a

charge on the lands as against purchases in good faith, and as against subsequent encumbrances, from and after ten years from the docketing of the same, and all judgments in any court of New-York or of the United States within the state of New-York, are presumed to be satisfied after twenty years from the signing and filing of the record; and the presumption can only be repelled by a written acknowledgment of indebtedness, or by proof of payment of part within the twenty years. In every other case the lapse of time is conclusive. There is a great diversity of practice in the different states on this point. In the eastern states, as Maine, New-Hampshire, Massachusetts, Rhode Island, Connecticut, and Vermont, the judgment is no lien, and the lands are not bound until execution issued; but as a substitute for this apparent want of due protection to the creditor, the land may be attached, in the first instance, on mesne process and that creates a valid lien. In Kentucky, lands are only bound, like

alphabetical order, and a fresh memorandum thereof to be made after five years from the first entry. A debtor after verdict and before judgment may lawfully give a preference to a creditor by conveying real estate to him in satisfaction of a bona fide debt, and thus prevent the lien of the judgment, provided the lands be purchased by the creditor free from any fraudulent intent. Waterbury v. Sturtevant, 18 Wendell, 353.

New-York Revised Statutes, vol. ii. 182, sec. 96, 97. Ibid. 359, sec. 3, 4. Judgments and decrees, says the statute, are a charge upon, and bind "the lands, tenements, real estate, and chattels real" of the defendant. But a court of chancery will protect the equitable rights of third persons against the legal lien of a judgment, provided those rights existed at the time of the judgment. Keirsted v. Avery, 4 Paige, 1. Under the old English law the interest of a tenant for years was not bound by judgment, (Fleetwood's case, 8 Co. 171,) and this seems to be still the law in Pennsylvania. Krausse's Appeal, 2 Wharton, 398.

New-York Revised Statutes, vol. ii. 301.

• In Connecticut, the attachment on mesne process binds the estate real and personal, as against any other creditor or bona fide purchaser, provided the service be duly completed and returned. Statutes of Connecticut, 1838, p. 43. This is a general rule on such attachments in New-England and elsewhere. Hubbard v. Hamilton Bank, 7 Metcalf, 340. Wallace v. M'Connell, 13 Peters, 136. Notice to the defendant constitutes the commencement of VOL. IV.

35

chattels, from the delivery of the execution. In Louisiana, a judgment is a lien, not by being docketed, but

a suit on a writ of attachment against real estate. Sanford v. Dick, 17 Conn.. Rep. 213. In Tyrell v. Rountree, 1 McLean's Rep. 95, an attachment levied on lands in Tennessee fixes a lien from the time of the levy. In Maine and Massachusetts, the officer making an attachment of real estate on mesne process must file an attested copy of the return in the office of the clerk for the county, and it is to be entered by the clerk in a book, in order to make it a lien. See Revised Statutes of Massachusetts. It is understood that the attaching creditor acquires no interest in the property. His right is to have it forthcoming to satisfy the execution. The property remains in the custody of the law. The sheriff has a special property to protect it, but the general property is not changed. The sheriff may deliver it to a bailee to keep at his own risk. Shaw, Ch. J., in Grant v. Lyman, 4 Metcalf's Rep. 476. So in Perkins v. Norvell, 6 Humphrey, 151, it was held that an attachment created a lien on the real estate of the debtor, but did not divest his title. In Connecticut, the officer must leave a copy of the writ and a description of the land attached in the town clerk's office within seven days thereafter, or the lands will not be bound against other creditors and bona fide purchasers; nor will the lien, created by the attachment, be preserved, unless execution within sixty days after judgment be served on the personal, and, within four mouths after judgment, on the real estate. Statutes of Connecticut, ibid. In Vermont, the lien on real estate, created by the due service and return of the original process of attachment, continues for five calendar months after the rendition of final judgment and no longer. Revised Statutes of Vermont, 1839, p. 182. In North Carolina, the levy of an attachment upon lands, consummated by a subsequent judgment and sale on execution, creates a lien as against a subsequent judgment creditor, though his was the prior judgment. Den v. Carson, 3 Battle's Rep. 388. The lien has relation back to the time of the levy so as to defeat a sale made afterwards by the defendant. Den v. Ketchum, ibid. 414. This is the general rule in Illinois, where the NewEngland law on this subject prevails. If the attachment be without personal service, the judgment is in rem; if with it, the judgment is in personam also. Martin v. Dryden, 1 Gilman, 188. The New-England rule is, that perishable personal property, and live stock, in certain cases, attached on mesne process for debt, may be appraised and sold, and the proceeds held to abide the judgment. To make a valid attachment of land, the officer need not enter upon it, or see it. The return that it is attached is sufficient. But on attachment of personal property he must take possession of the goods. Perrin v. Leverett, 13 Mass. Rep. 128. Taylor v. Mixter, 11 Pick. Rep. 341. This proceeding has some analogy to the laws of Spain, as formerly in force at New-Orleans, by which, when a creditor proves his demand, and satisfies the judge that the debtor is wasting his goods, or that there is danger they may be destroyed or removed before judgment, the judge orders the property to be sequestered, unless the debtor gives surety to the creditor to abide the judgment of the court. 1 Martin's Rep. 79. 2 ibid. 89.

