(e) EXTENSION, SUSPENSION AND DISCHARGE OF LIEN.The lien of a judgment is not extended by the issuing of execution, and a purchaser at a sale after the statutory time for the duration of the lien has expired under a levy made while the lien was in force takes the property as though the lien had never attached.1 A stay of execution extends the judgment lien the length of the stay.2 It was held that inability to execute process during the civil war did not extend the life of the judgment lien.3 The revival of a judgment by scire facias does not generally extend the duration of the lien.4 Equity will not grant re also Gulick 7. Gulick, 42 N. J. Eq. 323. 1. Bagley v. Ward, 37 Cal. 121; Trapnall v. Richardson, 8 Eng. (Ark.) 543; James v. Wortham, 88 Ill. 69; Conwell v. Watkins, 71 Ill. 488; Beirne 7. Mower, 13 Sm. & M. (Miss.) 427; Roe v. Swart, 5 Cow. (N. Y.) 294; Tufts . Tufts, 18 Wend. (N. Y.) 621; Pettit . Shepherd, 5 Pai. (N. Y.) 493; Graff v. Kipp, I Edw. Ch. (N. Y.) 619; Davis 7. Ehrman, 20 Pa. St. 25S; Pasour 7. Rhyme, 82 N. Car. 149; Birdwell v. Cain, 1 Coldw. (Tenn.) 302; Shaphard 7. Bailleul, 3 Tex. 26. Compare Wood 7. Messerly, 46 Mo. 255; Durrett v. Hulse, 67 Mo. 201. But in Illinois, where there are two or more judgments of different dates in the same county, against the same debtor, and an execution is sued out on the oldest one within a year of its date, and returned unsatisfied, an alias execution issued on such judgment and levied upon the real estate of the debtor within seven years from the date of such judgment, will create an execution lien thereon, commencing at the time the execution came to the hands of the officer, and extending one year beyond the lien of the judgment. the legal effect of which will be to prevent the liens of the junior judgments or executions issued thereon, from so attaching as to give the latter judgments precedence, when the sale under the oldest judgment is made after the expiration of the seven years and within the life of the execution lien. Barth. National Bank, 115 Ill. 472. 2 England v. Lewis, 25 Cal. 337; Brinkley . Welch, 7 Lea (Tenn.) 278; Pennock. Hart, S S. & R. (Pa.) 369. Compare Earnfit . Winans, 3 Ohio 135; Christy . Flanagan, 87 Mo. 670. See also Cain v. Farmer, 74 Ga. 38; Merchants' Mut. Ins. Co. 7. Hill, 17 Mo. App. 590. The lien is not prolonged if the un dertaking is not sufficient to stay proceedings. Chapin v. Broder, 16 Cal. 403; Gruner 7. Westin, 66 Tex. 209. Nor will an agreement to stay execution prolong the lien. Bombay . Boyer, 14 S. & R. (Pa.) 253; s. c., 16 Am. Dec. 494; Wallace's Appeal, 5 Pa. St. 277. Compare Applegate v. Edwards, 45 Ind. 329. See also Ayers 7. Waul, 44 Tex. 549; Root '. Burton, 115 Ind. 495. 3. Smart 7. Mason, 2 Heisk. (Tenn.) 223. The death of the judgment debtor and the failure to appoint an administrator for a long time does not extend the lien. Jones . Detchon, 91 Ind. 154. Transcript.-In California, the filing of a certified copy of a judgment in another county makes it a lien in that county for two years from such filing, though its lien may have expired in the county where rendered. Donner v. Palmer, 23 Cal. 40. Diligence. As to the diligence required in some States to preserve a judgment lien, see Bassett 7. Proetzel, 53 Tex. 569; Breed v. Gorham, 108 Ill. S1; Scharff v. Zimmerman, 60 Miss. 760; Godman 7. Boggs, 12 Neb. 13; Sherburne v. Rippe, 35 Minn. 540. Change of Statute.-While the lien of a judgment was yet alive, the law was changed so as to reduce the duration of judgment liens from five years to three. Without deciding whether the new law applied to this judgment, or not, held, that if it did, the three years must be counted, not from the date of the judgment, but from the time when the new the new law took effect. Riggs 7. Goodrich, 74 Mo. 108. Statutory Duration of Lien.-See Reynolds 7. Cobb, 15 Neb. 378; Werdenbaugh 7. Reed, 20 W. Va. 588. 