Opinion
No. 38560.
December 15, 1952.
1. Judgment — enrollment — lien, nature of.
An enrolled judgment is a general lien upon all the property of the judgment debtor within the county, but as to personal property the lien does not become specific so as to bind any particular item thereof unless and until execution has been issued and levied upon the particular property involved.
Headnote as approved by Hall, J.
APPEAL from the circuit court of Lincoln County; T.P. BRADY, Judge.
Breed O. Mounger, for appellant.
The appellant respectfully urges that the judgment of the court below was expressly contrary to the terms of the judgment lien statute which provides that upon the enrollment of a judgment such judgment becomes a lien upon the property of the judgment debtor from the date of its enrollment. Sec. 1555, Code 1942.
The sole contention is that notwithstanding the express provisions of statute, the lien of the judgment creditor did not attach for the reason that the cotton in question was not seized by execution. We submit that if this contention is to be upheld it is equivalent to holding that the express lien granted by statute may be easily defeated by judgment debtors by a sale of property and a quick conversion thereof by the purchaser. The lien of the judgment lien statute would become vain indeed as regards most items of personal property. In short, if the judgment creditor is required to seize the property in question by execution before the same can be converted by those claiming through the judgment debtor, then the statute affords no protection or remedy whatsoever in behalf of the judgment creditor. The item of property involved in the case at bar is cotton. Although the cotton in question came into being at a time when the appellant's judgment was lawfully enrolled, the same was not subject to execution as long as it was in the fields possessing the character of a growing crop. It was gathered and as reflected by the pleadings took the form of baled lint cotton. Whereupon it was purchased and converted by the appellee. Under the contention made by the appellee, the appellant having failed to levy execution on this cotton in that brief time during which the same was hauled from the field to the point of sale and conversion by him, the lien was lost.
In the case of Gerlach-Barklow Co. v. Ellett, et al., 145 Miss. 60, 111 So. 92, this Court specifically treated this point and held that the lien attaches to the property of the judgment debtor by virtue of the provisions of the statute and without regard to or the necessity for execution.
Appellee will probably cite and strongly rely upon the case of Simpson v. Smith Sons Gin Co., 75 Miss. 505, 22 So. 805. The Simpson case decided on December 13, 1897, unquestionably holds that the judgment lien statute then existent (Sec. 1737 Code 1880) granted only a general lien in favor of the judgment creditor as against all of the property of the judgment debtor subject to levy and sale and did not attach until the judgment creditor takes the property in execution.
The appellant concludes that the holding in the case of Simpson v. Smith Sons Gin Machine Co. is in hopeless conflict with the decision of this Court in the case of Gerlach-Barklow Co. v. Ellett, et al., cited above and further is in conflict with decisions of this Court decided subsequent thereto and cited below. The sole distinction which may be asserted to exist between these two cases is that in the Simpson case the plaintiff sought to recover judgment against the defendant for the proceeds of the sale of property upon which he asserted the judgment lien, whereas in the Gerlach-Barklow case the action was to subject the property to the judgment lien by execution in the hands of the defendant who was a subsequent purchaser. We respectfully urge, however, that this distinction has no application to the decision of the issue in the case at bar and further that the principal question to be decided here is as to when the judgment lien attaches.
The case of Simpson v. Smith Sons Gin Machine Co. was decided in 1897, whereas the Gerlach-Barklow Co. v. Ellett, et al., upon which appellant relies was decided by this Court on January 31, 1927. Gerlach-Barklow Co. v. Ellett, et al. was cited in the recent case of Stuart v. Pickett, et al., 193 Miss. 455, 10 So.2d 207. In this latter case this Court held that a judgment lien on land was a lien on the timber thereon, both before and after the timber was cut. And the decision of the Court subjected the purchase price of timber cut and removed to the satisfaction of the judgment creditor's lien. In Stone, et al. v. Townsend, 190 Miss. 547, 1 So.2d 237, it was held that in equity the lien of a recorded judgment followed the proceeds of the sale of lands subject to that lien.
