Zink v. James River Nat. Bank

• Decision Date: 08 April 1929
• Docket Number: 5510
• Citation: 224 N.W. 901,58 N.D. 1
• Court: North Dakota Supreme Court

224 N.W. 901

58 N.D. 1

THERESA ZINK, et al., Respondents, v. JAMES RIVER NATIONAL BANK, a National Banking Corporation, et al., and Salzer Lumber Company, a Corporation, Appellant

No. 5510

Supreme Court of North Dakota

April 8, 1929

From a judgment of the District Court of Foster County Jansonius, J., the defendant, Salzer Lumber Company appeals.

Reversed.

Conmy Soule, & Pierce, for appellant.

C.B. Craven, for respondents.

Christianson, J. Burke, Ch. J., and Birdzell, Nuessle, and Burr, JJ., concur.

OPINION

CHRISTIANSON

This is a controversy between judgment creditors of the plaintiff, Franz E. Zink, and involves the questions whether, and in what circumstances, a judgment becomes a lien on lands acquired by the owner subsequent to the rendition and docketing of a judgment against him. The material facts in the case are not in dispute. They are as follows: On November 27, 1920, a judgment was docketed in the office of the clerk of the district court of Foster county in favor of the plaintiff, The Foster County State Bank, and against said Franz E. Zink, in the sum of $ 786.65; on October 4, 1921, a judgment was docketed in the office of the clerk of the district court of Foster county in favor of the defendant, Salzer Lumber Company, and against said Franz E. Zink, in the sum of $ 1,163. On June 5, 1923, Peter P. Zink, Sr., the father of Franz E. Zink, died intestate leaving surviving him as his heirs at law the above named individual plaintiffs; and the said Franz E. Zink inherited an undivided two-fifteenths interest in all the real estate belonging to his father at the time of his death. Execution was issued on the judgment docketed in favor of the defendant, Salzer Lumber Company, and on December 22, 1924, all the right, title and interest of the said Franz E. Zink, in and to all the real estate belonging to Peter P. Zink, Sr., at the time of his death, was sold for the full amount due upon such judgment and the execution was thereupon returned fully satisfied. About a year later execution was issued upon the judgment docketed in favor of the plaintiff, The Foster County State Bank, and on December 21, 1925 all the right, title and interest of the plaintiff, Franz E. Zink, in and to the same real estate was sold for the full amount due upon such judgment, and the execution was returned fully satisfied.

On January 3, 1928 the county court of Foster county duly entered a final decree of distribution in the estate of Peter P. Zink, Sr., deceased, whereby the residue of the estate in the hands of the administrator, including all real property, was distributed among the heirs of Peter P. Zink, Sr. No appeal was taken from such decree. According to its provisions the real property was distributed among the heirs in this manner; certain specified tracts of land were assigned and set over to each of the heirs. This action involves the lands that were so set over to the plaintiff Franz E. Zink.

The ultimate question presented for determination on this appeal is: What are the rights of the respective purchasers at the sales held under the executions issued upon the two judgments against Franz E. Zink?

Appellant and respondents are agreed that the judgments became liens upon Franz E. Zink's interest in the real property (John Leslie Paper Co. v. Wheeler, 23 N.D. 477, 42 L.R.A.(N.S.) 292, 137 N.W. 412; 2 Freeman, Judgm. 5th ed. § 958, subject, of course, to an equitable lien for any indebtedness of Franz E. Zink to the estate (Stenson v. H.S. Halvorson Co. 28 N.D. 151, L.R.A.1915A, 1179, 147 N.W. 800, Ann. Cas. 1916D, 1289); but they differ as to which judgment had, or has, priority.

Plaintiffs contend that judgments attach as liens, against real property subsequently acquired by the debtor in the county in which judgments are docketed, in order of their docketing; that inasmuch as the judgment of the Foster County State Bank was first docketed it became and was a lien upon the real property of Franz E. Zink prior to the lien of the judgment of the defendant Salzer Lumber Company; and that, consequently, the sales held under the execution issued upon such former judgment will, unless redemption is made, devest the lien of the judgment of the Salzer Lumber Company. The trial court sustained this contention of the plaintiff and rendered judgment accordingly.

