Ludeman v. Hirth

• Decision Date: 01 June 1893
• Citation: 96 Mich. 17,55 N.W. 449
• Court: Michigan Supreme Court
• Parties: LUDEMAN et al. v. HIRTH.

55 N.W. 449

96 Mich. 17

LUDEMAN et al. v. HIRTH.

Supreme Court of Michigan

June 1, 1893

Error to circuit court, Wayne county; Henry N. Brevoort, Judge.

Ejectment by Fredericka Ludeman and others against Paul Hirth. From a judgment for defendant, plaintiffs appeal. Reversed.

George W. Radford and Edward A. Barnes, for appellants.

William Look and H. F. Chipman, for appellee.

GRANT J., (after stating the facts.)

The court erred in not permitting the plaintiffs to amend their declaration, and also, after refusing the amendment, in not permitting them to submit to a nonsuit.

The question raised upon the statute of limitations is not without difficulty. In this state a judgment creates no lien upon the property of the judgment debtor. No lien is created until the levy has been made, and notice thereof filed in the office of the register of deeds. Until 1889 no limitation was placed upon the existence of the lien by execution levy. A statute was then passed, enacting that all levies theretofore made should cease to be a lien at the expiration of five years from the time the act became a law and that all levies thereafter made should become and be void after the expiration of five years from the making thereof. 3 How. St. � 6173a. Actions upon judgments must be brought within 10 years after the entry of the judgment. How. St. � 8736. In the present case, proceedings for sale were commenced before the right to bring suit upon the judgment had expired by limitation, but the sale took place after it had expired. Execution cannot be issued, and levies made, after the right of action is barred. Jerome v. Williams, 13 Mich. 526; Parsons v Wayne Circuit Judge, 37 Mich. 287. The manifest reason on which these decisions are based is that when the judgment is dead no action can be taken to revive it. But they do not hold that during the life of the judgment any action authorized by law may not be taken to enforce it, although the sale cannot take place till after the right of action upon the judgment is gone. They therefore throw no light upon the present controversy. A lien upon real estate by virtue of a levy under execution is not lost by delay in proceeding to sale, where no fraudulent purpose is shown on the part of the execution creditor. Ward v. Bank, 46 Mich. 332, 9 N.W. 437. It follows that the lien remains in force until the statute of limitations has barred any right to proceed to foreclose...