Summary
holding that a judgment enrolled after the time allowed for the chancery clerk to enroll the judgment did not affect the rights of a bona fide purchaser for value who purchased the property before the enrollment of the judgment but after the judgment was rendered
Summary of this case from BancorpSouth Bank v. Bruce Sweet Potato, Inc.Opinion
No. 30011.
May 30, 1932.
1. JUDGMENT.
Judgment lien relates back to date of rendition of judgment only when enrolled within time allowed to clerk for enrolling judgment (Code 1930, section 611.)
2. JUDGMENT.
Judgment enrolled after time allowed clerk for enrolling judgment did not affect rights of bona fide purchaser for value purchasing property before enrollment but after judgment was rendered (Code 1930, sections 610, 611).
3. DAMAGES.
Attorney's fees are not recoverable as part of damages except where exemplary damages are recoverable.
4. EXECUTION.
Attorney's fees held not recoverable as damages for wrongful act in levying execution where judgment creditors and sheriff acted on advice of counsel (Code 1930, sections 610, 611).
APPEAL from chancery court of Newton county. HON. A.B. AMIS, Chancellor.
Shannon Schauber, of Laurel, and Gabe Jacobson, of Meridian, for appellants.
Section 610, Code of 1930, directs the clerk how he shall enroll a judgment, that he must keep within his office one or more books styled "The Judgment Roll," and each book must be appropriately divided under the several letters of the alphabet and then tells how each page must contain a certain caption, and that the clerk shall, within twenty days after the adjournment of each court, enroll final judgments in a certain manner therein defined.
Section 611, Code of 1930 states "a judgment so enrolled shall be a lien upon and bind all the property of the defendant within the county where so enrolled, from the rendition thereof." There are contentions that the words "within twenty days from the adjournment of court," are merely directory and that if a judgment is properly enrolled that it binds the defendants property within the county from the date of its rendition.
The beginning of said section 611, says, "a judgment so enrolled, etc." the use of "so" in this section is given the ordinary use as defined in the dictionary. So, in this, that, or such a manner, referring to the preceding section, or in the manner in which.
Funk Wagnall's Standard Dictionary, 376.
The word "manner" evidently means "how" rather than "when" so enrolled.
The lien of a judgment within the county, begins not from the date of the signing of the minutes by the court, but from the date of its rendition, that is, the entry on the minutes.
Clark v. Duke, 59 Miss. 575.
The difference between the lien of a judgment rendered by a circuit court and one rendered by a justice of the peace is that the first, upon enrollment, becomes a lien, and binds the property of the defendant from the rendition thereof while the lien of the latter attached only from the date of its enrollment.
Minshew v. Davidson, 86 Miss. 354, 38 So. 315; Code 1892, p. 757.
A judgment-lien operates in favor of the creditor against the debtor, assignees and volunteers, so as to override sales, incumbrances, or interest acquired in the property to which the lien attached, subsequently to the judgment. If one purchase property from the judgment-debtor, the creditor can deprive him of it by actual levy under process.
Cahn v. Penn., 56 Miss. 360; 15 R.C.L. 799, sec. 257.
It is the general rule that attorney's fees should not be recovered as part of damages unless the wrong or injury complained of is connected with some circumstances of aggravation or malice.
It is the rule in Mississippi that attorney's fees can be awarded in cases in which exemplary damages are given.
Yazoo M.V.R. Co. v. Consumer's Ice Power Co., 109 Miss. 43, 67 So. 657.
Gabe Jacobson, of Meridian, for appellants.
Johnson v. Cole Mfg. Co., 144 Miss. 482, 110 So. 429, is not conclusive of the question here for the reason that in that case the property involved was personal property and not real estate as in the case at bar.
"So" is defined as: "in the way or manner indicated, described, or implied; in that manner or fashion."
New Century Dictionary, page 1756.
The words "so enrolled" in section 611, Code of 1930, mean the manner and way in which it was enrolled rather than the time in which it was enrolled.
The appellee had actual notice of the judgment. And the chancellor was manifestly wrong in his holding because the appellee was not an innocent purchaser without notice, but had actual notice of the judgment before the enrollment of the same by the clerk of the court.