4. Denegre v. Hann, 13 Iowa 240; Bank v. Wells, 12 Mo. 364; Tufts . Tufts, IS Wend. (N. Y.) 621; Mower 7. Kipp, 6 Pai. (N. Y.) SS; Norton 7. Beaver, 5 lief to a judgment creditor because he has failed to enforce his. lien at law; nor will it interfere to take away any advantage derived by a judgment creditor from his lien,2 unless the judgment was obtained by fraud.3 At common law, a capias ad satisfacicndum suspended the judg-. ment and its lien, and though by the escape of the debtor or his discharge by act of law the creditor was remitted to his rights. under the judgment, its lien was subject to other liens attaching while it was suspended.4 It seems to be the better opinion that a stay of execution on the filing of a bond for an appeal does not discharge or suspend the lien of the judgment. A judgment lien is not lost or suspended by the making of an agreement not to take out execution under the judgment.6 It seems that a judgment creditor who has levied an execution on personal property of the debtor has no right to withdraw the levy and insist on the enforcement of his judgment lien on real estate of the debtor to the prejudice. of other creditors.7 Where a judgment which has been vacated is restored its lien is superior to junior liens existing at the time the judgment was vacated.8 Ordinarily, at least, an entry of the satisfac Ohio 180. Compare Hershy 7. Rogers, 45 Ark. 304, Lichty v. Hochstetler, 91 Pa. St. 444· In Ohio, a judgment may become dormant and lose its lien as against a mortgage made during its life, but upon the revival of the judgment the lien does not obtain priority over the mortgage. Miner v. Wallace, 10 Ohio 403, Tracy v. Tracy, 5 McLean (U. S.) 456. See also Ficklin . McCarty, 54 Tex. 370. See further Shipley . Pew, 23 W. Va. 487; Porter v. Hitchcock, 98 Pa. St. 625; Boyle v. Maroney, 73 Iowa 70; s. c., 5 Am. St. Rep. 657; Virden . Shepard, 72 Iowa 546. 7. 1. Smith 7. Meredith, 30 Md. 429; Douglas v.. Huston, 6 Ohio 162; McCarty v. Ball, 82 Va. 872; Hutchinson 7'. Grubbs, So Va. 251; Sutton v. McKenney, S2 Va. 46; Cabell v. Given, 30 W. Va. 760. 2. Meech v. Allen, 17 N. Y. 300; Cummings' Appeal, 25 Pa. St. 268. 3. Doub v. Mason, 2 Md. 38o. 4. Rockhill v. Hanna, 15 How. (U.S.) 189; Jackson v. Benedict, 13 Johns. (N. Y.) 533; Ransom . Keyes, 9 Cow. (N. Y.) 128; Little v. Bank, 14 Mass. 443. See also Shanklin . Sims, 110 Ind. 143. 5. Low . Adams, 6 Cal. 277; Curtis v. Root, 28 Ill. 367; Merchants' Mut. Ins. Co. v. Hill, 17 Mo. App. 590; Thulemeyer v. Jones, 37 Tex. 560; Woodson v. Collins, 56 Tex. 168; Lisle v. Cheney, 6. Root . Burton, 115 Ind. 495; Muir 7. Leitch, 7 Barb. (N. Y.) 341; Love v. Harper, 4 Humph. (Tenn.) 113. See also Quakertown Bldg. Assoc. v. Sower, 11 Phila. (Pa.) 532. 7. Lyon v. Hampton, 20 Pa. St. 46. 8. King v. Harris, 34 N. Y. 330. Seealso Shepherd v. Brown, 3 Mackey (D. C.) 266; Brown . Clark, + How. (U. S.) 14. If a judgment is opened, but allowed to stand as security for what may be afterwards recovered, it operates notwithstanding its opening as a lien on land. Holmes 7. Bush, 35 Hun (N. Y.) 637. The opening of a judgment to let the defendant into a defence, while it does not in such cases destroy the lien, yet does not extend it unless revived by proper methods. Copes' Appeal, 96 Pà. St. 294. While a judgment is opened by the court and an issue awarded to let the defendant into a defence is pending, it has been held that the lien remains and the judgment may be transferred to tion of a judgment cannot be cancelled or vacated to the prejudice of rights acquired by persons relying on the entry.1 The judgment lien is discharged by a sale under the judgment.2 The vacation of a sale under a judgment revives the judgment lien and restores its priority over junior liens.3 The revival of a judgment lien does not impair rights in the property acquired by third persons while the judgment was dormant. A judgment in an action based on a former judgment merges