Breed v. Gorham
| Decision Date | 20 November 1883 |
| Parties | ALLEN BREEDv.CHARLES T. GORHAM et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.
Mr. MORTON CULVER, for the appellant:
Execution must issue on the judgment within a year from the time it first actually attaches to the specific property. Execution must also issue within one year from rendition of the judgment. Eames v. German Turn Verein, 74 Ill. 54; Harris v. Cornell, 80 Id. 54; Hernandez v. Drake, 81 Id. 34; St. Joseph Manf. Co. v. Daggett, 84 Id. 556; Barron v. Thompson, 54 Texas, 235.
A judgment lien in the State of Illinois is purely statutory, and, under the terms of the statute of 1872, does not attach to after acquired property of the judgment debtor. Calhoun v. Snider, 6 Binn. (Pa.) 135; Richter v. Slin, 8 S. & R. 439.
The lien is discharged unless execution issue within one year from the time it first attached. Hernandez v. Drake, 81 Ill. 34.
Colby took his title to these premises, if at all, on May 1, 1881. Richter v. Slin, 8 S. & R. 440; Rappleye v. International Bank, 93 Ill. 402.
The lien attaches upon an equitable title. It did so attach on the equitable title of Colby, on that day. Rogers v. Brent, 5 Gilm. 573; Niantic Bank v. Dennis, 37 Ill. 381; Maghee v. Robinson, 98 Id. 466.
The lien of the judgment had attached before the second execution issued, and there was such negligence in pursuit of the lien by the second execution, as well as the first, as to cause that lien, if one existed, to become dormant as against an innocent purchaser. The law does not favor the transforming of judgment liens into mortgages. Bennett v. Gamble, 1 Texas, 124; Towns v. Harris, 13 Id. 507; Gilmore v. Davis, 84 Ill. 487; Garner v. Willis, Breese, 368; Ross v. Weber, 26 Ill. 221; Davidson v. Waldron, 31 Id. 121; Freeman on Executions, sec. 206.
The judgment in that court being dormant, execution could not properly issue thereon until it was revived by scire facias. Chase v. Frost, 60 Ill. 143.
The plaintiff in the case of Gorham against Colby was not entitled to an alias execution upon the showing made. Kellogg v. Buckler, 17 Ga. 190; Walls v. Smith, 19 Id. 11; Purdon v. Purdon, 2 Miles, (Pa.) 173; Taylor's Appeal, 1 Pa. St. 392.
Messrs. CRANE & ABBOTT, for the appellees:
The judgment became a lien for seven years if execution was issued thereon within one year from its date. Rev. Stat. chap. 77, sec. 1.
An actual delivery of execution to the sheriff is not necessary except when the lien depends upon such delivery. Merchants' Ins. Co. v. Schrœder, 104 Ill. 171; Burdick v. Green, 18 Johns. 14.
The delivery of an execution to the sheriff, and the date of delivery, may be proved by any competent evidence, and the sheriff's neglect to indorse the date of receiving a writ does not affect its validity, or plaintiff's rights thereon. Freeman on Executions, sec. 98; Hale's Appeal, 44 Pa. St. 439; Johnson v. McLane, 7 Blackf. 501; Hester v. Keith, 1 Allen, 316; Fletcher v. Pratt, 4 Vt. 182.
Leaving the writ at the sheriff's office is a delivery to him. Freeman on Executions, sec. 298.
The lien on personal property may be postponed to junior execution by the plaintiff instructing the officer not to levy. ( Gilmore v. Davis, 84 Ill. 487; Ross v. Weber, 26 Id. 224.) But mere omission to have a levy made is no waiver of the lien on real estate. That is good for seven years. Rogers v. Dickey, 1 Gilm. 644; McHany v. Schenk, 88 Ill. 357.
The judgment becoming a lien on any lands the debtor then owned, the same lien attached to property subsequently acquired. Freeman on Executions, p. 295, sec. 197; Lea v. Hopkins, 7 Pa. St. 492; Wales v. Bogue, 31 Ill. 464; Root v. Curtis, 38 Id. 192.
On the 10th day of October, 1879, appellee Charles T. Gorham recovered a judgment in the Superior Court of Cook county, against Gilbert A. Colby, for the sum of $5500. On the same day an execution was made out on the judgment by the clerk of the court. On the 1st day of October, 1881, Colby obtained a deed for the land involved in this litigation, which was recorded on December 8, following. Colby and one Gardner had some business transactions together, on the adjustment of which a bill in chancery was filed, and it is claimed that the land in question, under decree of court, was sold by a receiver, and purchased April 1, 1882, by Allen Breed, appellant. On the 8th day of September, 1882, Charles T. Gorham sued out an alias execution on his judgment, which was delivered to the sheriff, and a levy made on the property in controversy. The sheriff advertised the property for sale, and this bill was filed by Breed, the purchaser under the receiver's sale, to remove appellees' judgment lien as a cloud upon his title.
The question presented by this record is, whether Gorham, who obtained a judgment against Colby on the 10th day of October, 1879, acquired a lien on the lands in question which was superior to the subsequently acquired title which appellant, Breed, obtained in April, 1882, under the receiver's sale. Section 1, chapter 77, of the statute, provides Colby purchased this property October 1, 1881, and the judgment would become a lien upon it from the time he made the purchase, providing an execution was issued on the judgment within one year from the time it was rendered, otherwise no lien existed. On the day the judgment was rendered an execution was ordered, and in due form made out by the clerk of the court, but no trace of the execution could ever be found in the hands of the sheriff or any of his deputies, and...
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...York law).13 This basic principle applies, for instance, in the context of judgment liens on after-acquired real property. Breed v. Gorham , 108 Ill. 81, 85 (1883) (stating that a judgment gives rise to a lien on later-purchased property only "from the time [it is purchased]"); see also Gor......
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...day of May, 1884, said premises not having been redeemed from said sale, said Gorham received a sheriff's deed therefor. [See Breed v. Gorham, 108 Ill. 81.] Gorham subsequently moved that the receiver be discharged, and the possession of said premises be turned over to him, and an order was......
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