Decatur Charcoal Chemical Works v. Moses

• Decision Date: 28 April 1890
• Parties: DECATUR CHARCOAL CHEMICAL WORKS v. MOSES.
• Court: Alabama Supreme Court

7 So. 637

89 Ala. 538

DECATUR CHARCOAL CHEMICAL WORKS v. MOSES.

Supreme Court of Alabama

April 28, 1890

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD Judge.

Marks & Massie, for appellant.

Arrington & Graham, for appellee.

STONE C.J.

The question in this case is, which of two executions had the paramount lien on certain goods and chattels, the property of the Montgomery Furnace & Chemical Company, a corporation said corporation and chattels having their situs and place of business in Montgomery county, Ala.? The Decatur Charcoal Chemical Works recovered a judgment in the circuit court of Montgomery county against the Montgomery Furnace & Chemical Company on June 18, 1888. At the request of the president of the Montgomery Furnace & Chemical Company, the attorney for the Decatur Charcoal Chemical Works instructed the clerk not to issue execution on said judgment until further orders. On the day the execution was stayed, June 19, 1888, the attorney for plaintiff obtained "a certified transcript of said judgment," and on that day had it "duly recorded in the probate court of Montgomery county, Ala., in full compliance with the law of this state, approved on February 28, 1887, entitled 'An act to provide for the registration and lien of judgments and decrees for the payment of money."' After June 19, 1888, but during the same term of the court, the Montgomery Iron-Works, a corporation, recovered a judgment against the Montgomery Furnace & Chemical Company, and sued out execution, which was levied upon the said chattels of the Montgomery Furnace & Chemical Company. Before the sale under this levy an execution was issued on the said judgment in favor of the Decatur Charcoal Chemical Works, which was also levied by the sheriff on said chattels. The chattels or goods were advertised and sold under both executions. The proceeds of the sale were less than the amount of the two executions. The judgment in favor of the Montgomery Iron-Works had, in the meantime, become the property of H. C. Moses by transfer. The sheriff, having in his hands the money, proceeds of the sale of said goods and chattels, and each execution creditor claiming the paramount lien, reported the facts to the court from which the executions issued, and prayed the court's instructions as to the proper disbursement of the money. The court decided that Moses, transferee of the judgment recovered by the Montgomery Iron-Works, had the paramount lien, and was entitled to be first paid. The present appeal is from that judgment.

Under the provisions of the statute (Sess. Acts 1886-87, p. 99; Code 1886, p. 635, note) it was declared "that the plaintiff or owner of any judgment or decree rendered by any court of record for the payment of money may file in the office of the judge of probate of any county in this state a certificate of the clerk or register of the court by which such judgment or decree was rendered, showing the court which rendered the same, the amount and date thereof, and the amount of costs, the names of the parties, and the names of the plaintiff's attorney, which certificate shall be registered by the judge of probate of such county in a book to be kept by him for that purpose, which register shall also show the date of filing, and the name of the owner of such judgment or decree. And every judgment or decree so filed and registered shall be a lien upon all the property of the defendant in such county which is subject to levy and sale under execution; and such lien shall continue for ten years from the date of such registration." Before the enactment of this statute, judgments were not liens under our laws, either on real or personal property. The lien attached only when execution was placed in the hands of the sheriff, and it extended only to property in the county in which the sheriff held execution; and if, after acquiring a lien by placing execution in the hands of the sheriff, a term of six months was permitted to elapse during which the sheriff had no execution, the lien would be lost. Code 1886, § 2894; 3 Brick. Dig. p. 451, § 36 et seq. In the absence of the statute approved February 28, 1887, there can be no question that the stay of execution ordered and granted in the case of the Decatur Charcoal Chemical Works would have had the effect of giving to the later judgment and execution a paramount lien on the goods, and on the money for which they were sold. This, on the principle that a party who thus wrests the process of the court from its legitimate purpose and office is conclusively presumed to intend thereby to favor and aid the judgment debtor; and such act is a fraud on a junior execution creditor which gives the latter a paramount lien. Patton v. Hayter, 15 Ala. 18; Bank v. Broughton, Id. 127; Albertson v. Goldsby, 28 Ala. 711; Freem. Ex'ns, § 206. What was the purpose of that statute, and has it changed the rule as to voluntary stay of execution by the plaintiff? There was a time when, under our statutes, judgments rendered by courts of record fixed a lien on the real estate owned by the defendant, if situated anywhere in the state of Alabama; and that lien did not depend for its creation or vitality on the issue of an execution, or the placing of it in the hands of the sheriff. It was a judgment lien. 1 Brick. Dig. 899. This principle had exceptions; suffering the judgment to become dormant being one of them. Another exception was that if the plaintiff in such judgment stayed execution, this act of his was constructively fraudulent as against a junior judgment creditor, and subordinated his lien to that of the latter. Patton v. Hayter, 15 Ala. 18. This continued to be the law, and this its interpretation, as affecting judgment liens on real estate, until the statute was changed by the adoption of the Code of 1852, January 17, 1853. Since that time the rule has prevailed as to both species of property which theretofore prevailed in reference to personalty; that is, there was no lien until...