the former judgment and destroys its lien." The lien of a judgment is released pro tanto by the payment in whole or in part of the judgment, and cannot be restored by a subsequent agreement of the parties.6 A tender of the amount of the judgment without payment does not discharge the lien. Whenever, for any purpose, a judgment may be kept alive after payment, the lien survives.8 another county for the purpose of a lien there. Kittanning Ins. Co. v. Scott, IOI Pa. St. 449. L recovered a judgment against R for $247.48, in an action for money only. R then gave a mortgage to a building association. Afterward, upon second trial, L recovered a judgment against R for $251.80, damages, and $135.98 costs, and levied execution upon the mortgaged premises. In an action by the building association to foreclose the mortgage, marshal liens, and distribute proceeds, it was held, that the lien of L, to the extent of the original judgment, with interest from the first day of the term at which it was rendered, was the first in order of priority; that the mortgage was second in order of priority that the lien of the second judgment, to the extent that it exceeded in amount the first judgment with interest, was the last in order of priority. Loomis . Building Association, 37 Ohio St. 392. See also Leonard's Appeal, 94 Pa. St. 180. 1 Page v. Benson, 22 Ill. 484. See also Renick 7. Ludington, 14 W. Va. 367; Snyder v. Crawford, 98 Pa. St. 414. But where the satisfaction of a judgment has been obtained by fraud it may be cancelled and the lien of the judgment enforced against an intermediate purchaser who has participated in the fraud. White . Jones, 38 Ill. 159. 2. Commissioners' Appeal, 8 W. & S. (Pa.) 444; Ex parte Stevens, 4 Cow. (N. Y.) 133; Black 7. Gerichten, 58 Cal. 56. Or by the sale of sufficient of the lands to satisfy the judgment. Merritt 7. Richey, 97 Ind. 236. Where land is sold on execution in satisfaction in part only of a judgment, and the judgment debtor redeems from such sale, the balance of the judgment at once attaches as a lien upon the property in his hands. Peckenbaugh . Cook, 61 Iowa 477. 3. McHany . Schenk, 88 Ill. 357. 4. Coombs . Jordan, 3 Bland Ch. (Md.) 384; s. c., 22 Am. Dec. 236. 5. Denegre v. Hann, 13 Iowa 240; Shepherd v. Woodfolk, 10 Lea (Tenn.) 593. Compare Purdy v. Doyle, 11 Pai. (N. Y.) 558. 6. De La Vergne 7. Evertson, 1 Pai. (N. Y.) 181; s. c., 19 Am. Dec. 411; Renick v. Ludington, 14 W. Va. 367. See also Snyder v. Crawford, 98 Pa. St. 414. But it seems that in Pennsylvania the parties may prolong a judgment lien by agreement. Sames' Appeal, 26 Pa. St. 184. When a plaintiff in a judgment against B makes a verbal agreement with C that said judgment shall be a lien on land then sold by B to C, such agreement neither adds to nor detracts from the legal force of the judgment, and when such judgment is subsequently decided by the court in which it was entered to be of no legal or binding force, because it had been paid by C. and its lien discharged thereby, such verbal agreement is not effective as a lien on the land sold by B to C. Ley v. Edwards, 21 Fla. 333. 7. Law. Jackson, 9 Cow. (N. Y.) 641; s. c., 5 Cow. 248; Tinney . Woolston. 41 Ill. 219; Lincoln Savings Bank v. Ewing, 12 Lea (Tenn.) 598. 8. Freeman on Judg. (3rd ed.) § 391: Furnold v. Bank, 44 Mo. 336; Lathrop's Appeal, 1 Pa. St. 512; Lidderdale v. Robinson, 12 Wheat. (U. S.) 594. In Indiana, in the case of replevi. bail for the stay of execution on a judg The death of the judgment debtor does not discharge the lien of the judgment. The reversal of a judgment destroys its lien.2 The formation of a new county, including the judgment debtor's land, does not affect the judgment lien.3 VI. DIRECT IMPEACHMENT OF JUDGMENTS 1. Amendment (See AMENDMENTS).4-By the common law, a judgment might be altered, revised, revoked or amended at any time during the term at which it was rendered. After the term,6 a judgment