CHAPTER VII.

THE RIGHTS OF CREDITORS.

THE rights of creditors arise under the Insolvent and Bankrupt Laws, or by virtue of a judgment, decree, or order of a court of common law, equity, or bankruptcy. It is to this last species of right that the present chapter will be confined.

1. JUDGMENTS UNDER THE STATUTE 2. PROVISIONS OF THE 1 VICT. c. 110,

OF WESTMINSTER.

AND SUBSEQUENT STATUTES.

SECT. 1.-JUDGMENTS UNDER THE STATUTE OF WESTMIN

383 d.

STER.

1. Origin of the Lien of Judgments, | 3. Distinction between Real and Personal Estate as to the Effect of the Lien, 383 h.

2. When the Lien attaches, 383 f.

4. Lien upon Trust Estates, 383 h.

1. Origin of the Lien of Judgments.]-During the prevalence of the feudal system, a creditor in actions of debt could only obtain judgment for satisfaction against the goods and chattels of his debtor by fi. fa., and the growing crops and profits of his land by a writ of levari facias; but he could neither obtain possession of the land or any estate in it. To remedy this defect, it was ' 13 Ed. 1, c. 18. enacted by the Statute of Westminster 2nd 1, that "when a debt was recovered or acknowledged, or damages adjudged in the King's courts, it should be in the election of the creditor either to have a writ of fi. fa., or that the sheriff should deliver to him all the chattels of the debtor, saving only his oxen and beasts of the plough, and also one-half of his lands, until the debt was levied

upon a reasonable price or extent." In pursuance of this statute a new writ was formed, and called an elegit, from the words of the entry on the roll, quod elegit sibi executionem fieri de omnibus catallis et medietate terræ. Thus, a judgment in an action of debt, obtained in any of the courts of record at Westminster, became a lien on freehold estates, as it enabled the person in whose favour it was pronounced to obtain possession of one half of the debtor's lands. As it contains the words, "when a debt shall be acknowledged," a judgment entered up in pursuance of a warrant of attorney will equally entitle the creditor to an elegit, as a judgment obtained in an adversary suit1.

1 Doe v. Carter,

1 T. R. 61.

The judgment is a general lien on a moiety of the lands of the debtor, as well with respect to those which he has at the time of entering up the judgment, as those he may subsequently acquire. It is a general and not a specific lien; that is, it is a lien not on any particular estate of the debtor, but extends to a moiety of his lands generally 2. It is also important to bear in mind, that this 1 P. W. 279; lien affects the legal estate, and cannot be detached or defeated by any species of alienation whatever, not even if it be to a mortgagee or purchaser with notice, except it be a mere empty legal estate, the trust of which is possessed by another person3.

9 Mod. 395.

Forth v. Duke of Norfolk, 4 Madd. 505; 2 P. W. 492.

Though previously to the 1 Vict. c. 110, no more than one moiety could be taken in execution under one judgment, yet a plaintiff, by obtaining two judgments both of the same date, and by suing a separate execution on each judgment, might take a distinct moiety under each execution, and consequently by moieties have the whole 4. If one moiety were already taken in exe-Att.-Gen. v. cution, a second judgment creditor could only take one fourth, Andrew, Hard. that is, a moiety of the remaining moiety, and so of the like5. The third could only take one eighth, and so on.

A judgment given in England before the Union had not the force and effect in Ireland of a judgment of record in that country, so as to bind the land, or have priority as a specialty 6; and it was said in a recent case by the court of King's Bench, that, "neither was an Irish judgment a lien on lands in England:" and the Union has made no difference in this respect: the Act of Union says, "that all liens in force at the time of the Union shall "remain." Now, before the Union a judgment given in Ireland would not bind lands in this country. To hold that it would, since the Union, would have the effect of altering the law. We do not say that an action of debt may not be maintained on an

23.

5 Hurt v. Cogan, Cro. Eliz

482.

6

Otway v. Ramsay, 2 Stra.

1090; S. C. 4

Barn. & Cress.

414.

1 Per Abbott, C. J., in Harris v. Saunders, 4

Barn. & Cress.

Irish judgment, but if it be a record in this country, it must have all the consequences of a record: it must bind lands, and rank as a specialty debt in marshalling assets. I have inquired of a very learned person, whether, in marshalling assets, an Irish judgment is considered to be entitled to priority as an English judgment, and the result of that inquiry is, that it is not. This being the case, we think assumpsit will lie 1."

2. When the Lien attaches.]—The whole of the term is taken for many purposes, but as one day; and a judgment given on the last day of term is considered as relating back to, and its lien and 21 Wils. 37; 4 operation as commencing from, the first day of the term 2. If,

411.

Co. 71 a.

ss. 14, 15.

therefore, a purchase or mortgage were completed at the beginning of a term, and a judgment in fact given many days after, yet by relation back to the first day of term, the judgment would acquire priority, and subject the lands to an extent, although the bonâ fide purchaser had neither notice nor any possible means of 29 Car. 2, c. 3, obtaining notice. The Statute of Frauds 3 applied a remedy to this hardship, and enacted, that "The judge or officer signing the "judgment should set down the day of the month and year of his "so doing upon the proper book, docket, or record, which he "should sign, which date should be also entered on the margin of "the roll of the record where the judgment was entered, and that "purchasers, &c., should be charged from such time only, and not "from the first day of the term whereof the judgment was entered." Where leave is given to enter up judgment as of a preceding term, nunc pro tunc, the court, in order that it may not affect purchasers, will order it to be docketted of the term in which the application is made1.

