or accepting a lease; nor by a sale of the property under a Bank v. Pallen, 8 S. & M. (Miss.) 357; s. c., 47 Am. Dec. 92; Dengler v. Kiehnor, 13 Pa. St. 38; s. c., 53 Am. Dec. 441; Gump's Estate, 3 Phila. (Pa.) 495; Rodgers v. McCluer, 4 Gratt. (Va.) 81; s. C., 47 Am. Dec. 715; Gordon v. Rixey, 76 Va. 694; Lee v. Swepson, 76 Va. 173; Morris 7. Mowatt, 2 Pai. (N. Y.) 586; s. c., 22 Am. Dec. 661; Gallaugher v. Hebrew Congregation, 35 La. An. 829. But see Prater v. Cox, 68 Ga. 706. Á purchaser at a sheriff's sale upon execution to satisfy the judgment takes title as against a vendee of the judgment debtor under a conveyance made after the lien attached, where it does not appear that the debtor had other property which should have been first exhausted. Brooker v. Sprague, 99 Ind. 169; Duncan v. Custard, 24 W. Va. 730. But where a judgment is a lien upon several parcels of land which have been sold subsequently to several persons at different times, a court of equity will direct its sale in the inverse order of its alienation. Middletown Bank v. Trustees, 5 Del. Ch. 596; Merritt v. Richey, 97 Ind. 236; Brengle v. Richardson, 78 Va. 406. But where several lots of land are sold on the same day, on the same terms, to several parties, all of whom are immediately put in possession under the same agreement, as to the deeds conveying the lots, and the trust deeds to secure the purchase money-although the deeds conveying them are really delivered and recorded at different times—each lot must bear its proportion, according to their relative values on the day of sale. Harmon v. Oberdorfer, 33 Gratt. (Va.) 497 A purchaser of real estate must take notice of judgment liens, and if, in actual ignorance thereof, he purchases and makes valuable improvements, he cannot, by paying upon the judgment the value of the property without the improvements, release the property from the lien of the judgment if not fully paid. Taylor v. Morgan, 86 Ind. 295. Where properties subject to a common encumbrance are successively alienated, the holder of the incumbrance may, upon the sale of any one of them, release the same from the lien of the encumbrance, without thereby releasing those previously conveyed, even though he may have notice of such prior alienations, unless, indeed, he has received a distinct notice from the prior vendees, cautioning him against doing anything by which their rights may be diminished. Snyder v. Crawford, 98 Pa. St. 414. If the owner of a tract of land executes a deed of trust, conveying his land to a trustee to secure certain debts, and afterwards a judgment is rendered against him, which is duly docketed, and he then makes a contract with a third party to advance for him the amount secured by the deed of trust, and to secure such advance mortgages this land to the person advancing the money for him, and such mortgagee pays off the debts secured by the deed of trust, it would be a complete satisfaction of these debts both in law and equity; the deed of trust becomes wholly inoperative, and the mortgagee cannot be subrogated to the rights of the cestui que trust and have the deed of trust kept alive for his benefit, thus securing priority over the judgment debtor. Hoffman v. Ryan, 21 W. Va. 415. If land has been conveyed to a trustee and by him conveyed to another in discharge of the trust, the title of the grantee is superior to the claim of a purchaser at a sale upon execution on a judgment taken against the grantor in the trust deed, after the execution of that deed, but before the conveyance by the trustee. Clark trustee. Clark v. Merriam, 83 Ind. 58. A purchaser of land subject to a judgment lien of which he had notice is not entitled to the benefit of the occupying claimant act against a purchaser at a sale under the judgment. Rounsaville v. Hazen, 39 Kan. 610. The lien does not attach to lands which have been conveyed with the consent of the judgment creditor. Sharpe v. Davis, 76 Ind. 17. Bankruptcy. The bankruptcy of a judgment debtor, who had years before his bankruptcy conveyed his interest in land to which the lien of a judgment of the district court of the State attached, and whose schedule of assets showed no claim thereto, presented no obstacle to the enforcement of the judgment lien against one holding the land subject to it. Bassett v. Proetzel, 53 Tex. 569. 