cannot be amended unless as entered it is not the judgment rendered." ment, and in other cases provided for, if the suretyship or other corresponding fact necessary to entitle the party to the benefit of the statute appear of record, an entry or return of satisfaction of the judgment, it not being shown by whom the payment was made, shall not be deemed to extinguish the lien of the judgment, upon the real estate of the judgment debtor, in favor of the replevin bail or other person entitled thereto, if the payment was made by him, as against the grantees of the judgment debtor, though they purchased without actual notice of such a lien. Downey v. Washburn, 79 Ind. 242. 1. Powell v. Macon, 40 Ark. 541; Kimball v. Jenkins, 11 Fla. III; s. c., 89 Am. Dec. 235; Ex parte Dixon, 1 Del. Ch. 261; s.c.,12 Am.Dec.92; Reynolds v. Henderson, 7 Ill. 110; Davis v. Shawhan, 33 Iowa 91; Kothman v. Skaggs, 29 Kan. 5; Halsey v. Van Vliet, 27 Kan. 474; Hollingsworth v. Patten, 3 H. & McH. (Md.) 125; Manney v. Holmes, 87 N. Car. 428; Jerkins v. Carter, 70 N. Car. 500; Murchison v. Williams, 71 N. Car. 135; Shearer v. Brimley, 76 Pa. St. 300; Bindley's Appeal, 69 Pa. St. 295; Laidley v. Kline, 8 W. Va. 218; Burton v. Smith, 13 Pet. (U. S.) 464. Compare Myers v. Kothman, 29 Kan. 19; Bledsoe v. McCorry, 9 Baxt. (Tenn.) 320. 2. Cope's Appeal, 96 Pa. St. 294. 3. Bowman v. Hovious, 17 Cal. 471; Davidson v. Root, 11 Ohio 98. 4. Compare with this section ENTRIES NUNC PRO TUNC, supra, this title. 5. De Castro 7. Richardson, 25 Cal. 49: Stahl v. Webster, II Ill. 511; Moore 7. Taylor, 1 Idaho, N. S. 630; Richardson v. Howk, 45 Ind. 451; Rogers v. Bradford, 8 Bush (Ky.) 164; Burch 7. Scott, 1 Bland Ch. (Md.) 112; Robinson v. Commrs., 12 Md. 132; Lane 7. Ellinger, 32 Tex. 369; Green 7. Pittsburgh etc. R. Co., 11 W. Va. 685; Brown v. Brown, 53 Wis. 29; Memphis v. Brown, 94 U. S. 715. Compare Grant v. Schmidt, 22 Minn. 1. For the sources of the court's power to amend its records, see King v. State, 4 Eng. (Ark.) 188; Makepeace v. Lukens, 27 Ind. 435. 6. At common law, it was said the period within which judgments might be amended nunc pro tunc was not limited, and under the Alabama statutes the right cannot be barred before the expiration of twenty years, the time allowed for reviving judgments by scire facias. Nabers v. Meredith, 67 Ala. 333. At common law, probably a judgment could not be amended after the term at which it was entered. Hardy 7. Cathcart, 1 Marsh. (Ky.) 180. 7. Strange 7. Tyler, 95 Ind. 396; Daviess County Court v. Howard, 13 Bush (Ky.) 101; Seitzinger v. New Era Life Assoc., 111 Pa. St. 557. See also Milam Co. 7. Robertson, 47 Tex. 222. A judgment cannot be amended because it is not the judgment that the attorney intended to have entered. Forquer . Forquer, 19 Ill. 68; Fairbairn v. Dana, 68 Iowa 231; Scroggins v. Scroggins, 1 J. J. Marsh. (Ky.) 362; Dorsey 7. Dorsey, 37 Md. 74; Kemp v. Cook, 18 Md. 131; Ross 7. Ross, 83 Mo. 100; Atkinson v. Atkinson etc. R. Co., 81 Mo. 50; Bertrand v. Gugy, 9 L. C. Rep. 260; Selz 7. Bank, 60 Wis. 246. Or the one authorized by law or the facts. Rockwell v. Carpenter, 25 Hun (N. Y.) 529; Boyd 7. Platner, 5 Mont. 226; Wooldridge v.Quinn, 70 Mo. 370; Phillips v. Negley, 117 U. S. 665. An amendment of the record after judgment will not be granted in order that the plaintiff may have further relief. Kingsland . N. Y., 42 Hun (N. Y.) 599. The court has no power to modify its own judgment as to costs, rendered at a former term, as by changing it from a judgment against the plaintiff (who brought the suit in his official capacity A The court may at any time make the judgment entry conform to the judgment rendered1 upon an assignee's bond) to a judgment against the person for whose benefit the suit was brought. Boland v. Benson, 54 Wis. 387. But it may correct its judgment to show that taxable costs to be paid out of an estate are contestant's costs. Cole's Will, 52 