Ray v. Thompson , 43 Ala. 434 ( 1869 )

PETEES, J.,

(after stating facts as above.) — The law, as it is found in the Code of 1852, makes a fieri facias a lien only in the county in which it is delivered to the officer for execution, on the lands and personal property of the defendant, subject to levy and sale, from the time it is received by the person commanded to execute it. This lien continued as long as the fi.fa. was regularly issued without the lapse of an entire term. And this was the case, though the defendant should die after judgment, and after the writ came into the officer’s hands; unless the estate of the defendant was declared insolvent by the probate court in regular course of administration. In this latter event, this lien was dissolved. And a party having a debt in judgment against an insolvent estate, was compelled to seek his remedy. for its payment in the court of probate, upon a distribution of the insolvent’s estate amongst his creditors, pro rata. This was the settled law up to the event of secession.—Revised Code, §§ 2872, 2275; Edwards v. Gibbs, 11 Ala. 202; Burk’s Adm’r v. Jones & Allen, 13 Ala. 167; Fitzpatrick v. Edgar, 5 Ala. 499; Hale, Adm’r, v. Cummings & Spyker, 3 Ala. 398; Lamar v. Gunter, 39 Ala. 324; McEachin v. Reid, 40 Ala. 410; King v. Kenan, 38 Ala. 63; Curry v. Landers, 35 Ala. 280; Dailey v. Burke, 28 Ala. R. 328.

During the late rebellion, an enactment was passed by the legislature of the rebel government then having military control of the State, which purports to have been approved on the 10th day of December, 1861, by which the then existing judgments, and judgments thereafter rendered in all the courts of the State, were made liens on the property of the defendants therein. By this enactment, it was declared, that “ no lien of any judgment, decree, or forfeited bond, shall be lost or impaired by the death of the party bound thereby, after the approval of this act, nor by the insolvency of his or her estate.” — Pamph. Acts, 1861, No. 33, p. 33, § 1. And again, in 1866 a second enactment was passed by the legislature then acting as the general assembly of this State, which purports to have been approved on the 20th day of February, 1866, which repeals the enactment of the 10th of December, 1861, with this proviso: “ Provided, that this act shall not so operate as to repeal or destroy any lien of any judgment, decree, or execution now in existence.” — Pamp. Acts, 1865-66, No. 57, pp. 81,86, § 9. The Revised Code makes judgments of the courts of record in this State, existing on the 19 th day of February, 1867, liens on all the property of defendants therein, which is subject to levy and sale; and it preserves the liens of all judgments, decrees or executions in existence on the 20th day of February, 1866. — Revised Code, §§ 2876, 2877. The Revised Code, with certain modifications, has been adopted by the present State government as the law of the commonwealth. — Act approved July 29, 1868, Pamph. Acts, 1868, p. 7. By this Code, “ all acts of a public nature, designed to operate upon all the people of the State, and not embraced in this Code, are repealed, unless otherwise directed in this Code.” — Revised Code, § 10. So much, then, of the enactment of the 10th of December, 1861, as has been above quoted, the same not being embraced in the Revised Code, is repealed. If, indeed, it ever had any such legal validity as can be recognized in this tribunal, as now constituted, of which there are well founded and grave doubts, no such validity can now be given to it. The lien of a judgment is a right given by law, and it depends upon the law creating it. This law may be repealed, and when it is so repealed, the lien that depended upon it falls with it. The lien here insisted on can not, therefore, now derive any aid from this enactment. Nor is it supported by the law as it stood before the event of secession, because execution has not been regularly issued, as the law then required.—Revised Code, § 2875; Fitzpatrick et al. v. B. & W. Edgar, 5 Ala. 499, 503; Walson & Simpson v. Simpson, 5 Ala. 233. The lien which is preserved by the Revised Code is the lien of the judgment without this privilege of immunity from its loss, or its being impaired by the. death of the defendant in the judgment, or the insolvency of his estate. If this privilege is gone, then the lien must be kept in force like that of any other judgment, whether the defendant be alive or dead; and it fails for the same reason, that that of any other judgment would fail, while the defendant was still living. This being so, the lien of this judgment failed when the judgment itself failed. The judgment is the principal thing, and the lien but a “ qualified right ” depending on it. — 5 Ala. 499,503. Moreover, the judgment was a claim against the deceased defendant, which, like any other claim, became extinct, or was “ forever barred,” unless it was regularly presented to the administrator, or filed in lieu of presentation, as required by law; or, in case of the insolvency of the estate, it became barred by effect of the statute of non-claim, unless it is verified and filed, as is required by the statute, in case of any other claim.

