McMahan v. Green , 12 Ala. 71 ( 1847 )

COLLIER, C. J.

By the act of 1807, “ concernihg executions, and for the relief of insolvent debtor's,” it is enacted* that “ No writ of fieri facias, or other writ of execution shall bind the property of the goods against which such writ is sued forth* but from the time that such writ shall be delivered to the sheriff* under-sheriff, coroner, or other officer to be executed ; and for the better manifestation” of the time of delivery, such sheriff, &c. shall indorse on such writ “ the day of the month and year when he received the same;” [Clay’s Dig. 208, >§> 41.] This statute, it has been often said, gives to a fiei'i facias, a lien upon the goods and chattels of the defendant, that ihay be within the county, while it is operative and in the hands of the officer. And in Hester, et al. v. Keith & Kelly, 1 Ala. Rep. 316, it was held, that the act in requiring the indorsement of the reception of an execution* must be regarded as directory, and its non-observance by an officer in whose hands an execution is placed, cannot prejudice a plaintiff. The lien attaches as soon as the execution is received, and the noting upon it the day of the receipt, is only intended to evidence the fact; and it is competent to show the time of the delivery by extrinsic proof.

Where the lien of a fieri facias attaches upon goods and chattels, it will not be lost by their removal to another county — not even in favor of a junior fi. fa. issued to the latter county, if an alias execution has regularly issued as directed by the act of 1828. [Hill v. Slaughter, 7 Ala. Rep. 632; See also, 2 Murph. Rep. 353; 2 Hawks’ Rep. 341.]

A lien, it is said, is neither a jus ad rem, nor a jus in re, it only confers a right to levy the fi. fa. on the particular chattel to the exclusion of other adverse interests arising subsequent to the lien’s attaching ; and when the levy is actually made, it operates retrospectively, so as to cut off intermediate incumbrances. [Meany v. Head, 1 Mason’s Rep. 319; Conard v. Atlantic Ins. Co. 1 Pet. Rep. 386; Jones v. Jones, 1 Bland’s Rep. 448; Arnold v. Bell, 1 Hayw. Rep. 396; Ingles v. Donaldson, 2 Id. 57; Williams’ adm’r v. Bradley, Id. 363; Payne v. Drew, 4 East’s Rep. 523; 1 Smith’s R. 170.] A lien is a tie, hold, or security, upon goods which a man has for some particular purpose — he may hold it until the purpose is satisfied, or the lien is lost, or in some manner waived. [United States v. Barney, 2 Hall’s Law Jour. 128.] The prior lien is entitled to prior satisfaction, unless it be intrinsically defective, or displaced by some act of the party holding it, which shall postpone him at law or in equity; and mere delay, it is said, is not sufficient for that purpose. [Rankin v. Scott, 12 Wheat. Rep. 507; see also, 3 Harrington’s Rep. 37; 4 Harrison’s Rep. 166.]

In South-Carolina it has been held, that executions bind the property throughout the State, from the time they are entered in the sheriff’s office, Yet the plaintiff may lose his priority by delay. [Woodward v. Hill, 3 McC. Rep. 241,] So, in Porter v. Cocke, Peck’s Rep. 30, it was decided that although a judgment was a lien upon the lands of the defendant, this lien may be lost; and a contract to stay execution until the next term will suspend it with regard to other judgment creditors. [See also, 4 Dall. Rep. 450; 1 Watt’s R. 9.]

Whether the stern principles of law or international comity require one country to recognize the preferences or priorities of creditors in another, as established by the legislation oí the latter, is perhaps a question about which foreign jurists are not fully agreed. But it may be stated as the result of the doctrine taught by most of them, that the proper forum to decide upon all questions of the preferences and priorities of creditors, is the place of the domicil of the debtor; and' that the law of that place, and not the law. of the place of the contract, is to govern in all cases of such priorities and preferences, in respect to moveables situated in his place of domicil. But as to moveables situate elsewhere, as well as to immoveables, the lex rei sitae is to govern. A preference arising solely from the authority of the law, has no effect upon property not subjected to the law maker, when the controversy respects the interest of third persons, or of other creditors, who have not contracted in the place, the laws of which give the preference. [Story’s Confl. of Laws, 270.] Again, whenever the lex loci contractus and the lex fori as to conflicting rights acquired in each, come in direct collision, the comity of nations must yield to the positive law of the land. In tali conflictu magis est, ut jus nostrum, quam jus aliomm servemus. [2 Kent’s Com. Lect. 39.]

