Nessler v. Neher

• Decision Date: 29 April 1885
• Citation: Nessler v. Neher, 23 N.W. 345 (Neb. 1885)
• Parties: NESSLER v. NEHER.
• Court: Nebraska Supreme Court

23 N.W. 345

NESSLER v. NEHER.

Supreme Court of Nebraska

April 29, 1885

Appeal from Saline county.

Brown & Ryan Bros., for appellants.

Hastings & McGintie, M. B. C. True, and Abbott & Abbott, for appellees.

OPINION

COBB C. J.

There are but two questions presented by the record in this case which it is deemed necessary to examine:

1. Did the judgment of Joseph Rosenfield and Meyer Rosenfield v M. Chada, and Schnadig, Foreman and Company v. M Chada, constitute liens upon the lot in question, under the facts in the case as set out in the pleadings and bill of exceptions? In the case of Rosenfield v. Chada, 10 Neb. 421, S. C. 6 N.W. 630, which case involved a part of the present case, the court, in the opinion by Judge LAKE, say: "The defendant’s (Chada’s) interest in the lot was derived through a certain agreement for sale, executed by Samuel Long, the then owner thereof. The terms of said agreement are not given, consequently we have no means of knowledge whether this ‘interest’ is of a legal or merely equitable nature; but even conceding it to be the latter, still, as it is coupled with an absolute possession by the defendant, an ordinary execution is ample to reach it." It seems to me to naturally follow, as the corrollary of the above, that if a legal or equitable interest can be taken on an execution by its own force, without the aid of a court of equity, then the judgment upon which such execution can be issued, or purchased out, must be a lien on such interest. And such must be the view taken of the matter by the courts of Pennsylvania, where, according to Freeman, (Freem. Judgm. § 348,) "on account of a want of a court of chancery, the courts were, from necessity, obliged to treat all judgments as having an immediate operation upon equitable as upon legal estates. Therefore, a party who, in that state, purchases lands, paying a portion of the purchase money and taking possession, but who has not received any conveyance, has an estate to which a judgment lien attaches." The same writer adds: "The general tendency of the American statutes creating and regulating judgment liens, is to make such liens a charge upon whatever estate the judgment debtor may have, irrespective of the question whether his title is legal or equitable, perfect or inchoate."

It would be idle to attempt to reconcile the conflicting opinions on this subject; either those founded upon the statutes or independent of them. But in a case like the one at bar,...