It is the general rule that attorney fees should not be recovered as a part of damages, unless the wrong or injury complained of is connected with some circumstance of aggravation or malice. It is the rule in Mississippi that attorney fees can be awarded in cases in which exemplary damages are given.
Yazoo Mississippi Valley Railroad Company v. Consumers Ice Power Company, 109 Miss. 43, 67 So. 657.
Punitive damages are only allowable when there exists some element of intentional wrong, or in the absence of intention there must be negligence so gross as to show a reckless disregard of consequences.
I.C.R.R. Company v. Mariah Dodds, 97 Miss. 865, 53 So. 409.
The entire record shows that this is a case in which a doubtful question is before the supreme court of Mississippi for decision; that it is a case in which the alleged wrongful and malicious acts were committed by a reputable attorney acting in good faith for his client; and it is a case where the attorney had been diligent in looking up the law and investigating the matter and in good faith believes that he proceeded in a lawful way.
A plaintiff is not liable in exemplary or vindictive damages for procuring an attachment, if he acted in good faith, under advice of his attorney, who was on the ground at the place where the attachment was made.
Gramling Spalding Co. v. Parker, 57 So. 54.
A.B. Amis, Jr., of Newton, for appellee.
Sections 610, 611, Code of 1930 give no lien until the judgment is enrolled; it is the enrollment of the judgment that creates the lien; the judgment roll is not merely for the purpose of giving notice of a pre-existing lien.
Johnson v. Cole Mfg. Co., 144 Miss. 482, 110 So. 428.
Under the common law a judgment did not create a lien at all but was only a record debt and the lien of the judgment is created by statute. This being true, the statute being in contradiction to and amendatory of the common law, the statute must be strictly complied with for the purpose of creating the lien.
15 R.C.L., pages 793-794, pars. 248-250.
After twenty days one is guilty of laches, and thereby looses his lien until his judgment be enrolled. A judgment shall not be a lien on any property of the defendant thereto unless the same be enrolled.
Sec. 611, Code of 1930.
The statute provides that the date of enrollment shall be shown for the purpose of showing when the lien takes effect.
Sec. 610, Code of 1930.
The objects of the statute in requiring judgments to be enrolled is to create liens on the property of defendants and to give notice thereof to subsequent creditors and purchasers. A different construction would render the judgment roll a snare instead of a protection to those for whose benefit it was intended.
Hughes v. Lacock, 63 Miss. 112.
The statute expressly provides, that judgments and decrees shall cease to operate as liens upon any property of defendants, until the same shall be entered in the judgment roll, and that the liens shall be from such enrollment, instead of from the rendition of the judgments and decrees. The act is positive and makes the lien to depend absolutely upon the due enrollment of the judgment.
Planter's Bank of Tennessee v. Conger, 12 S. M. 527.
The lien of a judgment depends on the statute regulating it. It exists or not, as the statute declares. If the statute provides that certain things must concur to create a lien, it does not exist, without the concurrence required.
Bergen v. The State, 58 Miss. 623.
In others it is proper for the jury to take into consideration plaintiff's expenses of litigation as an element of punitive damages, and make allowances therefor, though as to this there is authority to the contrary.
8 Ruling Case Law, page 608; New Orleans, etc., Railroad Company v. Albritton, 38 Miss. 242; 75 Am. Dec. 98.
Upon the same principle as heretofore stated the courts will not as a general rule allow attorney's fees to be recovered as part of the damages in an action, unless the wrong or injury complained of is connected with some circumstance of aggravation or malice, but even in such cases the courts are very loathe to depart from the well established rule, and when only compensatory damages are sought counsel fees will usually be denied as an element of damages.
13 Cyc., pp. 79, 80, 81 and 82.
There is a decided conflict of authority as to whether expenses and attorney's fees can be awarded in those cases in which exemplary damages are given by the jury. In Alabama, Connecticut, Kansas, Mississippi, and Ohio such practice is allowed. The better rule on this subject, however, seems to be that such expenses and fees are no more allowable where exemplary damages are given than in ordinary cases.
13 Cyc., page 82.
Punitive damages are only allowable when there exists some element of intentional wrong, or, in the absence thereof, negligence so gross as to show a reckless disregard of the consequences.