Wis. 591. A judgment entered by the clerk in vacation ought not to be amended when it appears from the record that no judgment ought to have been entered. Higgins v. Driggs, 21 Fla. 103. It is said that the court may amend or expunge a record entry made by a clerk during vacation, and that such action is not reviewable on certiorari. Carpenter v. Zuver, 56 Iowa 390. Where the statute provides that, if a plaintiff "shall not recover more than one hundred and fifty dollars, he shall not recover any costs of the defendant, unless the judge shall be of opinion, and so enter on the record, that the plaintiff had reasonable ground to expect to recover more than one hundred and fifty dollars," such entry on the record must be made at the term at which the judgment is rendered. Shackelford v. Levy, 63 Miss. 125. A judgment by consent cannot be corrected by the court without the consent of all the parties to it. In such case the court can only correct its own errors in making the entries, as, for instance, the misprision of its clerk. McEachern. Kerchner, 90 N. Car. 177. After an agreement, signed by the parties, that a case may be entered "neither party" has been entered of record, although no special order of the court is made therefor, a judge has no power at a subsequent term, on the motion of one party, to order that the entry of "neither party" be stricken off, and the case brought forward. Blanchard 7. Ferdinand 132 Mass. 389. Leave to amend a judgment by confession by supplying the written authority upon which it should have been entered, was denied. Grubbs v'. Leon, 62 Tex. 426. It was held that where, in a suit to foreclose a mortgage, the court rendered judgment showing that there were instalments of the mortgage debt yet to become due. but failed to find whether or not the mortgaged property was susceptible of division, the court could correct such omission, on mo tion, at a subsequent term. But the court could not, upon such motion, review its former finding and judgment as to any question of fact decided. Relief from such error could only be had by appeal. Hannah v. Dowell, 73 Ind. 465. 1. Gibson. Wilson, 18 Ala. 63; Harris v. Billingsley, 18 Ala. 438; Wolfley v. Lebanon Co., 3 Cal. 296: Reily . Burton, 71 Ind. 118; Scroggins 7. Scroggins, 1 J. J. Marsh. (Ky.) 362; State v. Cox, 33 La. An. 1056; State v. Primm, 61 Mo. 166; Robertson 7. Neal, 60 Mo. 579; State v. Warren, 95 N. Car. 674; Chambers v. Hodges, 3 Tex. 517; Durning v. Burkhardt, 34 Wis. 585; Jenkins 7. Eldridge, 1 W. & M. (U.S.) 61; Strickland v. Strickland, 95 N. Car. 471. Where the record discloses the error, the entry may be corrected to show the proper names. Smith . Redus, 9 Ala. 99; Kennedy v. Young, 25 Ala. 563; Crispen v. Hannovan, 86 Mo. 160; Shackleford 7. Fountain, 1 Mon. (Ky.) 252; Merrick v. Mayhue, 40 Mich. 196. See also Brownlee 7. Commrs., 101 Ind. 401. A judgment against a corporation, sued and served by a wrong name, cannot be corrected by a nunc pro tunc entry substituting the right name. Brown 7. Terre Haute etc. R. Co., 72 Mo. 567. Or that the judgment was for or against a party in a representative capacity. Boykin v. Cook, 61 Ala. 472; Smith . Todd, 3 J. J. Marsh. (Ky.) 299; Speed v. Hann, 1 Mon. (Ky.) 16; s. c., 15 Am. Dec. 78; Atkins v. Sawyer, 1 Pick. (Mass.) 351; s. c., 11 Am. Dec. 188; Beers v. Shannon, 73 N. Y. 292; Conn v. Scruggs, 5 Baxt. (Tenn.) 567. Or to correct the amount of the sentence. Ex parte Jones, 61 Ala. 399. Or the amount of the recovery. Sherry v. Priest, 57 Ala. 410; Modawell v. Hudson, 57 Ala. 75; Latta . Griffith, 57 Ind. 329; Miller 7. Royce, 60 Ind. 189; White . Blake, 74 Me. 489. See also Bowers . Hammond, 139 Mass. 360. Or to correct the judgment to show that a special rate of interest was allowed. Evans v. Fisher, 26 Mo. App. 541. But not to change the amount of the judgment as ordered. McCutcheon v. Allen, 96 Pa. St. 319. But it was held that a report of a |
