Barth v. Commercial National Bank , 115 Ill. 472 ( 1886 )

Mr. Chief'Justice Mulkey

delivered the opinion of the Court:

As the judgment under which appellee claims is the oldest, it had precedence over the liens of the other judgments at the time appellee sued out its execution, and as the lien of the execution commenced- before the judgment lien expired, and continued until extinguished by the sale, it follows that by means of the judgment and execution together there was a continuous lien upon the land in question until the sale under appellee’s last execution.

The question for determination, then, is, whether the title of appellee thus acquired is superior to that of Barth, who claims, as we have seen, under a junior judgment, and an execution sale made under it, before the seven years’ lien of such junior judgment had expired. Upon the authority of Dobbins et al. v. First National Bank of Peoria, 112 Ill. 553, and the late ease of Hastings v. Bryant et al., ante, p. 69, this question must be answered in the affirmative. The first of these cases was very ably argued on both sides, and the conclusion reached was after very mature deliberation, and we are fully satisfied with the construction then given to the act of 1872. Some of. the expressions used in the opinion in that ease may not be entirely accurate, but we have no doubt of the correctness of the conclusion there reached. The substance of that decision, so far as it relates to the question now under consideration, is, that where there are two or more judgments of different dates in the same county, against the same judgment debtor, and an execution is sued out on the oldest .judgment, within the year, and returned unsatisfied, an alias .execution subsequently sued out on such judgment, and levied upon the real estate of the judgment debtor, within the seven years from the date of such judgment, will create an execution lien thereon, commencing at the time the execution came to the hands of the officer, and extending one year beyond the lien of the judgment, unless the same is in the meantime satisfied, the legal effect of which execution lien will be to prevent the liens of the junior judgments, or of the executions issued thereon, from so attaching as to give the latter judgments precedence, where the sale under the oldest judgment is made after the expiration of the seven years, and within .the life of the execution lien. As to just how the statute operates in effectuating the legislative intention,, is a matter of but little importance, for whether we say the sale, when made after the expiration of the seven years, but within the life of the execution lien, relates back to the date of the levy, and is thus brought within the lien of the judgment, as is suggested in the Dobbins case, or whether we say the lien of the execution 'issued upon the oldest judgment, and levied ■within the seven years, has, under - the statute, precedence over all liens of junior judgments or of executions issued thereon, the result is the same. This statute, as we understand it, is to , be construed precisely as if the legislature had declared that in a case like this the suing out of the alias execution, and • levying the same within , the seven years; should, for the purposes of a sale by the sheriff, extend the lien of the judgment for one year, in such manner and with such effect as to cut off all intervening liens.

• The'judgment will be affirmed.

Judgment affirmed.