We urge that the statutory lien of a judgment creditor would be destroyed for all practical purposes insofar as it relates to a possibility of a satisfaction of his judgment from agricultural products, which are in many sections the sole hope of the satisfaction of judgment liens. It has been held that growing crops are not the subject of execution under a judgment lien. It has been held that once the commodity of cotton was reached the channels of trade and is represented by negotiable warehouse receipts, which is unquestionably the present accepted custom, the receipts are beyond attachment or levy as being negotiable. It therefore follows that the only time that the commodity of cotton would be subject to levy of execution would be in transit from the field to the gin or from the gin point after baling before it reaches a warehouse and becomes represented by a negotiable warehouse receipt. As cotton proceeds from the field to the gin it is, of course, carried in bulk as seed cotton with no identity or method of identification as to ownership whatsoever. It would take a most vigilant judgment creditor indeed to identify such commodity enroute to the gin. When cotton reaches the gin and is processed and baled it obtains an identity for the first time. The bale is there branded by the name of the producer. A purchaser of this cotton knows the owner thereof and if he proceeds to purchase this cotton either before or after it is placed in a warehouse he purchases with full knowledge of the fact that he purchases from a judgment debtor if there be an enrolled judgment against the owner from whom he purchases. For all practical purposes therefore, the only possibility of levying execution available to the judgment creditor under the theory announced in the Simpson case would be that short interval elapsing from the moment the cotton was baled and tagged until the same was warehoused or purchased by a buyer. If the ginner is also a buyer as is true in many cases, then of course this interval is extinguished and the seizure of the cotton under execution is entirely eliminated. If the purchaser of cotton is to be held immune for his wrong in converting such cotton to his own use after purchase from a judgment debtor, then cotton is for all practical purposes immune and exempt from execution in satisfaction of a judgment.
We respectfully urge that neither the issuance nor return of an execution under the judgment held by the appellant was a condition precedent to maintaining this action as against the appellee who purchased and converted to his own use the property subject to the judgment lien held by the appellant. In Schwartz Bros. Co. v. Stafford, 166 Miss. 397, 148 So. 794, it was held that a suit upon a judgment is an original cause of action, and is not a suit upon the original debt or cause of action upon which a judgment was rendered. It was held further that a suit upon a judgment was an entirely new action and not a continuation of the former one.
The judgment of the lower court in sustaining the demurrer for the assigned reason that the property had not been taken in execution, had the effect of holding that the remedy of execution afforded by statute was the sole remedy under the judgment and further that, for all practical purposes, the judgment creditor was bound to a continuation of an action in which the judgment was rendered. The declaration charged that the property of the judgment debtor had been converted to the use of the appellee C.C. Clark with actual notice of the judgment lien of the appellant and to his damage to the extent of the value thereof. We urge that in view of the conversion of the cotton in question the issuance of execution was not required as a condition precedent and the appellant, in view of the conversion, had the right to maintain a separate and distinct action as against the appellee who converted the same.
In 50 C.J.S., par. 852, p. 424, the general rule is announced to the effect that the issuance of execution is not a condition precedent to an action upon a judgment.
Cohn, Hobbs Hobbs, for appellees.
I. Construction of declaration. Sharp v. Learned, 182 Miss. 333, 181 So. 142, 181 So. 122; Wray v. McMahon, 182 Miss. 592, 182 So. 99; Otis v. Gulf Ship Island R.R. Co., 197 Miss. 56, 19 So.2d 241.
II. Admissions of demurrer. Williams v. Williams, 185 Miss. 53, 187 So. 209; M.L. Virden Lbr. Co. v. Stone, 203 Miss. 251, 33 So.2d 841; Barnes v. Jones, 139 Miss. 675, 103 So. 773; Burton v. Bibbes, 204 Miss. 248, 267, 37 So.2d 285; Triplett v. Bridgforth, 205 Miss. 328, 339, 38 So.2d 756; Tennent v. Barksdale, (Miss.), 3 So. 80; Partee v. Kortrecht, 54 Miss. 66.