This construction leaves all the statutes upon the subject of the administration of decedent’s estate in harmony with each other. It does not require that one section shall suspend or constructively repeal another; and it leaves all the creditors of such estate upon an equal footing, except those who have preferred claims. And in this case, equality is justice, and justice is equity. And besides, it may be said that this construction also harmonizes with the former decisions of this court on similar questions.—Revised Code, § 2196; Murdock v. Rousseau’s Adm’r, 32 Ala. 611; Hale’s Adm'r v. Cummings et al., 3 Ala. 398; Bell's Adm'r v. Andrews, 34 Ala. R. 538; Puryear v. Puryear's Distributees, 34 Ala. 555; Revised Code, § 2239; Kinney v. Mallory, 3 Ala. 626. The bill is devoid of equity. The effect of the decree of insolvency is to transfer to the court of probate the exclusive jurisdiction of all claims against the estate, and upon final settlement that court has full power to adjust them when they are merely legal demands, as is the case with the claim in this instance.—Edwards v. Gibbs, 11 Ala. 292; Revised Code, §§ 2205, 2206, 2208, 2209, 2211.

The decree of the chancellor, being in conformity with these views, is affirmed; and the appellant, and his security on his appeal bond, wall pay the costs of this appeal in this court, and in the court below.

Note by Reporter. — The foregoing opinion was delivered at the January terra. On a subsequent day of the term, appellant applied for a rehearing. The application was held under advisement until the June term, when the following response was made thereto.

PETERS, J.

In this cause the appellant, Ray, petitions the court for a rehearing. In his application here, as in the original ease, he bases his right on a certain enactment of the rebel organization holding military control of the territory of this State during that part of the year 1861, after the 11th day of January, until its close. The enactment referred to is known as “ An act to regulate judicial proceedings,” which purports to have been approved December 10th, 1861. — Pamphlet Acts, 1861, No. 33, p. 42, et seq. So much of this act as has relation to this case, is quoted in the opinion, now sought to be reviewed.

In that opinion, it was intimated that the act relied on was unlawful, and, consequently, without validity. Since then, the decision of the supreme court of the United States in Texas v. White et al., leaves this question no longer doubtful. To use the language of the chief-justice, speaking for the court in that important case, “ the legislature of Alabama, at the time of the passage of the act referred to, constituted one of the departments of a State government established in hostility to the constitution of the United States, and cannot be regarded, therefore, in the courts of the United States as a lawful legislature, or its acts as lawful acts.” The decision in that case turned upon that very principle. What happened in Texas, happened also in this State during the late rebellion. If a law of the insurrectionary government of Texas was invalid, became it was passed by a legislature, which, at the time of its passage, “ constituted one of the departments of a State government established in hostility to the constitution of the United States;” for like reason, a law similarly passed, must be invalid in this State. This is the case with the act of 10th December, 1861, to “ regulate judicial proceedings.” It is an unlawful act, and is, therefore, invalid.—Texas v. White et al., January term supreme court of the U. S.; Reynolds, Auditor, v. Taylor, June term supreme court of Alabama.

