Miller v. Allison , 8 G. & J. 35 ( 1836 )

Dorsey, Judge,

delivered the opinion of the court.

A preliminary question in this case presents itself for our determination. Are we at liberty to consider the exception now taken to the auditor’s account of the 19th of March, 1835, no exceptions to that account having been filed in the court of Chancery ? The 2d section of the act of 1825, ch. 117, prohibits in appeals from courts of equity, the reversal of any decree, upon any exception to any account, unless it shall appear by the record, that such exception was taken or made in the court from whose decree such appeal shall be made. It is true, exceptions were taken below to the account stated by the auditor on the 14tb of February, 1835. But those exceptions were premature; that account made no disposition, or appropriation of the fund in controversy; and therefore furnished no ground for the exceptions to it taken by the parties. Tbe auditor’s account of the 19th of March, we do not regard as one to which exceptions were required to he taken by the act of 1825. It was not the ordinary statement, of the views and opinions of the auditor, upon the rights of the parties, but it was the mere formal ministerial act of that officer, exhibiting a statement of the rights of the parties, as they had been solemnly adjudicated by the Chancellor, in his order of the 4th of March, 1835. It was no part of the design of that statement, to give the parties litigant an opportunity more distinctly to present to the view of the Chancellor, the matters in contest between them. All controversey had been terminated by the previous decision of the Chancellor; so far from its being the duty of the solicitors to have filed exceptions to such ah audit, to have done so we think would have been uncourteous and disrespectful to the Chancellor.

The act of 1825,.presenting no obstacle to the revision of the orders of the Chancellor, which have been appealed from, are the grounds assigned for their reversal sustained ? is the ' next inquiry. It is insisted, that a judgment at law is no lien on an equitable estate in land, and consequently, that the lien acquired by the appellants, through the proceedings under their judgment, entitle them to the payment of their entire claim, to the exclusion of all other creditors. If the first part of this proposition were true, the subsequence would undeniably follow. But the first part of it is not true, and of consequence the second cannot be sustained. In Lee and wife,' and Jordan vs. Stone and McWilliams, 5 Gill and John. 1, this’ court determined, that in equity, a judgment was a lien upon the equitable real estate of the debtor, and this decision was made without reference to the act of Assembly of 1810, ch. 160. By that act, equitable estates in lands were subjected to sale under writs of fieri facias. Adopting by analogy the construction given to the statute of Westm. 2, 13, Ewd. 1, ch. 18, since the passage of the act of 1810, judgments are legal liens, upon equitable real estates, from the time of their rendition, and will be recognized as such in courts of law.’ Should therefore,• a fieri facias on a junior judgment, be levied upon an equitable interest in the lands ©f the debtor, and subsequently, a fieri facias on a senior judgment comes to the sheriff’s hands, the senior judgment must first be satisfied.

The decree of the Chancery court is affirmed with costs. Buchanan, Ch. J. {c I dissent from the proposition advanced in this case, that a judgment at law is a lien at law, upon a mere equitable interest.”

DECREE AFFIRMED.