Baker v. Baker, 2 Tidd. Pr. 967, 6th ed.

5 See Forshall v. Coles, 7 Vin. Ab. 54; Sugd. V. P. App. 41.

By the statute 4 & 5 W. & M. c. 20, made perpetual by the 7 & 8 W. 3, c. 36, judgments given in Michaelmas and Hilary terms are required to be docketted before the last day of the ensuing terms, and those of Easter and Trinity terms before the last day of Michaelmas term; and it is declared that no judgment, not so docketted, shall affect purchasers or mortgagees 5.

From the time of docketting, therefore, the legal lien of the judgment attaches; and if the judgment has been docketted, then, whether the subsequent purchaser or mortgagee have actual notice of the judgment or not, he will be bound by it.

Under the Registry Acts, however, it is to be observed, that, in Middlesex, judgments bind from the time they are memorialized: in the North Riding of York, any judgment registered

within twenty days, and in the East and West Ridings, and in Kingston-upon-Hull, judgments registered within thirty days after the day of the acknowledgment will be available in like manner, as if registered on the day it was acknowledged.

If, therefore, the lands purchased or mortgaged lie in a register county, the register must be searched for judgments and incumbrances, as well as the dockets of the courts of Westminster, since a judgment, though docketted, will not, as to lands lying within that county, become, as against a purchaser without notice, a legal lien, which he will be bound to observe, unless it be registered as well as docketted.

The statute of William & Mary was enacted, according to the preamble, for the purpose of giving to purchasers, mortgagees, and other persons therein named, greater facility in discovering judgments affecting the lands which they had taken in mortgage, purchase, &c.: it did not make docketting notice to all the world of the existence of the judgment so to be registered, but merely required the incumbrances to be recorded, that the persons named in the statute might be assisted in detecting the liens which affected their estates. Hence, it has been held in equity, that a purchaser will be bound by notice of a judgment, though it be not docketted1; or, in other words, that the judgment attaches against all persons on whom notice can be proved, and their assigns2, from the time such notice is given; but, in a court of law, actual notice will not bind a party as to a judgment which has not been docketted3.

The practical result of the preceding observations may be reduced to the three following rules:-1st. That as against the debtor himself, the lien of judgments attaches both at law and in equity on all his lands from the moment the judgment is signed or recorded, and, without either docket or registration, continues to be a lien against him and his property until aliened. 2nd. As to judgments, which are merely signed or recorded, no lien at law attaches as against purchasers or mortgagees; but in equity, the lien of judgments attaches on the estate against purchasers or mortgagees from the time actual or implied notice of such undocketted judgments can be proved against them. 3rd. The moment the judgment is docketted it becomes at law a lien on the real property of the debtor, not only as to that he may then have, but also on all estates he may afterwards acquire, both as against himself and all other persons deriving title by or under

Lyttleton v. Cross, 3 Barn. & Cress. 317.

29 Car. 2, c. 3,

s. 16; Jeans v.

Wilkins, 1 Ves,

95.

Scott v. Scho

ley, 8 East,467

Metcalf v.Scholey, 2 N. R. 461.

4 Neate v. Marlborough, 9 Sim. 60,

S. C. 3, My. &

Cr. 407.

Angell v. Draper, 1Vern. 399; Shirley v. Watts, 3 Atk.

200.

• Price v. Varney, 5 Dowl. & Ryl. 612.

him subsequently to such docket. It was laid down in a modern case, that "where the purposes of justice require, that the true time when the judgment was obtained should be made appear, a party may shew it by averment in pleading1."

3. Distinction between Real and Personal Estate as to the Effect of the Lien.]—The lien created by judgments on personal estate differs materially from that on real estate. As against terms for years and personal estate, judgments do not create any specific lien. The property is bound only from the time at which execution is issued to the sheriff or other officer, and delivered to him for the purpose of being executed 2. It is incumbent, therefore, on the purchaser of a leasehold estate to ascertain that no execution has been delivered to the sheriff; but as the sheriff will not, in many instances, permit his office to be searched, this information can only be obtained by inquiring in the proper courts whether any judgments against the vendor have been recovered. A mere equitable interest in a term of years cannot be taken in execution by the sheriff under a writ of fi. fa. at the suit of a judgment creditor3. A judgment creditor cannot file a bill in respect of his lien, whether on freehold or leasehold estates, without suing out an elegit, or in some other way proceeding to execution 4.

A judgment creditor cannot file a bill to redeem leaseholds, until he has sued out execution at law, for until he has so done, they are not bound by the judgment, and the plaintiff is not entitled to a discovery or account of them 5.

When lands have been taken under an elegit, the creditor, when the debt is satisfied, may recover possession, without filing a bill in equity for an account, by a rule calling on the creditor to shew cause why it should not be referred to the Master to take an account of the rents and profits, and why the creditor should not give up possession, if it be found that he had received the monies due 6.

4. Lien on Trust Estates.]-Uses and trusts were not subject to execution at common law, but were made so by the first Rich. 3, c. 1, a statute which became obsolete after the Statute of Uses. When uses revived under the name of trusts, it became necessary again for the legislature to interpose, and it was enacted in a clause, which followed the language of the statute of Richard, 729 Car. 2, c. 3, that "it shall be lawful for every sheriff, or other officer, to "whom any writ or precept is or shall be directed, at the suit of

s. 10.