III. Consideration of contents of declaration.
IV. No cause of action against C.C. Clark. Dozier v. Lewis, 27 Miss. (5 Cush.) 679; Simpson v. Smith Sons Gin Machine Co., 75 Miss. 505, 22 So. 805; Secs. 1736, 1737, 1739, Code 1880; Secs. 756, 757, 758, 760, Code 1892; Sec. 819, Code 1906; Secs. 1554, 1555, 1556, 1558, Code 1942; First National Bank of Commerce v. Donald, 112 Miss. 681, 73 So. 723.
V. Statute provided sole remedy in this case, and declaration shows no facts to extend or engraft exception on statute.
VI. Doctrine of stare decisis. R.J. McLin Co. v. Worden, 99 Miss. 547, 55 So. 358; Maris v. Lindsey, 124 Miss. 742, 87 So. 12; Burks v. Moody, 141 Miss. 370, 107 So. 279; White v. Williams, 159 Miss. 732, 132 So. 573.
VII. Answer to certain argument and citations of Willis Hardware Company. Gerlach-Barklow Co. v. Ellett, 145 Miss. 60, 111 So. 92; Stuart v. Pickett, 193 Miss. 455, 10 So.2d 207; Stone v. Townsend, 190 Miss. 547, 1 So.2d 237; Schwartz Bros. Co. v. Stafford, 166 Miss. 397, 148 So. 794; 50 C.J.S. 424.
VIII. Suit against Johnnie Bracey, and venue as to C.C. Clark. Tchula Commercial Co. v. Jackson, 147 Miss. 296, 111 So. 874; Daniel v. Livingstone, 168 Miss. 311, 150 So. 662; Trolio v. Nichols, 160 Miss. 611, 133 So. 207; Burgin v. Smith, 163 Miss. 797, 141 So. 760; 50 C.J.S. 421-424; Sec. 1433, Code 1942.
Appellant obtained a judgment for $2,227.01 in the circuit court against Johnnie Bracey on August 9, 1949, which was duly enrolled and entered upon the judgment roll of Walthall County on August 18, 1949. On January 2, 1950, it filed suit in the circuit court of said county against Johnnie Bracey and C.C. Clark and alleged in its declaration the entry and enrollment of said judgment and further alleged that subsequent thereto and on various dates between August 24, 1949, and September 22, 1949, Bracey sold and delivered to Clark fifteen bales of lint cotton of the total value of $2,129.07 and that Clark took possession thereof and converted the same to his own use. The declaration further alleged that appellant had a lien on said cotton by virtue of said judgment and the enrollment thereof and that appellant was entitled to recover the value of said cotton from Clark and Bracey. It is not alleged or claimed that any execution or other process was ever issued or levied upon the cotton. Bracey demurred to the declaration and his demurrer was sustained. Clark filed a motion to change the venue of the suit to Lincoln County, the same being the county of his household and residence, and that motion was sustained. When the cause reached that county the court sustained a demurrer which Clark filed to the declaration, from which action this appeal is prosecuted.
The sole question presented is whether appellant had such a lien on the cotton as to entitle it to recover the value thereof from Clark.
Section 1554, Code of 1942, provides that the circuit clerk of each county shall procure and keep in his office a book to be styled "The Judgment Roll" and further provides that all judgments shall be enrolled therein within twenty days after the adjournment of each term of the court. Section 1555, Code of 1942, provides: "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 * * *."
In the early case of Dozier v. Lewis, 27 Miss. 679, this Court said: "Conceding the lien of the judgment, as it originally stood, to be in full force when this bill was filed, and to have had precedence over the purchase of the slaves by Lane, what was the nature and extent of that lien? It was a general, not a specific lien. 'It is not a property in the thing itself, nor does it constitute a right of action for the thing. It more properly constitutes a charge upon the thing.' Story, Eq. Sec. 1215. It is neither a jus in re, nor a jus ad rem. 4 Kent's Com. It confers a mere right of satisfaction out of any property of the defendant then held or subsequently acquired, which, under our laws, operated as a charge upon the property from its date, and empowered the creditor to have the property taken in execution. Any one purchasing property in this condition, of course holds it subject to the right of the creditor to subject it to his judgment. But this right depends upon the fact that the property shall be actually taken in execution; and if that is never done, the creditor's claim is nothing more than a debt of record, and a purchaser for a valuable consideration would be entitled to hold property purchased from the defendant subsequent to the date of the judgment.