• Bank of the United States v. Tyler, 4 Peters' U. S. Rep. 366. Million

by being registered with the recorder of mortgages. In Pennsylvania, the judgment is a lien from the signing of the judgment, on the lands owned at the time by the debtor; though the lien ceases, by the act of 4th April, 1797, which provision was re-enacted in 1834, after seven years on judgments inter vivos, unless revived by scire facias, and judgments at the death of a decedent bind the estate for five years, though not revived by scire facias, and they do not bind after-acquired lands until the execution has issued. This distinction is established by the decision in Calhoun v. Snider, in which the antiquity and authority of the rule of the English common law, that a judgment binds after-acquired lands, has been ably questioned, *though, I think, *436 not successfully shaken. In Virginia, by the Revised Act of 1819, executions bind the real estate of the defendant from the time they are levied; and if the debtor be actually seised, yet during the existence of the right of the plaintiff to take out an elegit, the judgment is regarded as a lien, though there be no statute in Virginia expressly making judgments a lien. By the Revised Statutes of Illinois, published in 1833, a judgment is declared to be a lien on real estate for the period of seven years. In North Carolina, it has been held, that lands were bound from the judgment, provided the

v. Riley, 1 Dana's Ken. Rep. 360. Revised Code of Mississippi, 1824, p. 197. Digest of the Laws of Mississippi by Alden and Van Hoesen, 1839, p. 420. This was also the case in Mississippi according to the statutes referred to, but it is now understood that lands and chattels are by the statute of 1824, bound by the judgment from the time of its rendition. 4 Howard's U. S. Rep. 12.

Hanua v. His Creditors, 13 Martin's Rep. 32.

The judgment is a lien upon the defendant's equitable title, founded upon articles of agreement. Episcopal Academy v. Frieze, 2 Watts' Rep. 16. • Purdon's Dig. 393.

6 Binney's Rep. 135.

• 1 Revised Code, c. 134, sec. 10.

Burton v. Smith, 13 Peters, 464.

creditor sues out an elegit; but they are only bound by execution if the creditor sells the land by fieri facias.*

⚫ Jones v. Edmonds, 2 Murphy's Rep. 43. The fi. fa. is now the uniform process to sell lands, and the elegit is abandoned. The case in Murphy is shaken in Ricks v. Blount, 4 Dev. Rep. 133. It was admitted, that at common law, or at least from the statute of West. 2, a judgment was a lien on land so long as an elegit could be sued out, and the writ displaced all alienations posterior to the judgment, and all extents under junior judgments. But in Den v. Hill, 1 Haywood's N. C. Rep. 72. 95, it was decided, that the purchaser under a junior judgment had preference, if he was the first purchaser, even over the elegit on the prior judgment. This seems to be now the established law, and was a consequence of the statute of 5 Geo. II. giving the fi. fa. against lands. It was said again, in 1 Dev. & Battle, 562, as late as 1836, that the statute of 29 Charles II., ch. 2, sec. 16, was never in force in North Carolina, and that executions were governed by the common law, and bound property from the teste, until the statute of 1828 made executions from a justices' court, bind only from the levy. This was intended to protect the intermediate purchaser, but if the defendant after the test and before the levy, died, the goods were bound in the hands of the executor or administrator, and the officer might go on and levy. It is further held, in that state, (Dobson v. Murphy, 1 Dev. & Battle, 586,) that a purchaser on execution must show a judgment warranting the execution, or no title will pass, though it was understood that under the English law, the purchaser, if a stranger, was not obliged to show a judgment, but only the execution. I apprehend that in New-York, also, the purchaser on execution does not acquire a valid title, if there be no judgment to warrant it. Revised Statutes, vol. ii. 375. But it has been often decided that a bona fide purchaser under a decree or judgment, may, if the court had jurisdiction, hold the property so purchased, not withstanding a subsequent reversal for error, of the judgment or decree. Goodyear v. Ince, Cro. J. 246. Yelv. 179. S. C., and the note thereto of Mr. Metcalf, the learned editor of the American edition. Dater v. Troy, T. & R. R. Co. 2 Hill's Rep. 629. Robertson, Ch. J., Clary v. Marshal, 4 Dana's Ken. Rep. 98. Shackleford v. Hunt, 4 B. Monroe, 263. But this would not be the case if the judgment or decree was not merely erroneous but void. The distinction taken in Ohio is, that on a sale of lands on execution to a stranger to the judgment, the owner on reversal of the judgment must pursue the fruits of the sale in the hands of his antagonist; but where the mortgagee is the purchaser under a judicial decree afterwards reversed, and continues owner until such reversal, the mortgagor is entitled to redeem the land. Hubbel v. Broadwell, 8 Ohio Rep. 120. In Virginia, the lien, as in England, is a consequence of a right to sue out an elegit. There is no statute which expressly makes a judgment a lien upon the lands of the debtor; but during the existence of a right to sue out an elegit, the lien is universally acknowledged. It is not suspended by suing out a fieri facias, but it continues pending the proceedings on such a writ,

