Dye's Administrator v. Bartlett , 8 Miss. 224 ( 1843 )

Mr. Chief Justice Sharkey

delivered the opinion of the court.

Bartlett had obtained judgment against one William Dye, in his life time, and had sued out execution, on which a forthcoming bond had been given and forfeited, on the 4th of May, 1840. An execution issued on the forfeited bond the 25th of July, 1840, and was placed in the sheriff’s hands on the same dajr. A levy was made, but the sheriff was permitted to return the execution to November term as stayed. Afterwards a venditioni exponas was placed in his hands, by virtue of which he sold the property. Dye, the defendant in execution, died in September, 1840, and administration was granted to appellant in November following, and the estate shortly afterwards reported insolvent. The administrator gave notice to the sheriff not to pay over the money, but the court, on motion, directed it to be paid over to the plaintiff in execution, from which this appeal was taken.

This question is presented: Does the report of insolvency cut out the lien of a judgment creditor, where judgment had been obtained and execution thereon sued out before the death of the intestate ?

By our statute, a judgment becomes a lien from the time of its rendition on all of the defendant’s property. By statute, also, the property of a deceased person becomes liable for his debts from the time of his death. The law declares that when an estate shall be insolvent, the assets shall be distributed amongst all the creditors in proportion to their respective claims. There is also a provision that no suit shall be commenced or prosecuted after an estate is reported insolvent; and a further provision that, if a suit be pending when such report is made, it shall not abate, but maybe prosecuted to judgment, but no execution shall issue, and the judgment shall be filed as a claim against the insolvent estate. A judgment recovered against an administrator, when the estate is insolvent, bears no analogy to a judgment recovered against the intestate. In the first case, a general liability is created by law on all the property of the deceased, from the time of his death, in favor of his creditors generally, which cannot be defeated by a judgment; but in the latter case, the judgment was a subsisting lien before the death of the deceased debtor. This general liability cannot be let in to defeat a fixed lien which had a previous existence.

As a general rule, a prior lien is entitled to prior satisfaction, and we have repeatedly held that a judgment lien cannot be defeated. except by the act of the party who holds it. There is nothing in the statutory provisions which have been mentioned which can defeat a judgment. That provision which declares that when the estate is insolvent the assets shall be distributed in proportion to the debts, can only mean such assets as the administrator can control.

The law has provided that judgment creditors, as to judgments recovered against the administrator, shall only be entitled to a pro rata distribution; but it has nowhere declared that judgment creditors, whose liens had accrued during the life of the deceased, should stand upon the same grounds with other creditors. In such cases the assets come to the hands of the administrator incumbered, and the incumbrance must be removed before general creditors can be let in. There is no difference, in effect, between a judgment lien and a mortgage lien, or deed of trust; they all bind the property.

Suppose, in this instance, the deceased had given a mortgage on his property in his life time, it surely would not be contended that the mortgage creditor must surrender his lien and come in for distribution on an equal footing with other creditors. The law places a judgment creditor in a condition altogether as secure as the condition of a mortgage creditor. In this instance the levy had been actually made before the administrator qualified, so that the property never came to his hands; but I do not know that this made any difference; the lien was fixed and binding in the life time of the deceased, and his death did not destroy it. It cannot be said that this will Operate as a hardship on other creditors. If the individual were living, this judgment takes his property from creditors who had no judgments at all, or only junior judgments, and it does no more now.

In the case of Parker’s administrator v. Whiting’s administrator, we held that a judgment recovered against the administrator before a report of insolvency, was not entitled to be satisfied to the exclusion of other creditors; and that decision was predicated on the law which made the assets liable for debts, which necessarily placed all creditors, who had not acquired a lien before the death of the testator or intestate, on an equal footing. But in this case the lien was so acquired, and cannot be divested.

Judgment affirmed.

Judge Clayton, having been of counsel, did not sit in the case.