Coad v. Cowhick

• Decision Date: 10 January 1901
• Citation: 9 Wyo. 316,63 P. 584
• Parties: COAD v. COWHICK, ET AL
• Court: Wyoming Supreme Court

63 P. 584

9 Wyo. 316

COAD v. COWHICK, ET AL

Supreme Court of Wyoming

January 10, 1901

Rehearing denied October 10, 1901.

ON reserved questions from the District Court, Laramie County HON. RICHARD H. SCOTT, Judge.

In the order reserving the question, the facts are stated substantially as follows: The plaintiff, Mark M. Coad, on the 14th day of September, 1888, in the district court for Laramie county, recovered a judgment against Oscar F. Cowhick upon which a balance remained unpaid. June 18th, 1891, one John Y. Cowhick died intestate at the said county of Laramie leaving as one of his heirs at law the said judgment defendant. Said intestate died seized of the real estate in controversy, and said real estate descended to the said judgment debtor as heir aforesaid as a part of his share of the estate of said decedent. August 29, 1891, the plaintiff procured execution to be duly issued upon the said judgment and caused the same to be levied upon the said real estate on the same day; and thereafter, upon due advertisement, caused the interest of the judgment defendant to be sold, and the plaintiff became the purchaser, and a sheriff's deed thereto was duly executed conveying the said real estate to the plaintiff, under said execution. The sale had been duly confirmed. After the death of the said John Y. Cowhick, and before the levy of the execution, viz: August 15, 1891, the said judgment defendant executed and delivered to the defendant, Marshall Field & Co., a deed purporting to convey all the right, title, and interest of the said judgment defendant, as one of the heirs at law of the said decedent, in the estate of the said decedent. Said deed was recorded on the 15th day of September, 1891.

The question reserved was as follows: Upon the facts so raised, is a judgment, duly rendered in the district court within and for Laramie County, Wyoming, a lien upon after-acquired real estate of the judgment debtor in said Laramie County, as against a purchaser from said judgment defendant who acquired his deed before any execution is levied under said judgment: the judgment at all times involved being in full force and effect?

Burke & Fowler, and John W. Lacey, for plaintiff.

The decisions cited from Ohio do not amount to a construction of our statute, for the reason that the first decision was based not upon the statute, which was subsequently enacted, but upon a misconception of the common law, and of the statute of Westminster 2, and the later decision was based upon the doctrine of stare decisis.

In this State we have adopted the common law of England as modified by judicial decisions and by declaratory or remedial acts, or statutes in aid of or to supply the defects of the common law, prior to the fourth year of James the First. The statute of Westminster 2 is therefore adopted here, and the statute of the State in relation to the lien of a judgment must be construed with that in view. Under the statute of Westminster 2 a judgment became a lien upon after-acquired property. (Stow v. Tifft, 15 Johns., 457; Handley v. Sydenstick, 4 W. Va., 605; 4 Kent's Com., p. 435; Greenway v. Marshall, 3 Humph., 177; Relfe v. McComb, 2 Head., 558; 3 Blackstone's Com., 418; 2 Cruise, 73; Ridge v. Prather, 1 Blackf., 401; 3 Preston on Abstracts, 350; Michaels v. Boyd, 1 Ind., 259; Wales v. Bogue, 31 Ill. 464; Root v. Curtis, 38 id., 192; 20 id., 57; 28 id., 376; Steele v. Taylor, 1 Minn., 210; Banning v. Edes, 6 id., 402; Trustees v. Watson, 13 Ark. 74; Colt v. Dubois, 7 Neb., 391; Lisle v. Cheney, 36 Kan. 578; Cowarden v. Anderson, 78 Va. 90; Straus v. Bodeker (Va.), 10 S. E., 570; Duel v. Potter, 51 Neb. 241; Moore v. Jordan, 117 N. C., 86; Babcock v. Jones, 15 Kan. 296; Pomeroy's Eq., 725; Freeman Judg., Sec. 339; id., 367; 1 Black Judg., Sec. 460; Cayce v. Stovall, 50 Miss. 396; Barron v. Thompson, 54 Tex. 235; Thulemyer v. Jones, 37 id., 560; Kollock v. Jackson, 5 Ga., 153; Ralston v. Field, 32 id., 453; McClung v. Beirne (Va.), 10 Leigh, 394; Dickson v. Hynes, 38 La. Ann., 684; Gallagher v. Hebrew Cong., 35 id., 829.)

The statutes of many of the States are practically identical with ours, and from the authorities cited, it will be seen that almost universally, with such statutes added to the statute of Westminster, the lien is held to attach to after-acquired lands.

Clark & Breckons, for defendants.

