N. T. Horton v. . R. R. McCall

Read® J.

It is settled by a series of decisions, that ait execution creates alien, on both real and personal property, from .its teste. Harding v. Spivy, 8 Ire. Eq., 63.

It is also settled, that if there is no levy or sale under the ■first execution, but the same is returned to court, and another is issued upon the same judgment, the lien of this second, relates back to the teste,_ of the first. And so on with any number, regularly and consecutively issued.

But still the question remains ,what sort of lien is created, and what is its effect ? It is settled that the lien is such as to prevent the debtor from selling, so as to defeat that debt. Jones v. Judkins, 4 D. & B., 456.

But still it seems to be only a lien, and does not divest the title out of the debtor; nor invest it in the creditor ; nor in the officer.

It would seem, therefore, that the lien does not affect the title, and amounts only to a ehaige which the law imposes upon the property for the purpose of satisfying its process. And so it seems that while this lien exists, if the creditor delays to make the lien specific by a levy, (taking hold of the property if it be personalty, or naming and and describing it if it be realty,) and selling it, a junior execution can come in and take the property from under the prior lien and sell it for the satisfaction of the junior. It is true the reason given for this, is, the delay of the first creditor, which operates as a fraud upon other • creditors ; and therefore the law withdraws the care which it had assumed over, and the charge which it had imposed upon the property in favor of the senior creditor, and transfers them in favor of the junior creditor. But then, if the senior creditor had any property in the goods of the debtor upon which his execution had been a lien, the law could not thus transfer his property to another.

The question in our case is, whether the homestead and personal property exemption laws, prevent the taking and selling the property of the debtor, which had become subject to the lien aforesaid, i. e., the lien of an execution tested, but not levied, before the law was passed.

We have already decided, that the debtor’s property might be exempted, and that it was exempted by the said laws from liability for any of his debts. But that was upon the ground that debts were not liens upon property, either general or specific. Hill v. Kesler.

But this case differs from that in this : The creditor has taken one step towards subjecting the debtor’s property, and although the debtor’s property has not been appropriated, or taken hold of, yet it was hedged in, in so far that the debtor himself could not dispose of it so as to defeat that debt; yet, he could use it, and consume it as before, and another more vigilant creditor .might take it.

In McKeithan v. Terry, we decided that where there was a levy, it created a specific lien, or vested right, which the homestead law did not interfere with. If we did not go too tar, in that case, we are satisfied that we cannot go farther, in favor of the creditor, without doing violence to the Constitution and the act of Assembly. Here there' was no levy; and although there was a lien, such as we have described by the execution, from its teste, yet it did not divest the property out of the debtor, and was not even specific, as in McKeithan’s case, but was general; and, therefore, the property was subject to the exemption laws aforesaid.

There is ko ERROR. Affirmed.