Hobbs v. Simmonds

• Decision Date: 19 December 1891
• Citation: 61 Conn. 235,23 A. 962
• Court: Connecticut Supreme Court
• Parties: HOBBS v. SIMMONDS et al.

23 A. 962

61 Conn. 235

HOBBS

v. SIMMONDS et al.

Supreme Court of Errors of Connecticut.

Dec. 19, 1891.

Appeal from superior court, Fairfield county.

Suit by George E. Hobbs against George W. Simmonds and another to foreclose a judgment lien. A demurrer to the complaint was overruled, and the facts found and judgment entered for the plaintiff. Defendants appeal. Affirmed.

D. Davenport and W. H. O'Hara, for appellants.

D. F. Hollister, for appellee.

TORRANCE, J. On the 20th day of May, 1890, the plaintiff, Hohbs, before the superior court for Fairfield county, recovered judgment against the defendants, Simmonds and Merritt. On the 22d day of May, 1890, he caused a certificate of judgment lien, based upon the judgment, to be duly filed and recorded, claiming therein a lien upon certain real estate of Simmonds which had been attached in the suit in which the judgment had been rendered. Thereafter, on the same day, the plaintiff instituted against Simmonds and Merritt a suit to foreclose the judgment lien. To the complaint in that suit the defendants demurred, substantially on the ground that it appeared by the complaint itself that the land described therein "was not land which might have been levied upon under an execution on the judgment at the date of filing such lien." The court below overruled this demurrer, the defendants answered over, the case was tried upon its merits, and judgment rendered for the plaintiff. From that judgment the defendants bring this appeal, and the only error assigned is the action of the court below in overruling the demurrer. Section 3034 of the General Statutes, upon the construction of which the solution of the question raised by the demurrer more immediately depends, reads as follows: "Nothing in the three preceding sections contained shall be construed to authorize any such lien to hold and be valid as to any real estate, or any interest therein, which might not have been levied upon under an execution on the same judgment at the date of filing such lien." Whether the court below erred or not depends on the true meaning of this section. The plaintiff claims that this section relates to and answers the question, upon what real estate may a valid judgment lien be placed? The defendants contend that it relates to and answers a very different question, namely, upon what conditions may a valid judgment lien be placed upon land which may by law be subjected to such a lien? According to the claim of the plaintiff, the validity of the lien in the case at bar does not at all depend upon the question whether at the date thereof execution was or was not stayed, but upon the question whether at that date the real estate was so circumstanced that the law would or would not permit it to be taken on such execution, if one should then or thereafter be issued. According to the defendants' claim, the validity of the lien in the case at bar depends upon the question whether, at the date of the lieu, execution was or was not stayed. They concede that if, at that date, execution was not stayed, the lien is valid; but they claim that under section 1134 of the General Statutes execution was "imperatively" stayed for one week, and therefore that one of the necessary conditions precedent to the acquirement of a valid lien was wanting.

We think the construction put upon the section in question by the defendants is not the correct one. In our state the right to file a valid judgment lien is wholly a creature of the statute. The conditions precedent to the validity of such a lien are all prescribed by st...