1. Hence the purchaser at a sale under a lien existing at the time of the ac-. ceptance of a lease by the defendant junior judgment.1 A sale under a judgment relates back to the time the lien attached and transfers all interest in the property that the judgment debtor then possessed. A judgment against a vendor of real estate is a lien to the extent of any remaining interest he may have therein at the time the judgment is docketed; but the vendee will be protected to the extent of any payments he may make to the vendor,4 while he has no actual notice of the existence of the judgment. A A judgment against a vendor who has received full payment for the property is a lien on the legal title only. A vendee under a valid contract of purchase has an interest in the property that will be protected against subsequent judgment liens, although he has paid no part of the purchase money.7 The lien of a judgment against a vendee under a contract of purchase extends to the whole estate may dispute the lessor's title. Tinney 7. Woolston, 41 Ill. 215. v. 1. Littlefield . Nichols, 42 Cal. 372; Lathrop v. Brown, 23 Ia. 40; Shotwell 7. Murray, 1 Johns. Ch. (N. Y.) 512; Rankin v. Scott, 12 Wheat. (U.S.) 177. The money derived from a sale under a junior judgment should not be applied to the satisfaction of prior liens. Bruce . Vogel, 38 Mo. 100. Compare Jones . Wright, 60 Ga. 364; Uniontown etc. Association's Appeal, 92 Pa. St. 200. In some States a sale by the sheriff under a junior judgment of the State court divests the liens of senior judgments upon the property so sold, of both State and United States courts. Trumbo v. Cumming, 20 S. Car. 334. 2. Union Bank 7. Maynard, 51 Mo. 548. 3. Kinports v. Boynton, 120 Pa. St. 306; Brown . Hardee, 75 Ga. 457. A purchaser under the judgment is entitled to the money remaining unpaid to the vendor. Courtnay . Parker, 16 Neb. 311. 4. Moyer v. Hinman, 13 N. Y. 180; Filley. Duncan, 1 Neb. 134; Hampson v. Edelen, 2 Harr. & J. (Md.) 64; s. c., 3 Am. Dec. 530. But it has been held that when the purchaser, the contract being still unperformed on his part, assumes, subsequent to the docketing of the judgment, to acquire from the judgment debtor new or additional rights in the land, not by a performance of his contract, but by a modification of its terms or by a new contract, he does so with constructive notice of the judgment lien, and subject to the superior rights of the creditor. Coolbaugh . Roemer, 30 Minn. 424. 12 C. of L.-8 5. It is otherwise if he has such actual notice. Lefferson v. Dallas, 20 Ohio St. 68; Prater v. Cox, 64 Ga. 706. 6. Peck 7. Williams, 113 Ind. 256; Thomas v. Kennedy, 24 Iowa 397; Lounsbury v. Purdy, 11 Barb. (N. Y.) 490; Manly . Hunt, 1 O. 257; McMullen 7. Wenner, 16 S. & R. (Pa.) 18; s. c., 16 Am. Dec. 543; Whitnell v. Courtland Wagon Co., 25 Fed. Rep. 372. It has even been held no lien where part of the purchase money evidenced by notes was unpaid. Moore . Byers, 65 N. Car. 240. 7. Hampson v. Edelen, 2 Harr. & J. (Md.) 64; s. c., 3 Am. Dec. 530; Keirsted, v. Avery, 4 Pai. (N. Y.) 9; Lane v. Ludlow, 2 Paine (U. S.) 591; Snyder 7. Martin, 17 W. Va. 276; s. c., 41 Am. Rep. 670; Coolbaugh 7. Roeiner, 30 Minn. 424. A conveyance with covenant of title, made by a grantor who has a bond for a deed and before he obtains the legal title, vests the legal title in the grantee eo instanti when the grantor obtains it and there is no space of time in which the lien of a judgment obtained against the grantor after the conveyance was made can attach against the land. Lamprey v. Pike, 28 Fed. Rep. 30; Atkinson v. Hancock, 67 Iowa 452. 