"There is no soundness in the position, that such a purchaser is to be held as a trustee, and accountable for the value of the property. The property is not bound as trust property, nor has the judgment creditor any claim whatever upon it in that point of view; nor is it even subject absolutely to the judgment, but only on condition that it is seized in execution, for the judgment may be otherwise discharged. It is no more subject as a trust fund to the payment of the judgment, than it is to the payment of any other just debt of the defendant not in the form of a judgment; and in a certain sense, all the property of a debtor is regarded as subject, as a trust fund, to the payment of his debts. But this has reference to the obligation and duty of the debtor in good conscience, and not to the power of the creditor to set up a trust upon it, and thereby prevent its alienation. Until it becomes bound by legal process or conveyance, it is not subject to the trust so as to prevent the right of disposition. The rule insisted upon in behalf of the appellant has no application to a case of this kind, but applies only to cases of direct, technical trust, and to parties who are special trustees, and hold property purely in trust. Story, Eq. Sec. 1257. And we are not aware that it has ever been held that a party purchasing property for a valuable consideration from a defendant against whom there was a judgment operating as a general lien, is accountable to the judgment creditor for the value of the property. No authority has been brought to our notice sanctioning such a position, nor do we perceive upon what just principle it can be maintained."
That case was decided on a situation which arose in 1839. The statute above quoted, so far as we can find, was first enacted in similar terms on February 16, 1841, and appears in Hutchinson's Code of 1848, Ch. 61, Art. 14 (1). It has been repeatedly re-enacted down to the present date with some changes not material to here note. The decision in Dozier v. Lewis was therefore under the general law as to judgment liens and not under a statute.
In the case of Simpson v. Smith Sons' Gin Machine Co., 75 Miss. 505, 22 So. 805, at a time when the statute was in full force, this Court said: "Appellees had obtained judgment against Dewberry, which had been duly enrolled, and thereby acquired a general judgment lien upon certain personal property, and appellant had acquired this property and disposed of the same subsequently to the rendition and enrollment of said judgment. But the property was never taken in execution, and thereby subjected to the judgment lien, and the appellees have only a record debt against Dewberry. The lien is not a specific lien on certain property, but only a general lien on all property subject to levy and sale, and does not attach until the judgment creditor takes the property in execution."
In First National Bank of Commerce v. Donald, 112 Miss. 681, 73 So. 723, this court quoted with approval from Dozier v. Lewis, supra, and said: "The force of a judgment lien must depend upon the statute which gives it. No execution and levy under the judgment lien having been had here, we do not hesitate to say that the lien is general, and not specific. * * * The lien, being a general lien, before levy of execution, is merely a charge upon the property; it is not a right in it nor to it; it is only a right of satisfaction to be had out of it."
Appellant relies on the case of Gerlach-Barklow Co. v. Ellett, 145 Miss. 60, 111 So. 92, and contends that the same is in direct conflict with the decisions above cited. The factual situation in that case was wholly different from that existing in the case at bar. The facts would be the same if appellant had obtained execution on his judgment and had caused the same to be levied upon the Bracey cotton while it was still in the hands of appellee, but that was not here done. Appellant merely sued appellee for the value of the cotton which he purchased from Bracey. In Gerlach-Barklow Co. v. Ellett, the company had obtained a judgment against Ellett and had caused an execution to be levied on an automobile belonging to Ellett; the automobile was for some reason released from the execution and Ellett sold it to Standard Automobile Company; thereafter Gerlach-Barklow Co. obtained another execution against Ellett and caused it to be levied upon the same automobile then in the hands of Standard Automobile Company. The judgment creditor in that case seized the property of the judgment debtor in the hands of a third party and by such seizure under execution obtained a specific judgment lien thereon. Here the appellant did not seize the Bracey cotton in the hands of Clark so as to obtain a specific lien thereon but waited until after Clark had disposed of the property and merely sought a money judgment against Clark for conversion of the cotton against which no specific lien had ever been impressed. In order that confusion may be avoided in the future it should be noted that this case and all the cited cases deal only with personal property. We conclude that appellant never obtained a specific lien on the cotton and that the action of the learned circuit judge in sustaining the demurrer to the declaration was correct and should be affirmed.
