Smith et al. ad. vs. Robinson.

[ JANUARY ter reasonable notice to quit had been first given, whereas, according to the foregoing views, no such notice would be necessary after a failure to pay, but the vendor may, at once, by a recovery in that action, possesses himself of the rents and profits of the mortgaged estate, which he could take and hold until, by this means, the incumbrance might be discharged. After which, equity would compel a conveyance to the purchaser or his assigns, if proceeded for within the period of limitation. And nothing short of a bill to redeem could prevent such a recovery in ejectment.

And having now disposed of this question, those remaining in this case are of easy solution.

That discussed by counsel, as to consequences that would flow from a disannulment of the original contract of purchase and sale, had no relevancy in any aspect in which this case might have been considered, because there was no pretence that these contracts were void ab initio, and there is no evidence at all that the vendor ever desired or attempted to avoid them, but to the contrary.

Cummings, as the assignee of the mortgager, owning the equity of redemption, was before foreclosure regarded in a court of equity as the owner of the land, and as such had a clear right not only to encumber but to alienate it, subject of course to the mortgager's lien. And having encumbered it, and provided for its sale in the deed in trust to Marr and Hardy, which was duly recorded under our statute, (Digest, p. 269, sec. 30,) any after incumbrance or sale of it by him was necessarily subordinate to this incumbrance by the trust deed, because that, having been duly registered, operated as constructive notice to all the world. Hence, Smith's rights were subordinate to Robinson's, who purchased the mortgaged subject at the trust sale, encumbered, as it still remained by the mortgage lien. And he, being now the sole owner of the equity of redemption, had a right, upon payment of principal and interest, to redeem as against the original vendors, who, in the mean time, had parted with the legal title to Smith. And if Smith's equity had now been equal to Robinson's,

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Trapnall vs. Richardson, Waterman & Co.

having the law on its side, it might have prevailed; but it was not, because not only was Robinson's prior in point of time, but Smith had meddled himself in the matter with not only constructive notice of the incumbrance out of which Robinson's rights grew, but under the circumstances, as the evidence shows, which would have put any prudent man upon inquiry. Therefore, Smith had no equity as against Robinson beyond the refunding of the principal and interest of the money he had paid out to get the legal title, and this Robinson had tendered to him in cash before the commencement of any proceedings, and therefore the decree of the court is in no respect erroneous as to Smith, and those who claim under him, and the other party has not complained here.

Let the decree be affirmed with costs.

TRAPNALL VS. RICHARDSON, WATERMAN & Co.

The lien of a judgment upon land, is paramount to that of a subsequent mortgage.

The law must now be regarded as well settled, that the lien of a judgment in the federal court, is, by analogy to the State laws, co-extensive with the territorial jurisdiction of the court.

Where one creditor has a judgment in the federal court, constituting a lien upon all the lands of the defendant in the district, and another creditor has a junior mortgage upon a part of these lands, and the judgment creditor sues out execution, and the marshal levies it upon lands not included in the mortgage, the levy is no such satisfaction as will postpone the lien of the judgment upon the other lands to that of the mortgage; and, if the lands levied upon be sold, and fail to satisfy the judgment, the mortgaged lands may be

Trapnall vs. Richardson, Waterman & Co.

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sold, under an alias execution, to complete the satisfaction of the judgment, if its lien has not, in the mean time, expired.

The point really decided in Anderson vs. Fowler, (3 Eng. R. 389,) was that where an execution is sued out, and levied upon land, it is so far a satisfaction, that the plaintiff, in the judgment, cannot sue out other process, and make an additional levy upon the property of the defendant, until the first levy has been disposed of, and fails to satisfy the judgment, and that where such process is thus improperly sued out, it may be superseded, or more properly recalled or quashed by application to the court from which it issued; and this is regarded as the law, but so much of the opinion of the court in that case as goes beyond this, is treated as the more dictum of the judge who delivered the opinion.

A subsisting levy upon land, is no bar to a revival of the judgment, by scire facias, to extend its lien, or to substitute a representative on the death of a party to the judgment, and the case of Anthony vs. Humphries, (4 Eng. 176,) is, in effect, overruled.

A levy on land is not an absolute satisfaction, and cannot be pleaded as such; but the plaintiff having a valid subsisting levy on land, or goods, may not abandon it against the will of the debtor, and tax him with costs of further execution, and if he attempts it, it would be the duty of the court from whence the alias process so irregularly issued, to quash or recall it, on the application of the defendant.

Whiting & Slark vs. Beebe, (7 Eng. 421,) when properly understood, does not go beyond the doctrine herein declared.

A levy upon land within three years from the date of the judgment, will not continne the lien of the judgment beyond the three years; and so much of Biscoe et al. Trustees, &c., vs. Watson et al. (ante,) as so decides, is overruled.