113 But a vendee having acquired possession of land under a parol sale cannot set up against the rights of a judgment creditor of the vendor a title acquired by a deed executed after the enrollment of the judgment, though made in pursuance of the parol sale. The rights of the judgment creditor attach with the inception of the lien, and cannot be varied by any subsequent conveyance which the debtor could not have been upon the making of a conveyance.1 Where a deed or mortgage which, by mistake, has been made to convey the wrong land is reformed, the vendee takes the land intended to be conveyed free from the lien of a judgment rendered against the vendor after the making of the original deed or mortgage.2 A judgment lien attaches to real estate subsequently acquired by the debtor.3 All judgments in force at the time a debtor acquires real estate are equal liens thereon.4 The lien of a judgment entered against a vendee on the day that the conveyance is made for the purpose of securing the payment of purchase money is superior to any other lien upon the property of the vendee.5 And, generally, the lien of any instrument given to secure the payment of purchase money is superior to a previous judgment lien.6 The lien of a mortgage given by the vendee of real estate to the vendor on the day that the original conveyance was made is subject to the lien of a prior judgment if the mortgage was given for any other purpose than to secure the payment of the purchase money.7 compelled by a court of chancery to make. Niles v. Davis, 60 Miss. 750. 1. Episcopal Academy . Frieze, 2 Watts (Pa.) 16; Stephens' Appeal, 8 W. & S. (Pa.) 186; Carkhuff v. Anderson, 3 Binn. (Pa.) 4. Compare Evans v. Feeny, 81 Ind. 532. See also Hollida v. Shoop, 4 Md. 465; s. c., 59 Am. Dec. 88. The lien of a judgment against a vendee is not displaced by a decree setting aside the sale where the judgment creditor is not a party to the decree. Stevens v. Sellars, 59 Ga. 540. 2. Swarts 7. Stees, 2 Kan. 236; Gouverneur v. Titus, 6 Pai. (N. Y.) 347. 3. Dickson v. Hynes, 36 La. An. 684; Steele v. Taylor, 1 Minn. 274; Leonard v. White Cloud Ferry Co., II Neb. 340; Colt v. Du Bois, 7 Neb. 391; Barron v. Thompson, 54 Tex. 235; Handly v. Sydenstricker, 4 W. Va. 605; McClung v. Beirne, 10 Leigh (Va.) 394; s. c., 34 Am. Dec. 739. Compare Water's Appeal, 35 Pa. St. 523; Noblet v. St. John, 29 Minn. 180; Filley v. Duncan, 1 Neb. 134. See FUTURE ACQUIRED PROPERTY, vol. 8, p. 988. 4. Michaels v. Boyd, 1 Ind. 259; Cayce v. Stovall, 50 Miss. 396; Moody v. Harper, 25 Miss. 484; Relfe v. McComb, 2 Head (Tenn.) 665; Davis v. Benton, 2 Sneed (Tenn.) 665; Barth v. Makeever, 4 Biss. (U. S.) 206. Compare Creighton v. Leeds, 9 Oreg: 215. 5. Stoner v. Neff, 50 Pa. St. 260. A purchaser under a judgment for purchase money takes the land free from the vendor's lien. Ziegler's Appeal, 69 Pa. St. 471; Vierheller's Appeal, 24 Pa. St. 106; s. c., 62 Am. Dec. 365. Where, upon promissory notes given for the purchase money of land and secured by an express lien or equitable mortgage in the deed of conveyance, several judgments are rendered, in favor of two different holders of such notes against the maker, each of the judgments is entitled to share in the proceeds of the. land, even though one may have been recovered and enrolled before the other. Aaron v. Warner, 62 Miss. 370. 6. Parsons v. Hoyt, 24 Iowa 154; Christie v. Hale, 46 Ill. 117; Bradley v. Bryan, 43 N. J. Eq. 396; Cakes' Appeal, 23 Pa. St. 186; Jacobs' Appeal, 23 Pa. St. 477; Snyder's Appeal, 91 Pa. St. 477; Cowardin v. Anderson, 78 Va. 88. Compare Curtis 7. Root, 28 Ill. 367; Hamilton v. State Bank, 39 La. An. 932. But it was held that the lien of a judgment takes precedence of a prior vendor's lien, where the judgment is taken without notice, actual or constructive, of the vendor's lien. Cutler v. Ammon, 65 Iowa 28. And where a judgment creditor has advanced his money on the faith of an apparently unencumbered title, the lien of his judgment is preferred to the secret, unrecorded lien of the vendor. Hullett . Whipple, 58 Barb. (N. Y.) 224. 