBARD.

Under our statute, a judgment is a lien on a reversion in real estate.

A judgment becomes a lien on after acquired lands.

The lien of a judgment is so continued by execution and levy, when the execution comes to hand before the lien expires, but the sale is after the lien expires, that the sale relates to the date of the judgment. (a) ·

Appeal from Chancery side of Hempstead Circuit Court.

This was a bill to foreclose a mortgage filed by Biscoe and others, Trustees of the Real Estate Bank, against Watson and Hubbard, in the Hempstead circuit court.

The material facts are, that on the 25th day of January, 1837, Henry Cheatham conveyed certain lands to his father for the joint uses of his father and mother during their lives, and with reversion to himself. The father died in April, 1840, the mother in September 28th, 1845. On the 3d day of October, 1844, Henry Cheatham conveyed the same lands to the defendant, Watson, who, on the 7th of the same month mortgaged them to the Trustees of the Real Estate Bank, to secure a debt.

On the 11th of October, 1842, Roberts & King recovered against Watson and others, in the Hempstead Circuit Court, a judgment. On the 27th August, 1845, an alias fi. fa. issued on the judgment, which came to the hands of the sheriff on the 1st

NOTE (4) This point has since been overruled in a case that will appear in a subsequent portion of this volume.

REPORTER.

TERM, 1852.]

Trustees R. E. Bank vs. Watson & Hubbard.

September, 1845, and was levied on these lands September 15th, 1845, and sale at November term, 1845, and defendant Hubbard purchased them.

The court decreed that Hubbard's title was paramount to the mortgage, and dismissed the bill for want of equity. The Trustees appealed.

PIKE & CUMMINS, for the appellants, submitted the following questions: 1st, Is a judgment a lien on a reversion in real estate? 2d. Does a judgment become a lien on after acquired lands? 3d, Is the lien of a judgment so continued by execution and levy, when the execution comes to hand before the lien expires, but the sale is after the lien expires, that the sale relates to the date of the judgment, or does it only relate to the day when the execution came to hand?

They cited secs. 25 and 79, ch. 67, and sec. 36, ch. 93, Dig., to show that judgments are liens on all estates subject to execution, which are those of which "the defendant or any person for his use was SEIZED in law or equity," contending that at common law there was no seizen of a reversion. 1 Hill Abr. 47, 64. 1 Inst. 29, a &n 7. Robison v. Codman, 1 Sumn. 130. Eldridge v. Fornstat, 7 Mass. 253. Co. Litt. 22 b., 29 a. Smith v. Angell, Ld. Raym. 783. Cro. Eliz. 564. 3 Lev. 113. Moore 36, pl. 118. Com. R. 185. 2 Mod. 40. The value of an estate in reversion is contingent and uncertain; and the court should give a strict construction to the word scized in the statute.

The lien of a judgment commences on the day it is rendered and continues for three years only, unless revived by scire facias, (Dig. ch. 93): and where the lien of the judgment has been determined, the execution is a lien only from the time the writ is delivered to the proper officer. (Dig. ch. 67, scc. 27.) If the execution is sued and comes to hand before the lien expires, but the sale does not take place until afterwards, the title under the sale relates only to the day when the execution came to hand an not to the date of the judgment. Little v. Hawly, 9 Wend. 157. Graff v. Kip, 1 Edw. 620. Tuft's ad. v. Tufts, 18 Wend. 622. ·

Trustees R. E. Bank vs. Watson & Hubbard.

[ocr errors]

[ JANUARY Dickinson v. Gilliland, 1 Cow. 481. 5 Cow. 294. 5 Hill 228. Mower v. Kip, 6 Paige, 90.

WATKINS & CURRAN, contra, relied upon the statute making all "estate and interest in lands, tenements and hereditaments," liable to execution, as sufficiently broad to include reversions, (Dig. ch. 67, secs. 25, 79; ch. 93, sec. 36,) and cited Whitney v. Whitney, 14 Mass. 88. 1 Hill Abr. 424, scc. 3. Cook v. Hammond, 4 Mass. 488. Dunlap v. Gibbs, 4 Yerger 94. 2 Hill Abr. 554, scc. 2, and . Benton v. Smith and others, 13 Peters Rep. 464, as conclusive. That the lien of a judgment attaches on lands acquired by the debtor at any time posterior to the judgment. (Dig. ch. 67, sec. 25. Stone v. Stifft, 15 J. R. 464. Nicker v. Selim, 8 Serg. & R. 440. Ridley v. Garlett, 3 Har. & McHen. 449. Sug. on Vend. 340. Sandford v. Poosa, 12 J. R. 162. 4 Kent's Com. 435.

An execution levied upon land before the lien of the judgment expires, is a satisfaction of the judgment, (Fowler v. Anderson, 3 Eng. 388,) and of course constitutes a lien upon the land, at least until the return day of the writ; see the case of Miller v. Estill, 8 Yerger 452, which is precisely like the case at bar. The New York cases held a different doctrine, because a levy upon lands to which the lien of the judgment extends is unncessary, and has no legal efficacy. (14 Wend. 160. 5 Hill Rcp.)

Mr. Chief Justice JOHNSON delivered the opinion of the Court. The counsel for the appellants have submitted three distinct questions for our consideration and decision: First, is a judgment a lien on a reversion in real estate; 2d, does a judgment become a lien on after acquired lands; and 3d, is the lien of a judgment so continued by execution and levy, when the execution comes to hand before the lien expires, but the sale is after the lien expires, that the sale relates to the date of the judgment, or does it only relate to the day when the execution came to hand.

The 25th sec. of chap. 67, of the Digest, after enumerating a great variety and numerous kinds of property which by it were

« AnteriorContinuar »