Enslen v. Wheeler

• Citation: 98 Ala. 200,13 So. 473
• Parties: ENSLEN ET AL. v. WHEELER.
• Decision Date: 27 July 1893
• Court: Supreme Court of Alabama

13 So. 473

98 Ala. 200

ENSLEN ET AL. v. WHEELER.

Supreme Court of Alabama

July 27, 1893

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by Adelaide B. Wheeler, administratrix of the estate of Henry L. Wheeler, deceased, against Eugene F. Enslen, administrator of the estate of James Kendall, deceased, and others, heirs of Kendall, to enforce the lien of a judgment in favor of Henry L. Wheeler and against Kendall on certain land of which Kendall died seised. From a judgment for plaintiff defendants appeal. Affirmed.

The defendants, in their answer to the bill, among other things averred that no execution had issued on the Wheeler judgment for more than an entire term before the death of said Kendall; that no execution was in the hands of the sheriff at the time of the death of said Kendall; and prayed that said answer be taken as a cross bill, and that the court would order that said recorded judgment be canceled as a cloud upon the title to the real estate of which said James Kendall died seised. The court sustained a demurrer by plaintiff to the cross bill, and, upon the cause being submitted on pleadings and proof, decreed that plaintiff was entitled to the relief prayed for, and so ordered.

Mountjoy & Tomlinson, for appellants.

Webb &amp Tillman, for appellee.

COLEMAN J.

Wheeler as administratrix, filed this bill in the city court, sitting as a court of equity, to enforce a judgment lien upon certain lands particularly described in the bill, which belonged to the judgment debtor of respondent's intestate. The material facts are agreed upon, and the equity of the bill and complainant's right to relief involve a construction of the act of the legislature adopted February 28, 1887, to be found also at the bottom of page 635 of the Code. We believe the question raised by the bill is before this court for the first time. The complainant's intestate recovered a judgment in a court of law on the 25th day of October, 1884, against one Kendall, the respondent's intestate, which judgment was regularly filed and registered, during the lifetime of said Kendall, in the office of the probate judge, in accordance with the provisions of the act of February 28, 1887. Said Kendall died in September, 1889, and letters of administration were taken out on his estate in January, 1890. The judgment was filed for presentation as a claim against his estate in August, 1890. Executions had issued upon said judgment in the lifetime of Kendall, but they had not been issued regularly, and kept alive, and at the time of the death of Kendall there were no executions in the hands of the sheriff. The motion to dismiss the bill for want of equity and the demurrer thereto raise the questions to be decided.

It is contended that the bill is without equity,-First, because the lien given by the statute is not one of equitable jurisdiction; second, that by the death of Kendall, the judgment debtor, the judgment was abated, and the lien destroyed; and, third, that if respondent is mistaken in these propositions, then complainant has a plain and adequate remedy at law. The act reads as follows: "Section 1. Be it enacted by the general assembly of Alabama, 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 name 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. The registration of such judgment or decree shall be notice to all persons of the existence of such lien." "Sec. 3. Be it further enacted, that the laws relating to the entry of credits and satisfaction of mortgages shall apply to the entry of credits and satisfaction of the liens created by this act." Unmistakably, the purpose and effect of the act is to declare "that every judgment and 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," and the "registration is notice to all persons of the existence of such lien." Neither the original act nor the one amending it (Acts 1888-89, p. 60) provide a remedy for the enforcement of the lien. Section 2280 of the Code of 1886 reads as follows: "When a judgment has been rendered against a decedent before his death, no execution can issue thereon against his personal representative, except in the case provided for in section 2897, (3213;) nor can the judgment be revived against him except by suit on the judgment." Section 2897 reads as follows: "A writ of fieri facias, issued and received by the sheriff during the life of the defendant, may be levied after his death, or an alias issued and levied, if there has not been the lapse of an entire term, so as to destroy the lien originally created." Section 2894 is in the following language: "A writ of fieri facias is a lien, only within the county in which it is received by the officer authorized to execute it, on the lands and personal property of the defendant subject to levy and sale, from the time only that the writ is received by such officer; which lien continues as long as the writ is regularly issued and delivered to such officer, without the lapse of an entire term." It is under these sections of the Code, and the decisions of this court rendered upon the law as it was prior to the adoption of the Code of 1852, that respondents contend that there is no equity in the bill. These sections of the Code of 1886 were in force, and had been for many years, prior to the adoption of the act of February 28, 1887, and neither of these several sections of the Code are referred to in the act of 1887. Unless the later act is in conflict, these several sections of the Code continue in force.

Section 2280 of the Code, supra, has been construed by this court and it is held that, where a judgment has been recovered against a debtor in his lifetime, after his death the judgment is a mere cause of action against his personal representative, incapable of revivor otherwise than by suit at law in the ordinary manner. May v. Parham, 68 Ala. 253; Brown v. Newman, 66 Ala. 275; Powe v. McLeed, 76 Ala. 418. No execution can be levied after the death of the judgment debtor, except in the case provided for in section 2897, and that exception does not arise in the present case. After death, the lien of an execution provided in section 2894, supra, was incapable of enforcement in any court except in the case provided in section 2897, and in the manner therein provided. The lien of an execution, however, is not the lien given by the act of the legislature under consideration. Both liens may exist without interference the one with the other. Chemical Works v. Moses, 89 Ala. 538, 7 South. Rep. 637. It is contended that in this state, at a former period, judgments were liens from the date of their rendition, and such liens were incapable of enforcement after the death of the judgment debtor. Prior to the adoption of the Code of 1852 it was held that judgments and decrees of courts of record created liens upon land from...