Affirmed.
McGehee, C.J., and Alexander, Kyle, Holmes, Arrington and Ethridge, JJ., concur.
The controlling opinion largely nullifies the effect of the judgment enrollment statute upon the property of the judgment-debtor. It holds that one coming into possession of such property takes it free of such enrolled judgment unless the property has been seized under execution. If a transferee, or tranferees, regardless of number, of such property from the original owner, can maneuver to dispose of the property, or hide it out, so that levy thereon cannot be made under execution, then there is no liability whatever on such transferees. The entire right of the judgment creditor being dependent alone upon seizure under execution, enrollment of the judgment is useless, for execution can issue on an unenrolled judgment as effectually as upon one enrolled. As stated in the majority opinion, the Dozier case was decided before adoption of the statute, and, therefore, has no application thereto. The Simpson case is authority for the majority holding. However, in my view, that case is wrong. It makes the right of the creditor dependent upon a special lien. There is, as to effect, no difference between the two. Both simply entitle the creditor to proceed against the property to enforce his lien and subject the property to payment of the debt. A general judgment creditor can resort to execution or, in proper case, to chancery. A vendor, having a special lien for the purchase price, can resort to equity. A landlord, having a special lien, enforces it by the method set out in the statutes. In all cases of liens, whether general or special, the lienor can simply proceed to enforce the lien and make his money out of the property. But in both cases the property is burdened with the lien. Section 1555, Code of 1942, imposing the general lien, provides, "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." Incidentally, no claim is made here that the transfer of the property did not take place in the county where the judgment was enrolled.
In my opinion this case is controlled by Gerlach-Barklow Co. v. Ellett, 145 Miss. 60, 111 So. 92. In that case Gerlach had an enrolled judgment against Ellett. Execution issued on that judgment and an automobile in the possession of Ellett was seized. However, the execution was released and withdrawn by written authority of the judgment-creditor. That left nothing against the automobile except the lien under the enrolled judgment. In that situation Ellett sold the automobile to Standard Automobile Company. Gerlach then had another execution issued and the car was seized in the possession of the Standard Automobile Company. The court held that the claim of Gerlach was superior to that of Standard. Of course, the rights of the parties were determined by the conditions existing at the time Standard got the car. At that time Gerlach had nothing whatever except its lien under the enrolled judgment. The first execution had been effectually withdrawn and the second had not been issued. The court stated the contention of Standard to be that Gerlach "waived and surrendered its judgment lien against the car when it authorized the sheriff to release the car from the first execution issued by the judgment creditor and the lower court so held, seemingly upon the idea that no lien attached against personal property under an enrolled judgment, unless and until the property was seized under the writ of execution". This Court then said "This act of releasing the levy of the judgment creditor could in no way impair or defeat the judgment lien on the car given under the statute." The Court further said the parties were "bound to take notice of our statutory law on judgment liens, and he (the purchaser of the car) was charged with knowledge of the lien of the judgment creditor when he purchased the car from Ellett." Again, it is proper to emphasize that at the time of the purchase by Standard the only lien against the car was that of an enrolled judgment and the rights of Standard and of Gerlach, between whom the contest existed, were determined as of the time Standard purchased the car. The subsequent execution had no effect upon such rights; it was simply the means and occasion of bringing the issues to decision.