Street v. Smith

• Decision Date: 13 February 1905
• Citation: 85 Miss. 359,37 So. 837
• Court: Mississippi Supreme Court
• Parties: HORACE STREET v. BENJAMIN L. SMITH

37 So. 837

85 Miss. 359

HORACE STREET v. BENJAMIN L. SMITH

Supreme Court of Mississippi

February 13, 1905

FROM the chancery court of Clay county, HON. WILEY H. CLIFTON Special Chancellor.

Smith the appellee, was complainant, and Street, the appellant defendant in the court below. From a decree overruling defendant's demurrer to complainant's bill defendant Street, appealed to the supreme court.

The bill alleges that on January 6, 1892, J. H. L. Jerdine obtained a judgment in the circuit court of Clay county against Mrs. Lucy A. Munger for $ 1,432, which was regularly enrolled in the office of the circuit clerk of said county on the 14th day of January, 1892; that in 1899 complainant, for a valuable consideration, purchased from Jerdine said judgment, and it was regularly assigned and transferred to him; that before the judgment was barred by the statute of limitations an action was instituted by complainant against Mrs. Munger on said judgment, and it was revived against her in the name of complainant, and the new judgment was regularly enrolled in the office of the clerk of the circuit court of Clay county; that Mrs. Munger came into ownership of certain land described in the bill for life; that she afterwards conveyed portions of this land to the other defendants, and on the 4th day of February, 1901, gave a deed of trust on a part of the land to appellant, Horace Street to secure an indebtedness to him which was unsatisfied. The bill prays for a cancellation of these several conveyances as clouds upon the title and as obstructions to the enforcement of complainant's judgment lien, and for the sale of the land under the judgment lien. Horace Street filed a demurrer to the bill, assigning the following cause of demurrer: It is shown by said bill that at the time of the execution of the deed of trust, mentioned in the bill as having been executed to said Horace Street, the judgment mentioned in the bill against said Lucy A. Munger in favor of J. H. L. Jerdine, which is of record, appeared on the face of the record to have been barred by the statute of limitations more than six months prior to the execution of the said trust deed, and it does not appear by any entry upon the margin of the record of said judgment lien that said judgment had been extended or renewed, or a new lien noting the fact of the renewal had been filed for record, within six months after Jerdine's judgment appeared of record to be barred; that prior to the enrollment of Smith's judgment Mrs. Munger had executed the deed of trust to Horace Street, and the judgment therefore ceased to be a lien as against said Street. The demurrer was overruled.

Affirmed and remanded.

J. J. McClellan, for appellant.

Under § 2462, Code 1892, the Jerdine judgment ceased to be a lien against subsequent purchasers or encumbrancers for a valuable consideration without notice in six months after it was shown on the record to be barred, as there was no memorandum on the record to show that it had been renewed or extended, neither had a new lien noting the fact of the renewal or extension of said judgment been duly filed for record within such time.

Why should not this section apply to judgment liens? Sec. 756, Code 1892, provides for the enrollment of judgments. Sec. 757 provides that a judgment so enrolled shall be a lien from the rendition of such judgment. The same section provides that judgments shall not be a lien unless so enrolled.

The section above referred to, sec. 2462, provides how renewal liens shall be recorded, in order to preserve and keep alive the lien from the time of the creation of the first lien. The sections above referred to afford an opportunity for parties holding judgments to have them enrolled and thereby create a lien in their favor on the property of the person against whom the judgments are held. They are also intended to operate as notice to all parties who deal with such persons of the judgment liens on the property of such persons. The legislature saw proper to deal with the matter of how liens should be created and limited, and there is no good reason why sec. 2462 should not apply to judgment liens, but there is every reason why it should apply. It is clear that it was the purpose of the legislature to deal with all liens required to be recorded affecting the title to property or liens against property. Judgment liens certainly fall within this purview. If such was the purpose of the legislature, it is manifest that the enrollment of a renewal judgment must show on the face of the enrolled record the connection of the first judgment and the renewal judgment.

Gilleylen & Leftwich, for appellee.

Appellant relies in his brief on § 2462, Code 1892, as amended by ch. 98, Laws 1896. But this section of the code cannot properly be construed, save in connection with secs. 660, 756, 757, and 2750 of the same code. In fact, the whole body of our law must be looked to, and is looked to, in the construction of any statute. This requirement is not a hardship. Klaus v. Moore, 777 Miss. 701.

Noting "the fact of a renewal or extension of a lien" on the margin of the record thereof, as provided by the statute was never intended to apply to judgments in reason and common sense. That provision was clearly intended to apply to deeds of trust, mortgages, mechanics' liens, and such like, contracts renewable by contracts and acts of the parties without the intervention of a court. A deed of trust can be kept alive by waiving the statute of limitation on the back of the note it secures in writing; and so on with other contractual liens. It was such liens the legislature would have the renewal of noted on the margin of the record. Judgment liens being only renewable by suit, no marginal entry was needed or...