But, besides this, the act referred to bears upon its face the plain expression of a purpose to give aid and comfort to those inhabitants of this State, who, at the date of its passage, were engaged in carrying on war against the government of the United States, in order to destroy the Union. This purpose was traitorous and illegal. In the case of Shortridge & Co. v. Macon, in the United States circuit court for North Carolina, decided at Ealeigh, on the 17th day of June, 1867, Chief Justice Chase, who delivered the opinion of the court, says : “ War, therefore, levied against the United States by citizens of the republic, under the pretended authority of the new State government of North Carolina, ¡or the new central government which assumed the title of the ‘ Confederate States,’ was treason against the United States.”—Pas. An. Con. U. S., p. 211. This unlawful purpose appears from the 2d, 3d, 4th, 5th, 6th, 7th, 8th, 9th, 13th and 14th sections of said unlawful act. The 2d section of this act authorizes the defendants, in judgments invested with the peculiar lien,' supposed to be acquired under said act, to “ tender ” payment of such judgment in “ bonds or treasury-notes of the Confederate States, and compels the creditor to receive such bonds or notes at their par value, or the lien insisted on is “ discharged or prevented.” The whole act is an attempt to force the circulation of the “ bonds and treasury-notes ” of the .so-called Confederate States upon the people of this State, for the purpose of aiding the prosecution of the war of the rebellion against the United States government. The whole act is therefore tainted with an illegal and unconstitutional purpose. This would make it utterly void, were it not otherwise wholly without any legal force as a law. And if the 1st section escapes this patent purpose, manifested in the other sections, it falls under another law equally fatal to its honest repute. Nocitur a sociis. It is caught in bad company; and it is not wholly free from the leprosy of disloyalty which infects its friends. It was an enactment hostile to the government of the United States, and no right which can be recognized in this tribunal, can be founded on it.—Shortridge & Co. v. Macon, supra.

Tbe dissolution of the lien of judgments by the death of the defendant, and the insolvency of his estate, is an old doctrine of the courts of this State. We are not aware that it has ever been seriously questioned, until at present, by the eminent counsel for the appellant. The authorities cited in the main case, we think, clearly show this. It has also been long settled that judgments are barred by the statute of non-claim, if they are not properly presented as the law requires, of all claims against an insolvent estate.—Ready, Adm’x, v. Thompson, Adm’r, 4 S. & P. 52.

But beyond this objection to a rehearing, it may be very seriously questioned, whether the judgment of Ray is worth more than the law, upon which he bases his lien to secure its payment. The judgment was rendered on September the 12th, 1863. It is known to the court as a part of the judicial history of the State, that the court in which this judgment was rendered, constituted a portion of “ one of the departments of a government established in hostility to the constitution of the United States.” It has been settled that the acts of the legislature of such a government are invalid.—Texas v. White et al., supra. If this is admitted, and it seems to me that it cannot be denied, it cannot well be conceived how the judgments of the courts of such a government can be better or more valid than its laws. The reasons which invalidate the one, assail the other also. Both are but parts of a whole; and if the whole is bad, as a general principle, the parts cannot be good.

Whether such judgments have been validified, or can be validified as judgments, by any legislative enactments of the rightful government since its restoration, is yet an open question in this State. They are, beyond all doubt, the judgments of the courts of a hostile, unlawful, and traitorous organization, by whatever name or title it may be called. The legislative, the judicial, the executive, and the military departments of the supreme government, have all proclaimed this, in language not to be mistaken or denied. And the rightful government of this State, since its restoration, has done the same.—Texas v. White et al., supra; Shortridge & Co. v. Macon, supra; Paschall’s Ann. Const. U. S., p. 211; Coleman v. Chisholm, January term, 1869, of this court; Reynolds v. Taylor, arguendo, at the present term; President Johnson’s proclamation, May 21, 1865; Reconstruction act of Congress, March 2, 1867, Statutes, at Large; Governor Patton’s proclamation, February 13, 1866.

The court, without assenting to all the reasoning of this opinion, concur in the result. The rehearing is, therefore, refused, at the cost of the appellant, Eay.