Bank of Missouri v. Wells

• Decision Date: 31 January 1849
• Citation: 12 Mo. 361
• Parties: THE BANK OF MISSOURI v. WELLS & BATES.
• Court: Missouri Supreme Court

12 Mo. 361

THE BANK OF MISSOURI

v.WELLS & BATES.

Supreme Court of Missouri.

January Term, 1849.

ERROR TO MARION CIRCUIT COURT.

GLOVER & CAMPBELL, for Plaintiff.

1st. The lien of a judgment without revivor expires by the express proviso of the statute at the end of three years. See Rev. Code 1835, p. 339. The lien of the judgment is a right created by the statute, and cannot be extended further than the statute goes. 9 Wend. 158; 5 Cowen. 294; 18 Wend. 622. In New York it will be seen by the authorities quoted that the provisions of the New York statute except from 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 New York it appears the judgment does not cease to be a lien against the judgment debtors, the lien ceases only as to the third person; by our law the lien ceases as to the defendant in judgment. 7 Cowen, 540. The Circuit Court regarded the case in 1 Cowen, 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.

2nd. 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. Rev. Code 1835, § § 6, 7, 10; 1 Gilman, 644; 2 Tuck. Com. 375-6; 2 Am. Ch. Dig. p. 10. No. 49.

3rd. The evidence introduced by the plaintiff showed a right of recovery in the plaintiff against the defendants if the foregoing propositions are correct. Here the plaintiff purchased all the interest of Wm. Wright, but Wm. Wright has transferred that interest in defiance of law to Bates, and Bates has so transferred it to Wells; under the circumstances it seems to us the Circuit Court ought to have held the possession of Bates and Wells the possession of Wright. 1 Wendell, 317; 6 Johns. 33, 45; 10 Johns. 291-2; 18 Johns. 7, 92. The doctrine of this court has been affirmed by this court. 5 Mo. R. 43.

4th. The lien of the execution is a different thing from the lien of judgment, commences only when the fieri facias comes to the hands of the officer, (Rev. Code, 1835, § 18, p. 256) exists whether the judgment has a lien or not, and may be determined on principles peculiar to itself. See Wise v. Darby, 9 Mo. R. 131; we know of no principle by which two liens existing contemporaneously can.

5th. The statute upon the subject of the lapse of term of court will not save the defendants' right. The plaintiff took his scire facias, and the same remedy was open to the defendants. He refused to resort to it. He knew the court had lapsed, and that it constituted no exception in the statute, but still refused. The hardship of which he complains is the result of his delay for two whole years to execute his lien, and his refusal to revive it under the statute. The judgment lien in this case is not embraced by the words of this statute. The Legislature has the power to make the process of the courts returnable to such courts as they choose, but whether the Legislature could extend this judgment is a graver question.

PRATTE & ANDERSON, for Defendants.

1st. The levy of the execution upon the land during the lien of the judgment, created a lien which gave precedence, and could not be lost by the lapse of a term of the court.

2nd. 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 were not sold nor execution returned, and sheriff dismissed from office, and afterwards the ex-sheriff sold the goods--courts say that the execution was an entirety, that it gave him authority to sell 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 be made on the execution that was levied, as by virtue of that levy it is sold, the writ of venditioni exponas merely going to sell what has been heretofore levied on. The Session acts of 1842-3, at page 54, say that no recognizance, suit, or other matter shall be dismissed, discontinued, or fail by reason of the alteration of the times of holding said courts. There was two terms of the court yet to elapse before 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 the property in the sheriff in contemplation of law. The...