7. Root v. Curtis, 38 Ill. 192. See Utley v. Jones, 92 N. Car. 261. The lien of a judgment taken to secure advances to be made or a liability to be incurred by the judgment creditor is superior to the lien of a junior judgment, though docketed before such advances were made or liability was incurred. The lien of such a judgment is also superior to the lien of a mortgage subsequently given by the judgment debtor if, at the time advances were made or liability was incurred, the judgment creditor had no actual notice of the existence of the mortgage. It has been held that the judgment in proceedings to foreclose a mortgage extinguishes the mortgage lien," but other authorities sustain a contrary doctrine.4 At common law, all judgments were considered as entered of the first day of the term and the liens of judgments rendered during the same term were therefore equal. A contrary doctrine now obtains, generally, and judgment liens take precedence 6 1. Norton v. Whiting, 1 Pai. (N. Y.) Ill. 114; Barnard v. Onderdonk, 98 N. 578. Y. 158. 2. Truscott v. King, 6 Barb. (N. Y.) 346. But a judgment entered on a bond conditioned that the obligor will pay to the obligee the sum of all notes, checks, drafts and obligations of every kind or nature which B has incurred or assumed, or may hereafter incur or assume, to a certain bank, was held lien for future advances as against intervening encumbrances only from the date of such future advances, and not from the date of the judgment. Kerr's Appeal, 92 Pa. St. 236. So of an unrecorded vendor's lien. Hullett . Whipple, 58 Barb. (N. Y.) 224. The lien of a judgment for future advances was held superior to a mechanics' lien for materials furnished for the erection of a building after judgment was entered. Robinson 7. Real Estate etc. Co., 55 Md. 105. 3. From which the conclusion was drawn that during the time intervening between the enrollment and docketing of the decree of foreclosure there was no lien whatever. People 7. Beebe, I Barb. (N. Y.) 379; Gage v. Brewster, 31 N. Y. 226; Johnson . Exchange Bank, 33 Gratt. (Va.) 473. Compare McCall v. Lenox, 9 S. & R. (Pa.) 310; De Witt's Appeal, 76 Pa. St. 283. 4. But that the land might be subjected to the payment of the judgment at any time during the existence of the mortgage lien. Riley v. McCord, 21 Mo. 285; Evansville Gas Light Co. v. State, 73 Ind. 219; s. c., 38 Am. Dec. 129. See also Priest z. Wheelock, 58 In Iowa, the lien of a mortgage continues until the judgment of foreclosure is satisfied or barred by the Statute of Limitations. Stahl v. Roost, 34 Iowa 476; Hendershott 7. Ping, 24 Iowa 134. -- Deficiency. The statutory judgment for any deficiency is not a lien till the amount is ascertained and the judgment docketed. Winston v. Browning, 61 Ala. So; Hershey v. Dennis, 53 Cal. 77; Bell v. Gilmore, 25 N. J. Eq. 104; Culver v. Rogers, 28 Cal. 520; Hays v. Miller, I Wash. Ter. 143; Weil v. Howard, 4 Nev. 384. A personal judgment in an action to foreclose a mortgage is a lien on all real estate of the debtor within the jurisdiction of the court. Lisle v. Cheney, 36 Kan. 578. 5. Johnson v. Mitchell, 17 Ga. 593; Porter . Earthman, 4 Yerg. (Tenn.) 358. Compare Anderson v. Tuck, 33 Md. 225; Welch. Murray, 4 Yeates (Pa.) 197; s. c., 4 Dall. (Pa.) 320. But a judgment will not be considered to relate to the first day of the term for the purpose of giving it priority over a conveyance to a purchaser for value and without notice. Morgan v. Sims, 26 Ga. 283. See also Skepwith v. Cunningham, 8 Leigh (Va.) 272; Withers v. Carter, 4 Gratt.. (Va.) 407; Brockenbrough . Brockenbrough, 31 Gratt. (Va.) 530. Compare Keller v. Aultman, 30 Fed. Rep. SSS. Notice will not be taken of the fraction of the day preceding office hours. Wardell v. Mason, 10 Wend. (N. Y.) 575. 