Verner v. Bookman , 53 S.C. 398 ( 1898 )

The opinion of the Court was delivered by

Mr. Justice Jones.

1 We concur with the Circuit Court that the decree in the case of Fry v. Bookman, administrator, signed and filed September 26, 1879, and entered in the book of abstract of judgments, ascertaining and directing the payment of a final balance against the administrator, in a suit for accounting and settlement of the estate, was a judgment against Carroll Bookman individually. Rhodes v. Casey, 20 S. C., 493.

2 The main question presented by this appeal is, whether this judgment of September 26th, 1879, revived in favor of Mrs. H. I. Benjamin, assignee, September 23d, 1892, was a lien on the mortgaged land herein, in February, 1893, when said land was sold under said judgment by the sheriff to Monteith, who subsequently conveyed to Mrs. Bookman, superior to the lien of the mortgage herein sought to be foreclosed, executed in 1885. The decree of the Circuit Court on this point appears in the official report. At the time the judgment was entered, the act of 1873 was in force. The act, 15 Stat., 498, provided as follows: “Final judgments hereafter entered in any court of record in this State shall constitute a lien upon the real estate of the judgment debtor * * * for a period of ten years from the date of entry of such judgments * * * Provided, further, That the plaintiff in such judgment may, at any time in three years after its active energy has expired, revive the judgment, with like liens as in the original for a like period, by the service of a summons on the debtor, as provided by law, requiring him to show cause, if any he can, at the next term of the Court for his county, why such judgment should not be revived; and if no good cause be shown to the contrary, then it shall be decreed that such judgment is revived according to the force, form, and effect of the former recovery.” We are of opinion that a judgment, revived under this act, within three years after its active energy has expired, has, upon its revival, a continuous lien from the date of its entry, and preserves its rank of priority as against all liens existing against the judgment debtor during the period of its original active energy. We cannot do better than reproduce what Mr. Justice McGowan said on this subject, in Ex parte Witte Bros., 32 S. C., 228, as follows: “We have always supposed that a scire facias on judgment must pursue the terms of the judgment; that it is a continuance of the action and must conform to the record; that the authority to issue an execution on a judgment is derived from the original judgment, which, revived, continues its vitality with lien and other incidents from the time of its rendition. See Ingram v. Belk, 2 Strob., 208; Parnell v. James, 6 Rich., 373; Dougherty’s Estate, 42 Amer. Dec., 326; Irwin v. Nixon, 57 Am. Dec., 559. In the case from 6 Rich., Judge Withers forcibly said: ‘When scire facias is issued between the same parties to a judgment, it is * * * manifestly not an original proceeding, but a continuance of a former suit. * * * If the first judgment be merged, this might greatly disturb the plaintiff’s relative priority of lien, &c.’ It seems to me that any other interpetation of the act of 1873 would necessarily result in great confusion, surprise, and injustice to parties who have been resting upon what was believed to be the acknowledged law — that diligence was rewarded, and that a judgment regularly ‘revived,’ continues to have a lien from its original entry.” In the case of Woodward v. Woodward, 39 S. C., 264, these general views were reaffirmed, but an exception was made in the case of an innocent purchaser from the judgment debtor, and it was held that such a purchaser of the judgment debtor’s land, after the expiration of the judgment’s active energy, but before its revival, was not affected by the subsequent revival. But the Court reiterated the principle announced in this case as follows: “It seems that the doctrine as to the effect of a revival under the circumstances stated, leaves untouched the rights of the patties to the judgment, and the relative rank of all liens acquired before the judgment lost its active energy, and protects only the rights of innocent third parties; in the view as stated, ‘that it would be against principle, and work manifest injustice, to give it this retrospective operation so as to extinguish the intermediately acquired rights of third persons.’ ” The case of Kaminisky v. Trantham, 45 S. C., 393, does not lead to a contrary view. In that case the Court held that a purchaser at a sale under a “junior” judgment, obtained after a “senior” judgment had lost its active energy, the sale being made before the revival of the senior judgment, could not refer his title to the senior judgment so as to defeat the lien of an intermediate mortgage existing before the senior judgment lost its active energy. In that case there was a very vigorous dissent by the Chief Justice, stressing the point that the lien of the senior judgment was continuous from its entry, because revived according to law, and that, therefore, the sale under the junior judgment was referable to the senior judgment. That case was but an application of the doctrine that the revival of a judgment within the time allowed by the act of 1873 could not relate back to the original entry, so as to defeat or affect liens and rights of purchasers created and intervening between the expiration of its original active energy and its revival. The law required the proceeds of the sale of real estate by a sheriff to be applied “to any judgment having prior lien thereon.” The real point in Kaminisky’s case was not so much whether the Pegues or senior judgment was a continuous lien on the land bought by Hay, but whether it was a prior lien to the lien of the junior judgment under which Hay bought. The latter'judgment, while junior in point of time, was prior in point of right and lien to the Pegues judgment, because it was created after the Pegues judgment had lost its energy and before its revival; and, therefore, the sale under the junior judgment having prior lien could not be referred to the judgment, which, though senior in point of its original entry, was not a prior lien. In the case at bar the mortgage lien was created before, not after, the judgment lost its original energy. No liens, or rights of purchasers created during the dormancy of the judgment, are involved in this case. The judgment originally senior in time .and lien to the mortgage, having been reviyed in the time allowed by law, according to the force, form and effect of the former recovery, its revived lien, under the act of 1873, relates back to its original entry, and so preserves its rank of lien according to the status existing when its active energy expired or was suspended. The legislature so construed the act of 1873, for in 1885 it enacted that “such (revival) lien shall not revert back to the date of the original entry of such judgment.” Our conclusion renders it unnecessary to consider the other grounds of appeal.

The judgment of the Circuit Court is reversed.