Messinger v. Eckenrode

• Decision Date: 22 January 1932
• Docket Number: 81.
• Citation: 158 A. 357,162 Md. 63
• Parties: MESSINGER v. ECKENRODE ET AL. [a1]
• Court: Maryland Court of Appeals

158 A. 357

162 Md. 63

MESSINGER v. ECKENRODE ET AL. ^[a1]

No. 81.

Court of Appeals of Maryland

January 22, 1932

Appeal from Circuit Court, Carroll County; F. Neal Parke, Judge.

Heard on alternative returns of the proceeds of sale under execution. From an order that the judgment of William F Eckenrode, use of Frank A. Eckenrode and another, his wife be paid in full before any money was applicable to the judgment of Susannah Messinger, she appeals.

Order affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, and SLOAN, JJ.

A Earle Shipley, of Westminster (Theodore F. Brown, of Westminster, on the brief), for appellant.

D Eugene Walsh, of Westminster, for appellees.

SLOAN J.

On April 6, 1923, William F. Eckenrode obtained a judgment by confession in the circuit court for Carroll county against William E. Heagy and Emma K. Heagy, his wife, and Edward Heagy and Edith Heagy, his wife, for $1,825.20, with interest, counsel fee, and costs. The principal was reduced on January 13, 1928, to $1,200, and on August 25, 1928, it was entered to the use of Frank A. Eckenrode and Alverda B. Eckenrode, his wife, the appellees.

On December 1, 1927, Susannah Messinger obtained a judgment by confession in the same court from J. Edward Heagy and Mary Edith Heagy for $4,000, with interest, costs, and counsel fees. The consideration for Mrs. Messinger's judgment was the conveyance by her to J. Edward Heagy and Mary Edith Heagy of several parcels of land. The deed was dated November 30, 1927, and it was recorded and the judgment entered simultaneously. The judgment represents the whole purchase money; no cash having been paid by the grantees.

Executions were issued on both judgments and the property sold by the sheriff for $2,600, and, a dispute having arisen between the appellant and appellees as to the amounts they were entitled to receive out of the proceeds, the sheriff made alternative returns to the court under the provisions of section 16, article 87, of the Code, and the parties submitted their contentions to the court, which decided in favor of the appellees, that is, that their judgment be paid in full before any money was applicable to the Messinger judgment, and from an order to that effect this appeal is taken.

The contention of the appellees is that their judgment, having been entered first and being effective from its date, is entitled to priority, while the appellant contends that the only real property the Heagys had was that which she conveyed to them, and that her judgment gave her an equitable lien for the purchase money, and that she is therefore entitled to the entire proceeds of sale, and, if that does not appeal to the court, then, the property coming under the judgments at the same time, the proceeds should be distributed pro rata to the judgments of the appellant and the appellees.

The answer to the appellants' first contention is that a judgment, being a general and not a specific lien, is enforceable, not only against the property sold by the creditor to the debtor, but against any other property within the jurisdiction of the court wherein the judgment is entered. The fact that the appellant chose to take a judgment in payment of the purchase money does not give her security an effect different from that of a judgment to any other person. The statutes and decisions in this state show the vendor the ways and means whereby unpaid purchase money may be secured, and to act otherwise is to take the risk which negligence of one's rights involves. By the Code, art. 66, § 4, it is provided that a purchase-money mortgage shall be superior to any previous judgment or decree for the payment of money. The same protection may also be afforded a third party who advances the purchase money in whole or in part. A vendor's lien for unpaid purchase money may also be reserved under the provision of article 66, § 31. In Ahern v. White, 39 Md. 409, it was held that a vendor had a lien superior to a prior judgment, if the mortgage taken by him in payment of the purchase money were recorded simultaneously with the deed, and the opinion distinguished the decision from the case of Rawlings v. Lowndes, 34 Md. 639, when dower was held to attach because there was an interval of two weeks between the recording of the deed and mortgage, and the case of Heuisler v. Nickum, 38 Md. 270, where the lien of a judgment was held to attach because the mortgage was recorded three days after the deed. In the Ahern Case the court was careful to distinguish the nature of a judgment and a lien reserved by a mortgage, and in commenting on the opinion in Knell v. Green Street Bldg. Ass'n, 34 Md. 67, said: "The Court in that case at some length considered the nature of a judgment and the rights it confers. It gives the judgment creditor no right to the land nor any estate in it, but simply a lien on it for payment of his debt; and such lien, being a general one, in no wise affects or impairs the vendor's lien for unpaid purchase money. He is neither in fact nor in law a bona fide purchaser, and must stand or fall by the real, and not by the apparent rights of the defendant in the judgment." (This decision antedated the Act of 1910, c. 216, Code, article 66, § 31, by which a vendor shall have a vendor's lien only when reserved by the deed.) Caltrider v. Caples, 160 Md. 392, 153 A. 445; Lee v. Keech, 151 Md. 34, 133 A. 835, 46 A. L. R. 1488. The nature of the judgment such as the appellant contends she has is well defined by the Supreme Court of Virginia in Kidwell v. Henderson, 150 Va. 829, 143 S.E. 336, 340, wherein it is said: "A judgment constitutes a general lien upon all the debtor's real estate. The character of the cause of action does not affect the nature of the lien, and therefore a judgment for purchase money has no lien superior to that of a judgment for any other debt or liability." The appellant having failed to avail herself of the security which the law provided, she cannot now retrace her steps and cure the situation. Neidig v. Whiteford, 29 Md. 178; Davis v. Harlow, 130 Md. 165, 100 A. 102; Morris v. Rasst, 145 Md. 22, 30, 31, 125 A. 499.

This then brings us to the other contention, and that is, whether the Eckenrode judgment, being first in point of time, has priority over the Messinger judgment, or, the land becoming subject to both judgments at the same time, should the proceeds of sale be apportioned between them.

"Judgments create liens only because the land is made liable by statute to be seized and sold on execution." Dyson v Simmons, 48 Md. 207, 215. At common law a creditor had no remedy against the lands of his debtor, and it was not until the statute of Edw. I. c. 18, that a debtor's land could be subjected to an execution, and after that act the creditor could secure a writ of elegit to the sheriff to deliver to him the chattels of the debtor and one-half of his land. "In one or two states (Maryland and Virginia), the lien has been regarded as existent by force of this statute, or of a colonial statute giving a right to an execution." 3 Tiffany on Real Property, 2775; Coombs v. Jordan, 3 Bl. 284, 297. The authority in this state for the execution of a judgment against the lands of a debtor is derived from the fourteenth and fifteenth sections of the statute of 29 Car. 2, cap. 3 (statute of frauds). The...