Foute ex rel. Ball v. Campbell , 8 Miss. 377 ( 1843 )

Mr. Chief Justice Sharkey

stated the case ,and delivered the opinion of the court.

On this state of facts the question arises, did the stay given by the bank, and the failure to sue out execution for two years thereafter, amount to a waiver of their judgment lien, or a fraud on the rights of subsequent judgment creditors, such as to entitle them to prior satisfaction. It will not be denied that, by giving a stay of execution, an older judgment creditor may postpone his lien. So it was held in the case of Michie v. Planters’ Bank, which has been referred to. The reason of the rule of law seems to be to prevent property from being covered by a fictitious lien, or by a judgment creditor who uses his lien for the benefit of the defendant, to the prejudice of other judgment creditors. Where the facts will not justify the inference that the judgment was fraudulent, or, being bona fide, that it is fraudulently employed to protect the defendants’ property against other judgment creditors, it would seem that the rule of law could have no just application.

It must be remembered that the stay given in this instance was before Foute had obtained judgment; it could not, therefore, have been fraudulent as to him, unless the stay¿ by its terms, was operative after his judgment was obtained. The execution on which the stay was indorsed was returnable to October term, 1837, and it was not continuous in its character. It cannot be construed as extending to any other execution than the one on which it is indorsed, and, immediately after the expiration of that term, the bank might have sued out another execution, without violating the order or promise to stay. Suppose, then, that the lien was suspended during the stay, the suspension ended with the stay, and the lien was revived. How could Foute avail himself of a suspension which had expired before his lien accrued? As to him, such delay was not fraudulent, for he had no lien to be affected, his judgment having been rendered on the 29th of May, 1838, and the stay having expired at October term preceding. To hold, therefore, that this stay was fraudulent as to Foute, would be at once to decide that no plaintiff could stay his execution without surrendering his lien in favor of any one who might subsequently recover a judgment against the same defendant. We think, therefore, that the stay given cannot operate as a forfeiture or postponement of the lien in favor of Foute; and this leaves the case to depend on the single point, did the delay to sue out execution let in the judgment of Foute and entitle it to satisfaction?

On this question, Chief Justice Marshall was very explicit, in the case of Rankin v. Scott, 12 Wheaton, 177. He held, that mere delay in suing out execution had never, of itself, been regarded as a sufficient reason for letting in a junior judgment. In the case of Michie v. The Planters’ Bank, the stay was regarded as a continuous one, which had never been revoked until Michie had levied his execution. The case was decided on the ground that the lion had been lost by the positive act of the party in giving and continuing the stay. The question involved underwent a very full investigation in the case of Russell v. Gibbs, 5 Cow. 390, and, after reviewing all the cases which had been decided in New York, the chief justice came to the conclusion that, in all cases of this description, there must be some act of the plaintiff authorizing the delay, otherwise the lien cannot be regarded as dormant. This rule was fully recognized afterwards, in 4 Wend. 332. In the case of Green v. Allen, 2 Wash. C. C. Rep. 280, it was held, that a judgment lien on real estate was not lost by giving a stay after a levy. The case referred to in 3 Wash. C. C. Rep. is not analogous. The lien was held to have accrued by virtue of the delivery of the writ to the sheriff, and it was considered that the lien was removed by the act of the plaintiff after a levy on personal property. By the levy the property was changed, and by the stay the property was restored; the party having undone what the officer had done. The purposes of the delivery of the process to the sheriff were defeated by the party himself, and, being a positive removal of the lien, it left the property open for other liens to attach immediately. It is obvious that the court considered the. case as turning on the act of the party, and not on a failure to act.

I am not prepared to say that mere delay would not, in any case, operate to postpone the lien. Delay, which evidently shows a design to protect the property against other creditors, or which is continued until other judgment creditors have enforced their executions by levy and sale, would amount to fraud; but it must be such a delay as would justify the inference of fraud. It is impossible for a court to say what lapse of time would justify such an inference. To do so would be to fix a statute of limitations. Each case must, of necessity, depend upon the particular circumstances attending it. In some cases a very short delay, attended by suspicious circumstances, might superinduce a preference in favor of junior judgments.

There is one circumstance in this case which countervails the presumption of fraud. On the execution which was stayed, the sheriff indorsed a credit of thirty-one hundred and fifty-seven dollars; the object was not, therefore, mere protection; this payment may be regarded as at least some evidence of the real character of the judgment. The bank had regularly sued out its executions until this payment was made, and it is difficult to account for such vigilance on any other supposition than that it was determined to obtain a satisfaction. The subsequent delay looks more like the result of accident, or mere omission, than design.

The judgmént must be reversed and supersedeas discharged.