Waltermire against Westover and another

Waltermire against Westover and another. Filing a transcript of and docketing a judgment rendered by a justice of the peace in the county clerk’s office, pursuant to the Revised Statutes (2 B. S., 247, § 128), rendered it a lien on real estate coextensive in timo with judgments recovered in the court of common pleas. The statute of limitations (2 B. S., 295, § 18), which harred an action on such a judgment after six years, did not extinguish it or destroy its lien where it had been docketed. Accordingly where a transcript of a judgment recovered before a justice on the 25th of July, 1837, was filed and docketed in the county clerk’s office on the 27th of the same month, and an execution was issued to the sheriff on the 10th of July, 1813, who in July, 1844, sold thereon real estate and afterwards executed a deed to the purchaser; Held, that he acquired thereby the title of the judgment debtor. Ejectment to recover premises situate in Columbia county, tried before Mr. Justice Harris at a circuit court held for that county in 1852. Both parties claimed title under Robert Westover the former owner. The plaintiff proved that a judgment was recovered in the supreme court and docketed in Columbia county the 15th of December, 1847, for over $2000 in favor of one I Webster against Robert Westover ; ánd that in July, 1849, an execution on the judgment was duly issued upon which the sheriff of Columbia county in the ensuing November sold the premises in question to the plaintiff in this action, who received from the sheriff a certificate of such sale. After the expiration of fifteen months the sheriff executed a conveyance of the premises to the plaintiff; and this action was brought to recover possession. The defendant proved that on the 25th of July, 1837, a judgment was recovered by confession before a justice of the peace of Columbia county for $247.17 in favor of one Reed against Robert Westover; and that a transcript of the judgment was duly filed and the judgment docketed in the office of the clerk of Columbia county on the 27th of July, 1837. That an execution on this judgment was issued by the clerk on the 22d of June and delivered to the sheriff of Columbia county on the 10th of July, 1843. On the 12th of July, 1844, the sheriff by virtue of this execution sold the premises in question and they were purchased at such sale by Reed, the plaintiff in the execution, to whom a certificate of sale was issued. In May, 1850, the sheriff executed a deed of the premises to Reed in pursuance of the sale and certificate which was then recorded. Reed afterwards conveyed the land to the defendant David L. Westover. The counsel for the plaintiff insisted that the sale and conveyance to Reed passed no title, inasmuch as the judgment rendered by the justice was more than six years old and barred by the statute of limitations and of no validity when this sale was made. The court ruled otherwise, and ordered a verdict in favor of the defendant, and the counsel for the plaintiff excepted. Judgment was entered in favor of the defendants and affirmed at a general term in the third district. The plaintiff appealed. N. Hill, Jr., for the appellant. I. The justice’s judgment under which the defendants claim, had ceased to be a lien when the sale under it took place, and Reed acquired no title. (2 R. S., 296, § 1, subd. 2; Young v. Remer, 4 Barb. R., 442; Johnson v. Burrill, 2 Hill’s R., 238; 1 Kern. R., 71, 2, and cases there cited.) 1. Neither debt nor scire facias could be maintained on the judgment after six years from the time of its rendition (2 R. S., 296, § 1, subd. 2; 2 Hill’s R., 238; Connigal v Smith, 6 Johns. R., 106.) 2. It would be anomalous to allow a judgment to be enforced by execution, after the party had lost all right to maintain debt or scire facias on it. (See the cases above cited ; Young v. Renter, 4 Barb., 442.) 3. After six years, the force of the judgment ceased for the purpose of creating the lien ; and so as to continuing it. (Johnson v. Burrill, 2 Hill’s R., 238; Young v. Remer, 4 Barb. R., 442.) 4. If this be not so, the lien may be created at any indefinite period; there being no limitation except that of six years. (2 R. S., 247, 8, §§ 127, 128.) II. Even if the judgment could have been revived after the six years, this was not done; and being lifeless at the time of tile sale, the execution was equally so. (1 Kern. R,, 71, 2, and, cases there cited.) III. In any view, when the plaintiff’s judgment was obtained, Robert Westover was the legal owner of the land'; especially as there was nothing to show that Reed had ever paid the purchase money. • (See points 1st and 2d, supra; Catlin v. Jackson, 8 Johns., 550,1; Young v. Withers, 8 Dana's R., 167; Lathrop v. Furguson, 22 Wend., 116,120.) H. Hogeboom for the respondents. The Code of Procedure differs from the Revised Statutes on this subject. It declares that from the time of the docketing in the county clerk’s office “the judgment shall be a judgment of the county court.” (Code, $ 63; sea also % 90 of the Code.) [MAJORITY — Selden J.] Selden J. The only question presented in this case is, whether the justice’s judgment under which the defendant claims title, had ceased to be a lien, before the sale by the sheriff under it. The lien of a judgment in the common pleas ceases as against purchasers in good faith and subsequent incumbrances at the end of ten years from the time of docketing; but continues as against the defendant himself, until the stautory presumption of payment arises at the end .of twenty years. By § 128 (2 R. S., 248), it is provided that a justice’s judgment docketed by a county clerk “shall be a lien on the real estate of the defendant within the county, in the same manner and with the like effect as if such judgment had been in the court of common pleas.” If this were the only provision bearing upon the question, there can be