It is the contention of the appellant, Salzer Lumber Company:

(1) That judgments do not attach as liens upon subsequently acquired real estate in the order of their docketing; that all docketed judgments attach as liens upon such after-acquired real property upon the acquisition thereof by the judgment debtor; and that consequently the two judgments involved here became and were liens of equal rank, and that neither judgment had priority over the other.

(2) That while such judgments were liens of equal rank, the judgment creditor who first caused execution to be issued and levied upon such after-acquired lands obtained a priority of lien thereon. These contentions will be considered in the order stated.

(1) Under the laws of this state a judgment is made a lien on after-acquired real estate. So far as material here our statute (Comp. Laws 1913, § 7691) provides:

"On filing a judgment roll upon a judgment directing in whole or in part the payment of money, it may be docketed with the clerk of the court, in which it was rendered, in a book to be known as the judgment docket, and in any other county upon filing with the clerk of the district court for said county a transcript of the original docket, and it shall be a lien on all the real property except the homestead in the county where the same is so docketed of every person against whom any such judgment shall be rendered, which he may have at the time of the docketing thereof in the county in which such real property is situated or which he shall acquire at any time thereafter, for ten years from the time of docketing the same in the county where it was rendered. . . ."

Obviously the lien of a judgment cannot attach to land in which the judgment debtor has no interest. Hence, a judgment cannot attach as a lien against after-acquired real property until the property is acquired by the judgment debtor. This being so it, of course, follows that where judgments against the same judgment debtor are obtained at different times in favor of different persons, such judgments all become liens at the same instant upon real property thereafter acquired by him. It also would seem to follow that such judgments all become liens of equal rank and that no judgment has priority over another; and this is the rule established by the great weight of authority under statutory provisions quite similar to our own. 2 Freeman, Judgm. 5th ed. § 981; 15 R.C.L. p. 802; 34 C.J. p. 602.

So far as we can ascertain, the only court to reach the conclusion that such judgments are not of equal rank, but become liens upon after-acquired real property in the order of the dates of their docketing is the supreme court of Oregon. Creighton v. Leeds, 9 Or. 215. This holding was based upon a statute of Oregon which provided:

"From the date of the docketing of a judgment as in this title provided, or a transcript thereof, such judgment shall be a lien upon all the real property of the defendant within the county or counties where the same is docketed, or which may be afterwards acquired therein." 9 Or. 216.

The Oregon court said that under this "statute there is a present inchoate right of lien created, per verba de presenti, to take effect by relation when the property is acquired. The statute does not say there shall be a lien from the date of the acquisition of the property. It expressly makes the lien upon after-acquired property date from the date of the docketing of the judgment." 9 Or. 220.

Some courts have made unfavorable criticism of the Oregon case. We find it unnecessary to either approve or disapprove of that decision. It will be noted that the Oregon statute is quite different from our own and seems to furnish some basis for the inference that the legislature intended that the lien provided thereby should become effective "from the date of the docketing" of a judgment. There is no similar language in our statute and we find nothing therein to indicate any legislative intention that the lien of a judgment upon after-acquired real estate shall, as it were, relate back to the date of the docketing. The doctrine of relation is a fiction of law adopted by the courts solely for the purpose of justice (Gibson v. Chouteau, 13 Wall. 92, 20 L. ed. 534; Hussman v. Durham, 165 U.S. 144, 41 L. ed. 664, 17 S.Ct. 253; and its root must be planted in some antecedent lawful right. United States v. Atchison, T. & S.F.R. Co. [C.C.] 142 F. 187).

The lien of a judgment exists by operation of law and not by virtue of any agreement on the part of the judgment debtor. The inherent differences between a lien created by contract and the lien of a judgment seem obvious and are generally recognized. "The holder of a lien created by a contract in rem, deals concerning a specific thing; he parts with the consideration upon the security of that specific thing; he obtains an equitable interest in that specific thing. The judgment creditor has not dealt with that specific thing; he has not parted with value in contemplation of it; his lien is general, and not confined to it." 2 Pom. Eq. Jur. 4th ed. § 685. In the absence of statutory provision to the contrary, the lien of a judgment attaches only to the debtor's real interest in the real property and not to his apparent interest. Leonard v. Fleming, 13 N.D. 629, 102 N.W. 308; 2 Freeman, Judgm. 5th ed. §§ 950, 969, 970. In other words, in the absence of statutory provision to the contrary a judgment...