Musa v. Segelke & Kohlhaus Co.

• Decision Date: 06 April 1937
• Court: Wisconsin Supreme Court
• Parties: MUSA v. SEGELKE & KOHLHAUS CO.

224 Wis. 432

272 N.W. 657

MUSA

v.SEGELKE & KOHLHAUS CO.

Supreme Court of Wisconsin.

April 6, 1937.

Appeal from a judgment of the Circuit Court for Milwaukee County; Walter Schinz, Judge.

Affirmed.

Action brought by Julia Musa against Segelke & Kohlhaus Company to remove the cloud or lien upon the title of land by reason of a certain judgment, and to enjoin the seizure and sale of any interest in the land by virtue of an execution issued thereon. Upon the trial the court made findings of fact and conclusions of law, upon which it was adjudged that the premises are free and fully discharged from any cloud or lien by reason of the judgment, and that the defendants are enjoined from taking proceedings to satisfy the judgment by levy or sale upon the premises. Defendants appealed from a judgment entered accordingly.

Jos. F. Studnicka, of Milwaukee, for appellants.

Max E. Geline, of Milwaukee, for respondent.

FRITZ, Justice.

The undisputed facts are that on July 22, 1915, when the plaintiff, Julia Musa, was the wife of Adam Musa, the premises in question were conveyed to them, as husband and wife, and the survivor of them; that the defendant Segelke & Kohlhaus Company is the owner of an unpaid judgment for $805.87, obtained and docketed against Adam Musa on April 7, 1928, in the civil court of Milwaukee county; that he died in 1932; that no execution was issued on the judgment until, on May 22, 1936, the civil court ordered the issuance of such an execution against the right, title, and interest of Adam Musa in the premises, which are nonexempt real property located in Milwaukee county; and that the sheriff intended and was about to make levy and sale under the execution of the right, title, and interest of Adam Musa in the premises as of the date of the docketing of the judgment.

The defendants contend that although the title to the premises was held, from July 22, 1915, to the time of Adam Musa's death, in joint tenancy by him and the plaintiff, Julia Musa, who survived him, nevertheless, under the definite wording of section 272.14, Stats., it was intended that the lien rights given a judgment creditor by section 270.79, Stats., were not to be defeated by the death of the judgment debtor, even though his interest or estate was but that of a joint tenant; and that by section 272.14, Stats., such lien rights were only suspended to afford the debtor's heirs and personal representatives an opportunity to adjust his affairs.

So far as here material, it is provided in section 270.79, Stats. 1927, that, “Every such judgment, when so docketed, shall, for a period expiring ten years from the date of the rendition thereof, be a lien on the real property in the county where the same is docketed, except the homestead, *** of every person against whom such judgment shall be rendered and docketed.” And in section 272.14, Stats. 1935, that, “After the expiration of one year from the death of a judgment debtor execution may be issued against any property upon which the judgment is a lien and may be executed in the same manner and with the same effect as if he were still living.”

[1] Under these provisions the mere docketing of a judgment results at most in nothing more than a lien on the real property of the judgment debtor; and the manner in which, and the effect with which, the judgment may be executed is but the same “as if he were still living.” Such a lien, under a judgment “does not constitute or create an estate, interest, or right of property in the lands which may be bound for its satisfaction; it gives merely a right to levy on such lands to the exclusion of adverse interests subsequent to the judgment.” 34 C.J. p. 569, § 872 C. “In theory,” as is stated in 15 R.C.L. p. 797, “a judgment is but a security for a debt, and the lien of a judgment on lands does not constitute, in law, per se, a property or right in the land itself, and a plaintiff who obtains a judgment does not thereby acquire any interest or estate in the property.” Those propositions are well established. Lee v. Keech, 151 Md. 34, 133 A. 835, 46 A.L.R. 1488;Roy v. Abraham, 207 Ala. 400, 92 So. 792, 25 A.L.R. 101;Eaton v. Doub, 190 N.C. 14, 128 S.E. 494, 40 A.L.R. 273;Oklahoma State Bank v. Burnett, 65 Okl. 74, 162 P. 1124, 4 A.L.R. 430; 2 Freeman, Judgments, § 915; 1 Black, Judgments, § 400.

[2] On the other hand, it is likewise a well-established rule that a judgment becomes a lien upon such interest only as the judgment debtor actually had in the premises at the time when it was docketed or thereafter acquired therein, prior to its expiration. Stanhilber v. Graves, 97 Wis. 515, 73 N.W. 48. As is stated in 34 C.J. 591, § 903 I (1): “The lien of a judgment attaches to the precise interest or estate which the judgment debtor has actually and effectively in the land, and only to such interest; the lien cannot be made effectual to bind or to convey any greater or other estate than the debtor himself, in the...