6. See preceding note. in the order in which they are rendered.1 Judgments entered the same day are equal liens ;2 but in such cases the judgment creditor who first takes the property on execution—according to some authorities,-3 or who has a superior equity, will obtain priority. 4 A judgment docketed on the day that real estate is sold under a senior judgment, but before the sale, is a lien on the real estate and is entitled to be satisfied out of any surplus remaining after the satisfaction of the senior judgment.5 One who purchases real estate the day that a judgment lien attaches is not prejudiced thereby ;6 and it seems to be the better opinion that the same rule applies to mortgagees. Judgment liens are subject to the liens of debts due the United States by insolvents, and of costs incurred in enforcing the judgment lien and distributing the fund arising from the sale of the property.9 1. Slattery v. Jones, 96 Mo. 216; s. c., 9 Am. St. Rep. 344; Jackson v. Holbrook, 36 Minn. 494; Lillienthal . A. P. Hotaling Co., 15 Öreg. 371; Titman v. Rhyme, 86 N. Car. 64. A senior judgment against a distributee in an estate has priority over a judgment in an action on a note given by the distributee for purchases of personalty at the administrator's sale. Pendergrass v. Pendergrass, 26 S. Car. 19. The question of the priority of the rendition of two judgments in the same court is to be determined by the minutes of the court; and it is not admissible to show by evidence aliunde that the one last entered was in fact first rendered. Johnson 7. Edde, 58 Miss. 664. 2. Hollcraft 7. Douglass, 115 Ind. 139; Bruce v. Vogel, 38 Mo. 100; Burney . Boyett, 1 How. (Miss.) 39; Mechanics' Bank v. Gorman, 8 W. & S. (Pa.) 304; Rockhill v. Hanna, 4 McLean (U. S.) 555. Compare Bates v. Hindale, 65 N. Car. 423. 3. Holcraft v. Douglass, 115 Ind. 139; Lippincott v. Wilson, 40 Iowa 425; Bruce v. Vogel, 38 Mo. 100; Burney I v. Boyett, 1 How. (Miss.) 39; Waterman v. Haskins, 11 Johns. (N. Y.) 228; Rockhill . Hanna, 15 How. (U.S.) 189. But see Metzler v. Kilgore, 3 P. & W. (Pa.) 245; Gay v. Rainey, 89 Ill. 221. But it has been held that the lien of a creditor under a creditor's bill has no preference over the lien of prior judgments against lands which were subject to levy under execution. The priority of lien of a judgment creditor by the filing of a cred itor's bill exists as a reward of diligence in the discovery of and subjecting assets of the debtor which were not within the reach of execution at law; and is not allowed as against a prior judgment which was a lien at law upon property subjected and converted into money by a sale in partition proceedings. Eldridge . Post, 20 Fla. 579. 4. McAlpin v. Bailey, 76 Ga. 687; Perry v. Miller, 54 Iowa 277; Vierheller's Appeal, 24 Pa. St. 106. But see Maxwell v. Vaught, 96 Ind. 136. Where lands are devised, the lien of an existing judgment against the devisee will attach thereto at once upon the testator's death, and cannot be divested by nor postponed to the lien of a junior judgment against the devisee, upon a debt due from him to the testator before his death. Campbell v. Martin,. 87 Ind. 577. 5. Small's Appeal, 24 Pa. St. 398; Stoner v. Neff, 50 Pa. St. 260. 6. Ladly . Creighton, 78 Pa. St. 490. Compare Clark 7. Duke, 59 Miss. 575. The precise time of entering judgment may be shown by other than record proof. Mechanics' Bank . Gorman, 8 W. & S. (Pa.) 394. Compare Murfee 7. Carmack, 4 Yerg. (Tenn.) 270; Berry 7. Clements, 9 Humph. (Tenn.) 312. 7. Murfee 2'. Carmack, 4 Yerg. (Tenn.) 270; Berry . Clements, 9 Humph. (Tenn.) 312. Compare Hendrickson's Appeal, 24 Pa. St. 363. 8. United States v. Duncan, 12 Ill. 523; Conrad 7. Insurance Co., 1 Pet. (U. S.) 444. 9. Jones v. Wright, 60 Ga. 364; Shelly's Appeal, 38 Pa. St. 210. See |