с

The judgment becomes a lien in the states of New-Jersey, Delaware, Maryland, Indiana, Ohio, Missouri, Tennessee, South Carolina, *Georgia, Ala- *437

d

and it has relation to the first day of the term, in equity as well as at law. Coutts v. Walker, 2 Leigh, 268. Coleman v. Cooke, 6 Randolph's Rep. 618. United States v. Morrison, 4 Peters' U. S. Rep. 124.

In New-Jersey, the judgment operates as a lien upon the real estate from the time of the actual entry of it on the minutes or records of the court. But if there be two or more judgments against the same defendant, a junior judgment creditor will gain the preference, and be entitled to be first satisfied, by causing an execution upon it to be first delivered to the sheriff. Reeves v. Johnson, 7 Halsted, 29. On a sale on execution, the sheriff executes at once a deed to the purchaser. 1 Green's New-Jersey Reports, 135. ▸ Judgments cease to be liens on real estate, in Indiana, after ten years, unless revived by scire facias. Statutes of 1825.

b

• In Ohio, judgments have always been a lien on real estate, and lands have been liable to be sold on execution, under certain restrictions. The purchaser takes the title as held by the debtor, subject to prior existing liens. Riddle v. Bryan, 5 Hammond's Ohio Rep. 55. But by statute in 1824, it was provided, that if execution was not sued out on the judgment, and levied within a year, without due excuse, the judgment should not operate as a lien to the prejudice of any other bona fide judgment creditor. M'Cormick v. Alexander, 2 Ohio Rep. 65. Earnfit v. Winans, 3 ibid. 135. The same provision was re-enacted in 1831, and is in force to this time. As between the judgment creditor and the judgment debtor, the lien is perpetual. Norton v. Beaver, 5 Ohio Rep. 178. The lien relates back to the first day of the term, in which the judgment is entered. Urbana Bank v. Baldwin, 3 ibid. 65. But the judgment does not bind an equitable interest in the land. See a learned note of the reporter, Mr. Wilcox, in 10 Ohio Rep. p. 74, in which all the distinctions relative to judgment liens in Ohio are fully stated. In Shuee v. Ferguson, 3 Ohio Rep. 136, it was decided, that to take the prior lien out of the statute, the levy must have been made within the year on the property in question. See, also, Thompson v. Atherton, 6 Ohio Rep. 30. If not, then all the judgments stand on an equal footing, and the first levy thereafter will have the preference. The lien of a judgment in Ohio does not attach to after-acquired lands, so as to affect the rights of a bona fide purchaser. Roads v. Symmes, 1 Ohio Rep. 313. Stiles, ex dem. Miller v. Murphy, 4 ibid. 92. Judgments standing five years without execution, become dormant, and the lien ceases. The lien on lands within the county where the judgment was rendered, exists from the first day of the term, and on all other lands within the state from the levy on them. Statutes of Ohio, 1831.

The lien of the judgment may be lost, in Tennessee, by the act of the judgment creditor, so as to let in a younger judgment creditor. The lion in