Illinois Central R.R. Co. v. Dodds, 97 Miss. 65, 53 So. 409.
The acts of the appellants amount to gross negligence in failing to determine what was the law before having appellee's property levied upon or in failing after having been advised as to what the law was, by the filing of the bill in this cause, to release the property from the levy as made.
It is the general rule that attorney's fees should not be recovered as a part of damages unless the wrong or injury complained of is connected with some circumstance of aggravation or malice. It is the rule in Mississippi that attorney's fees can be awarded in cases in which exemplary damages are given.
Y. M.V.R.R. Co. v. Consumers Ice Power Company, 109 Miss. 43, 67 So. 657; New Orleans, etc. Railroad Company v. Albritton, 38 Miss. 242; 75 Am. Dec. 98.
Plaintiffs in executing are liable as trespassers in many instances in which wrongful executions have been levied, particularly when the plaintiff directs the act which the officer performs. Where the wrongful execution was issued at the instance of the creditor's attorney the creditor is liable, and also the attorney who directed the levy.
10 R.C.L. 1394, par. 185.
Where attorney's fee is allowed to successful plaintiff in suit to restrain sale of property under execution, the test as to amount of fee to be allowed is value of property illegally seized, damage or inconvenience that might be sustained by plaintiff by reason of the illegal seizure if it should not be terminated, and the legal knowledge, skill, and labor required to secure plaintiff in his rights.
Marine Bank Trust Company v. Shaffer, 116 So. 838.
Argued orally by C.R. Shannon, for appellant.
The appellee, John L. Hopkins, filed a bill of complaint in the chancery court of Newton county, Mississippi, against the Kalmia Realty Insurance Company, W.S. Taylor, and A.C. Graham, sheriff, praying for the issuance of an injunction prohibiting the appellants from selling or attempting to subject certain property to the supposed lien of a certain judgment in favor of the appellants Kalmia Realty Insurance Company and W.S. Taylor, and against S.D. Russell and A.S. McClendon. A temporary injunction was issued and served on the appellants, and thereafter they interposed a demurrer to the bill of complaint, which was overruled. Thereupon they answered the bill, and upon final hearing on the original bill, answer, and proof, a decree was entered making the temporary injunction perpetual, and awarding the appellee an attorney's fee of five hundred dollars as damages for the wrongful, willful, and malicious acts of the appellants in causing the levy of an execution on the property described in the bill of complaint, and from this decree this appeal was prosecuted.
From the pleadings and proof it appears that at the August, 1929, term of the circuit court of Newton county, the appellants Kalmia Realty Insurance Company and W.S. Taylor, secured a judgment against S.D. Russell and A.S. McClendon in the sum of five thousand five hundred dollars, with eight per cent interest from February 11, 1927, which judgment was not enrolled in the circuit clerk's office until December 20, 1929, more than four months after the adjournment of the August term of the said circuit court. On the 30th day of November, 1929, after the rendition of said judgment, but before the enrollment thereof, S.D. Russell, one of the judgment debtors named above, for a stated consideration of twenty thousand dollars in cash, executed and delivered to the appellee a warranty deed conveying to him the property described in the bill of complaint. This deed was executed by S.D. Russell and his wife on the 30th day of November, 1929, and was filed for record in the office of the clerk of the chancery court of Newton county on the 3d day of December, 1929. Thereafter one of the attorneys for the judgment creditors named above examined the records of the chancery clerk's office of said county, and found the aforesaid deed conveying the said property to appellee, and on the 30th day of March, 1931, he directed the clerk of the circuit court to issue an execution on the said enrolled judgment, and, under the direction of said attorney, the sheriff of the county levied on the property theretofore conveyed to the appellee by Russell, and advertised the same for sale under the said execution. Prior to the date fixed for the sale of said property under the execution, the appellee filed the bill of complaint herein, praying for the issuance of a temporary injunction enjoining the sale, and for damages for the wrongful, willful, and malicious levy of the execution.
The assignments of error are stated in varying language under numerous subheads, but for the purpose of this decision they may be combined into two general assignments: First, that the court erred in rendering a decree in favor of appellee making the injunction perpetual; and, second, the court erred in awarding the appellee attorney's fees as damages.