Appeal from the Chancery side of Jefferson Circuit Court.

F. W. & P. TRAPNALL, for the appellant. The only principle involved in this case, is whether a levy on land extinguishes the general lien of the judgment, and is a satisfaction to the extent, at least, of letting in and giving precedence to junior liens. In Anderson vs. Fowler, (3 Eng. 394,) this principle is adjudged.

That a levy on personal property is a satisfaction, has been adjudged from Clark vs. Withers in Salk. to the present day, and decided in Walker vs. Bradley, (2 Ark. 593,) and the reason is, that the defendant is thereby deprived of his property for if the property be retained by, or restored to him, it is no satisfaction.

That this reason does not apply to the real estate, is clear, and

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Trapnall vs. Richardson, Waterman & Co.

is so adjudged in every State, except in Kentucky and Indiana. In the latter State, the principle was first laid down in case of a levy on personal property, and then made to apply to levies on land without drawing the distinction between the two cases. Hopkins vs. Chambers, 7 Mon. 262. McGennis vs. Lillard's Ex., 4 Bibb. 491.

The attention of the court of Kentucky seems not to have been directed to the distinction between a levy on land and personal property: but the distinction has been taken and maintained most conclusively in New York: Shepperd vs. Rowe, 14 Wend. 160. Green vs. Burke, 23 Wend. 490. 4 Hill 621. In Pennsylvania— 1 Penn. 425. Patterson vs. Swan, 9 Serg. & R. 16. In OhioReynolds vs. Rogers, 5 Ham. 173. In Maryland-5 Gill & John: 102. In Mississippi-Smith vs. Walker, 10 Sm. & Mar. 584. In Tennessee-Hogshead vs. Caruthers, 5 Yerger 227. In Massachusetts-Ladd vs. Blunt, 4 Mass 403. In Illinois-3 Scam. 612. In North Carolina-2 Dev. Eq. 525. In Michigan-2 Mich. 150. Idem 379.

The lien of a judgment, and the lien of an execution, are two separate things and very distinct from each other. The judgment binds all the lands of the defendant within the jurisdiction of the court proprio vigore; the execution, when it comes to the hands of the sheriff, is a lien on all the property of the defendant, and this is independent of the lien of the judgment.

The judgment of the federal court was a lien on all the lands of the defendant to the extent of the jurisdiction of the court. Taylor vs. Thompson, 5 Peters 358. Manhattan Co. vs. Evertson, 6 Paige 467. Sellers vs. Corwin, 5 Ohio 398. Shrew vs. Jones, 2 McLain 84. 1 Peters R. 442. 1 Peters R. 442. Byers et al. vs. Fowler, 7 Eng. R.

276.

The judgment having been rendered before the mortgage was recorded, has a prior lien. Mechanics' Bk. vs. Gorman.

The execution having been levied on the lands during the lien of the judgment, although the sale is made after its expiration, yet it relates back to the date of the levy. Trustees R. E. Bank vs. Hubbard & Watson, 7 Eng.

Trapnall vs. Richardson, Waterman & Co.

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PIKE & CUMMINS, contra.

Chief Justice WATKINS delivered the opinion of the Court. This was a bill in chancery, by the appellees, to foreclose a mortgage, executed to them by DeBaun and wife, to secure the payment of a debt due to them by DeBaun-to which the appellant was made a party defendant, upon the allegation that he claimed some title to the lands mortgaged, and he by his answer asserted title in himself superior to the mortgage by his purchase of the land under a prior judgment.

The mortgage was executed, acknowledged and recorded on the 1st June, 1842, upon the west-half of section twenty-five, in township six south, range eight west-320 acres, and the westhalf of the north-east quarter of section fourteen, in township six south, range nine west-80 acres, all in Jefferson county.

On the 25th May, 1842, Louis Chittenden recovered judgment against DeBaun, iy an action of debt, in the circuit court of the United States for this district.

Execution issued on this judgment on the 8th June, 1842, and was levied on various tracts of land in Pulaski county, which were advertised and sold.

On the 24th March, 1843, an alias execution was issued, and was returned levied on two tracts of land in Jefferson county, but not in time to advertise and sell, one of them being the southwest quarter of section twenty-five, in township six south range eight west-160 acres, a part of one of the tracts embraced in the mortgage, upon which a venditioni exponas issued on the 26th of May, 1843, and sale was made by Newton, as marshal, on the 9th October, 1843, at which the appellant became the purchaser, and the two tracts last referred to were conveyed to him by Rector, as marshal, the successor of Newton, by deed duly acknowledged and recorded.

On the 11th December, 1843, a pluries execution issued, and was levied on various tracts of land in Saline county, which were sold, and was also levied on the north-west quarter of section