no doubt that the continuance of the lien of a justice’s judgment would correspond in all respects with that of a judgment in the common pleas. The words, “in the same manner and with the like effect,” are broad and comprehensive, and seem intended to place judgments in justices’ courts when docketed upon the same footing in all respects, as to the lien created, with those of the common pleas. One of the effects of docketing a judgment of the latter court is, that it binds the lands of the defendant, as against purchasers, &c., ten years from the time of docketing. The length of the lien is as much one of the consequences of the docketing, as any other of its incidents; and the words “ with the like effect,” are entirely unqualified. It is difficult to see, therefore, how a justice’s judgment can be said to be a lien with the like effect unless, it continues a lien for.the same time. But it is claimed that the statute of limitation relating injustices’ judgments,.controls this provision, and limits.the continuance of the lien to. six-years. That statute provides in substance that all actions upon justices’ judgments, “ shall be commenced within six years next after the"cause of such action accrued.” (2 R. S., 295, § 18.) Does this provision annihilate the lien at the end of six years ? The nature, effect and modus operandi of statutes of limitation, have given rise to much discussion in the courts, and to some conflict of opinion; but in respect to one distinction, there has been, I believe, a pretty general concurrence of sentiment. It is said that such statutes act upon the remedy merely, and not upon the debt. This distinction is of long standing. In a note to Lynbury v. Wightman (5 Esp. R.), it is said that bankrupts and infants stand on different grounds in respect to debts from which they are discharged, from persons whose debts are barred by the-statute of limitations, as that statute does not discharge the debt, but only takes away the remedy ; and in the case of Sturges v. Crowninshield (4 Wheat., 122), it was said by C. J. Marshall, that statutes of limitation are not within the well known prohibitory clause of the United States constitution, because they act upon the remedy merely, and do not impair the obligation of the contract. It is unnecessary to refer to the numerous cases in our own courts in which this distinction has been recognized. It is virtually included in the doctrine universally received and acted upon, that where there is a new promise to pay a debt barred by the statute of limitations, it is not necessary to count upon this as a new contract; but the action may be brought upon the original obligation. This practice can only be sustained upon the ground that the debt is not discharged, and that the operation of the statute upon the remedy being removed by the new promise the parties are left in statu quo. Hence it has been uniformly held in cases of discharge under a bankrupt or insolvent law, that the debt itself being discharged, the action must be specifically upon the now promise. (Depuy v. Swart, 3 Wend., 135; Baker v. Wheaton, 5 Mass. R.,509.) This distinction between a statute which discharges the debt, and one which acts upon the remedy only, was applied in the case of Carshore v. Huyck (6 Barb. S. C. R., 583), to an action brought upon a justice’s judgment, which had been barred by the statute of limitations, and revived by a new promise, and an action of debt upon the judgment was sustained. If the distinction be well founded, as I think it clearly is, its application to this case was clearly right. The judgment remained unimpaired; and the new promise restored the remedy, which had been taken away by the statute. In the case of Van Keuren v. Parmelec (2 Coms., 523), Bronson, J., speaking on this subject, says: “ I have not stopped to inquire whether the statute operates upon the debt or the remedy; for though this might be a point tc be considered in a court of conscience, it is of no practica. importance in a court of law.” Although it may be true that in cases like that in regard to which the learned judge was speaking, the distinction was unimportant, yet it is evident that it becomes of great practical consequence, not only in cases involving the constitutional question already adverted to, and in regard to the form and nature of the remedy in case of a new promise; but also where as in this case the party has two distinct remedies for the collection of his debt. If statutes of limitation do not discharge the debt, but act exclusively upon the remedy; upon what principle of interpretation is it to be held that this statute, which is in terms confined to the remedy by action, operates to annihilate the remedy by execution ? The statute is in derogation of a clear common law right. It does not operate according to the recent cases, by producing any presumption of payment, but is a mere statutory bar, founded in principles of public policy. It would be contrary, therefore, to all just rules of construction to. extend its operation beyond the fair and reasonable interpretation of its language. The reasoning which has so fully established that statutes of this sort act upon the remedy only and not upon the debt, equally proves that the operation of the statute in question here, is confined to the particular remedy by action. Indeed the statute could only be held to reach and subvert the remedy by execution, by holding that the debt itself is discharged, or by interpolating language not expressly or by any fair implication contained in the statute. It follows from these views that the lien of the justice’s judgment was in force at the time of the sale by the sheriff under it; and if any irregularity occurred in the issuing of execution, this cannot be taken advantage of by a stranger in a collateral action. The judgment of the supreme court therefore was right and should be affirmed. Judgment affirmed '