Day v. Hartman

• Decision Date: 08 February 1897
• Court: Mississippi Supreme Court
• Parties: L. D. DAY ET AL. v. F. H. HARTMAN

21 So. 302

74 Miss. 489

L. D. DAY ET AL. v. F. H. HARTMAN

Supreme Court of Mississippi

February 8, 1897

October 1896

FROM the chancery court of Lincoln county HON. H. C. CONN Chancellor.

Hartman obtained a judgment in the circuit court against L. D. and B O. Day, which was duly enrolled. The record of the judgment and its enrollment being destroyed by fire, the appellee filed his bill in chancery setting up the facts and averring that defendant, Hardy, had sold the Days a tract of land valuable for its timber; that the Days had erected a steam sawmill on the land, and were converting the timber into lumber and shipping it out of the state; that they had no property subject to execution, except their interest in the land, the mill, lumber on hand, and a few oxen; that the land was subject to a purchase money lien for a small balance due Hardy; and that Daniel & Willoughby, defendants, claimed an interest, the character of which was unknown to complainant in the property, but such interest was averred to be subject to the judgment lien. The prayer was for an injunction restraining the removal of, and for a writ of sequestration for, the personal property and for a sale of the interest of the Days in the lands and personalty to satisfy the judgment against them. The bill proceeded upon the idea that because of the destruction of the records an execution on the judgment at law could not be obtained.

All the defendants, except Hardy, as to whom the suit was dismissed, demurred to the bill. The Days filed a general demurrer, and Daniel & Willoughby filed two demurrers--a general and a special one--raising the question of the jurisdiction of the court. The general demurrers were overruled, the special demurrer of Daniel & Willoughby was sustained as to the personal property, but overruled as to the real estate. Daniel & Willoughby disclaimed interest in the land. The Days answered, denying, substantially, all of the averments of the bill, and they claimed some of the property as exempt. During the progress of the cause some lumber which had been seized was sold by the sheriff as liable to immediate waste or decay, under § 516, code 1892, without an order of court to do so. The decree was in Hartman's favor, and the Days appealed.

Affirmed.

A. C. McNair, for appellants, L. D. and B. O. Day.

The demurrer of my clients should have been sustained to the bill. The complaint was not good on the idea of requiring an adjudication of the priority of liens, for several reasons: (1) It is not alleged or shown in the bill that the Hardys had a vendor's or other lien on the land. For aught that appears, the lien may have been waived. (2) Judgment liens are subordinate to all equities. They are general in their nature, while vendor's liens are specific. In equity, judgment liens are inferior to vendors' liens. Pomeroy's Eq. Jur., secs. 685, 720; Foute v. Fairman, 48 Miss. 536; Cayce v. Stovall, 50 Miss. 396.

The lien of a vendor, even when not reserved by any express language, is more than a mere equity. It is an equitable interest in rem, and entitled to preference over all subsequent equitable interests of no higher nature (Rice v. Rice, 2 Drew, 73), while a judgment lien is neither a jus in re nor a jus ad rem. It is not a property in the thing on which it exists, nor does it constitute a right of action for the thing. It is a mere charge on the thing, which can only be enforced by taking it into execution. Dozier v. Lewis, 27 Miss. 679.

The bill is not good as one for the removal of clouds on title:

1. Hartman is neither the legal or equitable owner of the land, but simply a judgment lien holder, without interest in the land.

2. The bill is not a creditor's bill in the sense that it seeks cancellation of fraudulent conveyances in aid of the exercise of jurisdiction on that line. If it appeared that the alleged cloud was cast on the title of the land by means of a fraudulent conveyance by the owner, to defeat his creditors, then it might, with some show of reason, be claimed that the bill is maintainable No such case is presented, however.

3. It is shown that the judgment lien is prior, in time, to the claims of Daniels and Willoughby, and that the alleged claims cannot, in the nature of things, be clouds on the title; nor is the character or nature of the claims or clouds shown. In truth, it is averred that the judgment lien is superior to defendants' claims.

The destruction of the judgment record did not impair its efficiency; neither was the authority of the clerk of the circuit court to issue the execution on the judgment, or that of the sheriff to enforce it, impaired, in the least, by the loss of the judgment record. It was the evidence that was destroyed, and not the judgment. Lord Coke says that a judgment is the "very voyce of law and right." It is the decision or sentence of the law, pronounced by a court, or other competent tribunal, upon the matter contained in the record. By the loss, the jurisdiction of the circuit court was not divested, nor was jurisdiction thereby conferred on the chancery court to enforce the judgment of the circuit court. Freeman on Executions, sec. 18, and authorities cited in the note. If the clerk of the circuit court refused to issue the execution, appellee had his remedy at law by mandamus or otherwise. The chancery court did not have jurisdiction to substitute the lost record. Freeman on Judgments, sec. 89a; Keen...