The first assignment of error, as stated above, involves the consideration and construction of sections 610 and 611, Code 1930. Omitting the form of the prescribed caption of the pages of the judgment roll, section 610, Code 1930, reads as follows: "The clerk of the circuit court shall procure and keep in his office one or more books, to be styled `The Judgment Roll,' which books shall be appropriately divided under the several letters of the alphabet, and on each page shall be placed the following caption: [Omit caption.] And the clerk shall, within twenty days after the adjournment of each term of the court, enroll all final judgments rendered at said term, in the order in which they were entered on the minutes, by entering on the judgment roll, under the proper letter or letters of the alphabet, the names of each and every defendant to said judgment, the amount of such judgment, the date of its rendition, the county and the court in which rendered, the date of enrollment, and the names of the plaintiff or plaintiffs. When any judgment shall be satisfied, the clerk shall so enter under the proper heading, and subscribe the entry."
Section 611, Code 1930, reads as follows: "A judgment so enrolled shall be a lien upon and bind all the property of the defendant within the county where so enrolled, from the rendition thereof, and shall have priority according to the order of such enrollment, in favor of the judgment creditor, his representatives or assigns, against the judgment debtor, and all persons claiming the property under him after the rendition of the judgment; and a judgment shall not be a lien on any property of the defendant thereto unless the same be enrolled; but in counties having two judicial districts a judgment shall operate as a lien only in the district or districts in which it is enrolled."
In the case of Johnson v. Cole Mfg. Co., 144 Miss. 482, 110 So. 428, 429, it was held that "these sections give no lien until the judgment is enrolled; that it is the enrollment of the judgment that creates the lien," and this is but a restatement of the express provision of section 611, Code 1930, that "a judgment shall not be a lien on any property of the defendant thereto unless the same be enrolled." This section provides, however, that when a judgment is so enrolled, that is, within twenty days after the adjournment of the court at which it was rendered, it "shall be a lien upon and bind all the property of the defendant within the county where so enrolled, from the rendition thereof, and shall have priority according to the order of such enrollment, in favor of the judgment creditor, his representatives or assigns, against the judgment debtor, and all persons claiming the property under him after the rendition of the judgment." But it is only when enrolled within the time allowed to the clerk for enrolling judgments rendered at any term of court, that a judgment lien relates back to the date of the rendition thereof.
A judgment enrolled after the expiration of the time within which the clerk is required by section 610, Code 1930, to enroll judgments rendered at any term of court, creates a lien only from the date of enrollment, and does not affect the rights of intervening or prior bona fide purchasers. In the case at bar the judgment was not enrolled until some time after the appellee acquired the property by purchase and had placed his deed of record. It is admitted that the appellee caused the title to the lands to be investigated, and was advised that the record showed that the title was vested in the proposed vendor, free of all liens except a deed of trust in favor of the First National Bank of Meridian. The record shows that the appellee was a bona fide purchaser for value of the property involved long before the enrollment of the judgment, and consequently this property was not subject to levy and sale under an execution based on the judgment. The decree of the court below making the injunction perpetual will therefore be affirmed.
We are of the opinion, however, that the court erred in allowing the appellee attorney's fees. It is the general rule in this state that attorneys' fees are not recoverable as a part of damages, unless the wrong or injury complained of is connected with some circumstance of aggravation or malice, or in other words, that attorneys' fees can be awarded only in cases in which exemplary damages are recoverable. Yazoo Miss. Valley R. Co. v. Consumers' Ice Power Co., 109 Miss. 43, 67 So. 657. The proof shows that in the issuance and levy of the execution the appellants acted under the directions and advice of a reputable and able attorney who conceived that under the provisions of sections 610 and 611, Code 1930, upon the enrollment of the judgment in December, 1929, the lien thereof related back to the rendition of the judgment. We do not think the proper construction of those statutes is so manifest or free from doubt as to render one guilty of a willful or malicious wrong, or negligence so gross as to show a reckless disregard of consequences, who acted upon the advice of counsel to the effect that the lien of the judgment was superior to the rights of purchasers subsequent to the rendition of the judgment. Consequently in so far as the decree allowed attorney's fee it will be reversed, and the costs of this appeal will be equally divided between the appellants and the appellee.
Affirmed in part; reversed in part.