Under the common law, pure and simple, the judgment was not a lien upon lands of the debtor, nor could his lands be sold to satisfy the judgment. Whatever right the creditor had to take the land of his debtor was given by statute. In the American States the lien of the judgment upon lands was, in most instances, established by virtue of express legislative enactment. In such States as did not so recognize it, it either did not exist at all, or existed only by virtue of some other statute or rule of law adopting the English statutes. (Black on Judg., Sec. 397-399.) In this State the question was not left to the common law, nor to statutes in aid of the common law. Perhaps in the absence of legislative enactment, the statute of Westminster would have been in force. But the first Legislature of the Territory enacted a statute in relation to judgment liens, choosing not to rely upon the adoption of the common law and English statutes. Whatever right, therefore, there is to a lien by judgment, must be determined by reference to our statute.

It is clear that the statute does not unmistakably bind after-acquired lands. What, then, is the construction to be placed upon the statute? Our code and the statute in question were taken from the State of Ohio, and the well-known rule of construction in case of borrowed statutes becomes important. In Ohio, it is held that the judgment lien does not reach after-acquired lands. (Roads v. Symmes, 1 O., 314; Stiles v. Murphy, 4 id., 91; Riddle v. Bryan, 5 id., 51; Smith v. Hoge, 40 N. E., 406.) It is evident that the Legislature in all matters relating to judgments carefully followed the Ohio code. The decisions, therefore, of the courts of Ohio are controlling upon our courts. The decisions of other States are not important, as they can be nothing more than constructions of their own statutes. In Pennsylvania it is held that the ruling of the English courts is wrong. (Calhoun v. Snider, 6 Binn., 135; Richter v. Selin, 8 S. & R., 425; Rosse's App., 166 Pa. St., 82; Rundall v. Ettwein, 2 Yates, 23; Packer's App., 6 id., 277; Leas v. Hopkins, 7 id., 492; Walter's App., 35 id., 523.) In Iowa the decisions of Ohio and Pennsylvania were followed. (Harrington v. Sharp, 1 Greene, 131.)

CORN, JUSTICE. POTTER, C. J., and KNIGHT, J., concur.

OPINION

CORN, JUSTICE.

The sole question submitted in this case is whether, in this state, a judgment of the District Court is a lien upon after-acquired lands. Our statute upon the subject is as follows: Sec. 3828. "Lands and tenements, including vested interests therein, and permanent leasehold estates, renewable forever, and goods and chattels, not exempt by law, shall be subject to the payment of debts, and shall be liable to be taken on execution, and sold as hereinafter provided."

Sec. 3829. "Such lands and tenements, within the county where the judgment is entered, shall be bound for the satisfaction thereof from the first day of the term at which judgment is rendered; but judgments by confession, and judgment rendered at the same term at which the action is commenced, shall bind such lands only from the day on which such judgments are rendered; and all other lands, as well as goods and chattels of the debtor, shall be bound from the time they are seized in execution."

At common law, except for debts due the king, the lands of the debtor were not liable to the satisfaction of a judgment against him, and consequently no lien thereon was acquired by a judgment. But by the statute (West M. 2, 13 Edw. Ch. 1) the judgment creditor was given his election to sue out a writ of fi. fa. against the goods and chattels of the defendant, or else a writ commanding the sheriff to deliver to him all the chattels of the defendant (except oxen and beasts of the plow) and a moiety of his lands until the debt should be levied by a reasonable price and extent. When the creditor chose the latter alternative, his election was entered on the roll, and hence the writ was denominated an elegit. Hutcheson v. Grubbs, 80 Va. 251. While this statute did not in direct terms create the lien, courts so construed it as to infer a lien from the power to take the lands in execution. Scriba v. Deanes, 1 Brockenbrough, 170. And this lien has been held by the English courts and by the almost unanimous opinion of the courts of this country, to extend to the after-acquired lands of the debtor. Most of the States have enacted statutes declaring the lien, and almost without exception, and without regard to whether such statute in terms extended the lien to after-acquired lands, they have held that such lands were bound by the judgment from the time of their acquisition by the debtor. Freeman on Judgments, 367. So far as I can find, the only two exceptions are Pennsylvania and Ohio. There was also a similar holding in Iowa. Harrington v. Sharp, 1 Greene 131. But the rule laid down in that case was subsequently changed by an amendment to the statute expressly providing that judgments should be a lien upon after-acquired lands, thus bringing it into line with the mass of opinion in this country. Ware v. Delahaye, 95 Iowa 667, 64 N.W. 640. The Mississippi court is also cited as adopting the same construction. But an examination of the cases shows that that court simply rejected the contention that lands subsequently acquired were bound from the date of the judgment, and held that "the lien attached on...