Stauffer v. Commissioners

Per Curiam.

The transcript directed by the sixteenth section of the act of 1799, was put on the footing of a judgment, in order to give notice of the existence of the lien, and, perhaps, to create it; but it was not intended to operate as a judgment, in order to found the process of execution, which would, in that aspect, have been directed to issue from-the court, and not from the treasurer. There is nothing to show that the treasurer might not seize and sell without any transcript at all, provided the property remained unincumbered in the hands of the collector. And why should not the seizure create the same lien which is incident to every process of execution at the common law 1 Because, say the subsequent creditors, there can be no other lien than the one created by the act of assembly. That lien was created to enable the commissioners to indulge the delinquent for the period limited, without jeoparding the debt, and to give them time to take such measures as might be reasonable, in order to turn the property to the best account, but not to provide the securing of it after seizure. For that purpose, a lien is a necessary and inseparable incident of seizure in execution, by the principles of the common law. Property levied is in the custody of the law, the end of which might be prevented if creditors could subsequently acquire a paramount interest in it. In regard to chattels, this undoubtedly holds, so far as to afford the creditor an opportunity to obtain satisfaction, by a reasonable pursuit of his remedy; and it equally holds in respect to land, which, with us, is a chattel for the payment of debts. The lien of a testatum execution has no other foundation ; and, as regards the expired lien of a judgment, within the county, it is not to be doubted that an execution levied would, under the same limitation, create a new lien, though it may not, under the last act of assembly, continue or extend the old one. By this is meant, that the levy would protect the property for a reasonable time, under the process of execution. That case is strictly analogous to the present, in which, though intervening incumbrances would come in between the expiration of the original lien, yet the incidental lien of the latter is not to be displaced by subsequent incumbrances, without gross delay on the part of the treasurer, in the prosecution of the remedy.

Judgment affirmed.