The Court not being unanimous In their decision, pronounced their opinions seriatim.
Nisret, J. delivering the opinion of the Court.
[1.] Two judgments were obtained by two different plaintiffs against the same defendant, at Common Law ; upon one of them an appeal was entered, upon the other no appeal was entered. Intervening the date of the judgment at Common Law, and the judgment rendered on the appeal, in the appeal case, the defendant aliened his property. After the judgment on the appeal, his property was levied upon and sold. The money arising from the sale, being in the hands of the Court for distribution, the plaintiff in the judgment on the appeal claimed to be let in upon equal footing with the judgment at Common Law, from which there had been no appeal — that judgment contesting, denied the right of the appeal judgment to be so let in — claiming the whole fund upon its own prior and better lien. The Court below ordered the whole fund to be paid to the Common Law judgment. The, *123plaintiff in the appeal judgment excepted, and that order is for the review of this Court.
The judgment of this Court is, that the Circuit Court administered the law correctly. By Statute, all judgments take lien from the term at which they are rendered. This is the general rule. By this rule, how stand these two judgments, when both were rendered at Common Law? Both stood upon the same platform — both acquired a lien — and the liens were equal; and had no appeal been entered upon either, they would have equally bound all the property of the defendant, and would have been entitled to share in the distribution of this fund. But one is appealed from and the other is not. How, then, stands the case? Why, the judgment upon which there is no appeal, stands unaffected by the appeal entered on the other. Its lien is perfect still. It binds all the property of the defendant, whether it shall be aliened or not. It is bound to share with no judgment at the time of its date, not rendered.
But the effect of the appeal on the other judgment is, to prevent the lien which'it, held before the appeal. The appeal opens the whole case — it renews the litigation-before the appellate tribunal. When it reaches that tribunal, the case is before it in its totality. When an appeal is entered, there is no judgment. Whether there ever will be a judgment or not in the case for the plaintiff, depends upon the event of the trial on the appeal. If the trial results in favor of the plaintiff, then, and not till then, is there any lien created for him, except in one single instance and for one single purpose. These exceptions are created by the Act of 1822. That Act not only creates the exceptions which I will state, but it declares all the principles in relation to these two judgments, which I have before stated. For example, it declares, “ that all the property of the party against whom a verdict shall be entered, and a judgment signed thereon, in conformity to the provisions of the 26th section of the Judiciary Act of 1799, shall be bound from the signing of the first judgment, in cases where no appeal is entered.” That is to say, if an appeal is entered, the first judgment does not bind the property of the defendant, from its signing. Now, this judgment at Common Law, not being appealed from, by this very Act, acquired an unrestricted, unlimited, absolute lien upon all this property, and, of course, the money raised from the sale of it, at the time it was first signed. Then *124it had no competitor — now it has none, as we shall see. The full lien which this Statute gave it, when first signed, accompanies it to the time when it seeks its satisfaction before this Court, wholly unimpaired by any thing that I can see. If this Act stopped just here, the inference would be irresistible, that a judgment appealed from, does not bind the property of the defendant from the time of its first signing. But it does not stop here. It declares farther, that in cases where an appeal is entered from the first verdict, the property of the party against whom the verdict is rendered, shall not be bound, except from the signing of the judgment on the appeal. Thus declaring all the propositions I have laid down as to the effect of an appeal. But now comes the exceptions to which I just now referred. The Act proceeds, “ except so far as to prevent the alienation by the party, of his, her or their property, between the signing of the first judgment and the signing of the judgment on the appeal.” By which I understand the Act to say, that the first signing of a judgment which is appealed from, has generally no effect — creates no lien whatever — and that the property of the defendant is not bound until the signing of the judgment on the appeal, except in one instance, and that is where ¿he defendant aliens his property; and except for one purpose, and that is to prevent such alienation. Words cannot be plainer. rThe property of the defendant is not bound, by the terms of the 'Act, except where it is aliened, and to prevent the alienation. Now, because the judgment on the first trial is a judgment for that purpose, it is contended that a lien is created for it on such property as is aliened. This I do not deny; but it is, to my mind, a lien good only against the title of the purchaser. As between him and the plaintiff in that judgment, his title must yield; and when his property is sold, the plaintiff, if not superseded by a better lien, will take the money. The object of the law clearly is, to prevent a fraudulent alienation of property, by defendants, pending an appeal, to the injury of parties plaintiffs. To prevent that, the law gives effect to the first judgment, in case of appeal, and for no other purpose. It gives no effect to it as against other judgments not appealed frpm. They stand with a perfect prior lien, unaffected by this Act. They are neither benefited nor injured by it. Their lien binds the property at all events. 'But the construction contended for, woijld injure them, in all cases where the property aliened is all the property of the *125defendant, and is not sufficient, as in this case, to pay both judgments. This construction impairs the lien of judgments, from which there is no appeal — it holds them in abeyance, so far as aliened property is concerned, and compels them to take, fro rata, with a judgment perhaps six months, it may be six years, younger. But how is it possible to extend the exception in the Statute beyond its terms 1 The rule is, that judgments appealed from, do not bind property, except from the signing of the judgment on the appeal. The exception is, that they do bind it for the purpose of preventing alienation. Now, how can this exception be so enlarged as to give effect to judgments appealed from, not only to prevent alienation, but farther, for the purpose of weakening and limiting the liens of other judgments 1 The idea is plainer thus — the rule is, judgments appealed from, are no judgments but from the signing of the judgment on the appeal. The exception is, they are ju&gments to f recent alienation. How can this exception, in contravention of the rule, make them judgments for another purpose, to wit: for the purpose of holding (in case property is aliened) equal lien with judgments whose lien is older and better by the general Law 1 By all nin the exception proves the rule and excludes One of the consequences of the constructs will be to put it in the power of a defend! entered, by selling his property, to lessen ¡ ing judgment. It gives him the power toj plaintiff on the appeal, even if founded equally to participate in a fund raised from” with a judgment. If that be the true construction, then, in cases like this, the plaintiff on the appeal ought and would desire, that the defendant should sell his property, since, by the sale alone, he gets a claim upon it, equal to the judgment not appealed from ; whilst, at the same time, to prevent such sale is the very object which the Act of 1822 has in view. But the construction which we give to the Act, whilst it maintains the dignity of the judgment not appealed from, gives to that Act a specific and highly beneficial effect. That effect is, pending an appeal, to prevent an alienation of his property by the defendant, to the prejudice of the plaintiff’s claim. account, erty,
Let the judgment below be affirmed.