Upon the general principles as to the operation of contracts, and the rule that moveables have no locality, it is said that the privilege, hypothecations and liens of creditors ought to prevail over the rights' of subsequent purchasers and creditors in every other country. That having once attached rightfully in rem, they ought not to be displaced by the mere change of local situation of the property. [Story’s Confl. of Laws, 335, $ 402.]

The principles we have stated as sustained by judicial decisions, or the opinions of elementary writers, furnish the most apt analogies for the decision of the case at bar of any we have been able to find. From these it follows, that the delivery of a fieri facias to the sheriff, does not invest the plaintiff in execution with a right to the personal property of the defendant, against which it is sued forth. It merely gives to the plaintiff a lien paramount to all junior execution creditors, if it is promptly enforced, and if the debtor incumbers or sells it, the incumbrancer or purchaser will take it subject to the lien.

We have seen that the removal of chattels from one county to another, will not deprive a party of the lien of an execution which attached in the former, if an alias fi. fa. has regularly issued as directed by the statute of 1828. This’ statute adjusts the priorities of execution creditors, and declares, that “ if a term shall not have elapsed, and an alias shall be delivered to the sheriff before the sale of property under a junior execution in favor of another creditor, the lien shall continue, notwithstanding the alias may not have been delivered until after such junior execution; but if such alias shall not be delivered until after the sale under such junior execution, the lien of the latter shall prevail.” This diligence, it will be observed, is necessary to keep alive the lien, where there are other creditors who are seeking to subject the debtor’s estate to the satisfaction of their executions. But after the lien has once attached, the plaintiff cannot be required to employ the same diligence in order to continue it against the defendant, or a purchaser from him. In Claggett v. Foree, 1 Dana’s Rep. 428, it was held that the temporary removal of property would not free it from a lien which had been acquired by the delivery of a fi. fa. to the sheriff. If without connivance or fault on the part of the plaintiff in execution, the defendant removes his goods from the State, the lien would be suspended during the time they were abroad, but upon their being brought within it again, either by the defendant or a purchaser from him, the lien would revive and relate back to the time when it first attached. This conclusion seems to result from the proposition that it cannot be lost without fault on the part of the plaintiff, or unless there be such a want of diligence as gives a prefernce to a junior execution. The fact that the property had been sold while it was abroad, by the defendant, cannot destroy the lien; for he has no right to make an unincumbered title to it while the execution remains unsatisfied, and its lien unimpaired.

As there is not even jus ad rem, perhaps the property could not be pursued into a foreign jurisdiction; to authorize proceedings there, it is possible that there should be a levy, which gives jus in re. But however this may be, the conclusion we have expressed will not be affected. If a sale was made abroad, under judicial process against the defendant in execution, we incline to think that the title of the purchaser under that process would prevail against the lien of the fi. fa., if the property was removed into this State. But this would depend upon the effect of the foreign law, and would be altogether different in principle from the case of a voluntary sale. So if the property should remain abroad a sufficient length of time for the statute of limitations to bar an action of detinue, it is quite probable that the purchaser from the (defendant might invoke the statute, and thus defend his ti~ tie. But the case of the claimant, as presented by the record, is unassisted by any of these circumstances, which it is intimated might possibly defeat the plaintiff’s lien. It presents the naked question, whether, if a lien attaches upon chattels, in virtue of a fi.fa., and they are removed from the State and sold by the debtor, and afterwards brought into the State, can they be seized and sold under an alias fi. fa. issued under the same judgment, so as to defeat the title of the foreign purchaser. Upon this point our opinion has been expressed. The judgment is consequently reversed, and'the cause re-’ manded.