Warren, Wallace & Co. v. Jones

• Decision Date: 09 March 1878
• Citation: 9 S.C. 288
• Parties: WARREN, WALLACE & CO. v. JONES.
• Court: South Carolina Supreme Court

9 S.C. 288

WARREN, WALLACE & CO. v. JONES.

Supreme Court of South Carolina.

March 9, 1878

An execution issued and lodged with the Sheriff prior to the adoption of the Code does not lose its lien upon personal property because of the provisions of the Code in reference to executions.

The Sections of the Code relating to executions apply only to executions issued after its adoption.

Statutes are never to be construed as intended to act retrospectively if such construction can possibly be avoided, and never when such construction would make them interfere with vested rights.

BEFORE NORTHROP, J., AT ABBEVILLE, SEPTEMBER, 1877.

This was an action by Warren, Wallace & Co. against Joshua Y Jones, as Sheriff of Abbeville County.

The case is fully stated in the opinion of the Court.

Gary , for appellant:

" When levied on personal property they [executions] shall be a lien on such property for the period of four months from the period of such levy." ***" And whenever renewed shall be subject to the rules herein provided." — Acts 1874-75, p. 872, § 15. " All statutory provisions inconsistent with the Code of Procedure are repealed." — § 471, Code.

" Writs of execution for the enforcement of judgments, as now used, are modified in conformity to this title." ** — § 306, Code.

" The remedy heretofore given by scire facias to obtain execution of a judgment is superseded by the provisions of the Code which give an action therefor." — Cameron vs. Young , 6 How. 372; Alden vs. Clark , 11 How. 209.

" Sections 283 and 284 [306 and 307 of our Code] of the amended Code of Procedure are applicable as well to judgments rendered before the Code took effect as to judgments rendered in actions brought under the Code." — The Catskill Bank vs. Sandford , 4 How. 100, 101.

Under the law as it stood before the Code went into effect an execution bound the personal property of the judgment debtor but from the time such writ was delivered to the Sheriff or other officer.— 7 Stat. 229.

" The distinction between the obligation of a contract and the remedy given by the Legislature for to enforce that obligation has been taken at the bar and exists in the nature of things. Without impairing the obligation of the contract the remedy may certainly be modified as the wisdom of the nation shall direct." — Sturges vs. Crowninshield , 4 Wheat.

" For undoubtedly a State may regulate at pleasure the modes of proceeding in its Courts in relation to past contracts as well as future. ** Regulations of this description have always been considered in every civilized community as properly belonging to the remedy, to be exercised or not by every sovereignty, according to its own views of policy and humanity. It must reside in every State to enable it to secure its citizens from unjust and harassing litigation and to protect them in those pursuits which are necessary to the existence and well-being of every community; and although a new remedy may be deemed less convenient than the old one, and may in some degree render the recovery of debts more tardy and difficult, yet it will not follow that the law is unconstitutional. Whatever belongs merely to the remedy may be altered according to the will of the State, provided the alteration does not impair the obligation of the contract." — Bronson vs. Kensie , 1 How. 311.

" A law which regulates the issuing of executions previously rendered affects the remedy merely and does not impair the obligation of the contract." — McLean, 35.

" It is clear that this Court has no right to pronounce an Act of the State Legislature void as contrary to the Constitution of the United States, from the mere fact that it divests antecedent vested rights of property. The Constitution of the United States does not prohibit the States from passing retrospective laws generally, but only ex post facto laws." — Watson vs. Mercer , 8 Pet. 88.

" The vested right must be in the nature of a contract in order to be brought within the protection thus afforded. The lien of a judgment is a mere right of preference as among purchasers and creditors. It is to be regarded as an incident of the remedy not in the contemplation of the contracting parties." — In re Kennedy , 2 S. C., 226.

" The judgment is not in itself a contract," ( Biddeson vs. Whytel , 3 Burr. 1545,) " and it cannot originate rights of the class protected under the United States Constitution." — In re Kennedy , 2 S. C., 226.

" The constitutional provision in relation to laws impairing the obligation of contracts was designed to operate only on some of the undertakings contained in the contract and was not intended to interfere with the internal regulations which a State may think proper to adopt for the government of its citizens." — Barlow vs. Gregory , 31 Conn. 264.

" The distinction between the obligation of a contract and the remedy for its enforcement is well established by the authorities; and while the Legislature has no right to impair the obligation of the contract, it has the undoubted right to change, modify or vary the nature and extent of the remedy, provided a substantial remedy is left the creditor. Under the United States Constitution the former power is denied to the several States, but the latter exists in full force." — Hoffman vs. Quincy , 4 Wall. 553; State vs. County Treasurer , 4 S. C., 520.

Noble & Noble , contra:

The execution binds personal property from the time the fi. fa. is delivered to the Sheriff, who shall endorse on it the day and year he received it.— 2 Stat. 528, § 16, A. D. 1712, (1672); 7 Stat. at Large, 229, § 37. Execution from a Court of general jurisdiction binds the goods of defendant from the day on which it was lodged in the Sheriff's office.— Robinson vs. Cooper , 1 Hill 287.

The judgment of Hodges, trustee , vs. John G. Boozer was docketed 10th January, 1867, and execution lodged in the Sheriff's office the same day.

The record of the case was burnt November, 1872, and was renewed and revived 3d July, 1875, and the judgment docketed, and the execution lodged in the Sheriff's office the same day .— See Acts of Assembly, 1872-3, p. 452, §§ 2 and 15.

Alterations in the law in regard to liens do not apply to judgments and executions prior to 1st March, 1870.— Rev. Stat., 644.

Code, § 316: " The lodgment of executions hereafter issued with the Sheriff shall not bind the personal property of the debtor," etc. It would have been unconstitutional to have violated the obligation of existing liens. Hodges vs. Boozer bound all the personal property of defendant from the day the fi. fa. was lodged with the Sheriff, on the 10th January, 1867, and renewed 3d July, 1875, and was at all times superior to appellant's agricultural lien, except as to the crop of 1876. The lien of the fi. fa. never ceased to bind defendant's goods at the time in his possession, or at any time afterwards in his possession, excepting only crops under agricultural liens.

The appellant should have taken the crops, cotton, corn, etc. His lien was due 1st November, 1876.

The charge of the Circuit Judge, therefore, was right, and the verdict of the jury was right, and must stand.

OPINION

MCIVER A. J.

This was an action brought by the plaintiffs to recover the net proceeds of the sale of two mules, two steers and two wagons, sold as the property of one J. G. Boozer by the defendant, as Sheriff, under an execution in favor of one G. W. Hodges, as trustee, against said Boozer. The plaintiffs claim that these articles were covered by a mortgage given to them by said Boozer, duly recorded and dated the 25th of March, 1876, given to secure a debt which became payable on the 1st of November, 1876, while the defendant insisted that they were first liable to the lien of the above mentioned execution. This execution was originally issued on a judgment recovered by G. W. Hodges, as trustee, against J. G. Boozer, in which Mrs. C. M. Wilson had an interest, and which was entered in the proper office on the 10th of January, 1867, on which day the original execution was lodged in the Sheriff's office. The record of this judgment having been destroyed by fire, " it was renewed and revived on the 3d of July, 1875, to the extent of Mrs. C. M. Wilson's interest" therein, and a new execution was issued thereon and lodged in the Sheriff's office that day, under which the property above mentioned was levied upon by the defendant on the 6th of January, 1877, and by him sold on the following sale day.

The Circuit Judge charged the jury that the execution creditor was entitled to the proceeds of the sale by reason of the priority of the lien of the execution to that of the mortgage. To this charge the plaintiffs excepted, and, the...