Summary
In Holman v. Miller, 103 N.C. 118, it is said: "Under the present system no lien is acquired upon land in the absence of an execution and levy, until the judgment has been docketed."
Summary of this case from Bernhardt v. BrownOpinion
(February Term, 1889.)
Judgment, Docketing and Lien of — The Code, secs. 433-83.
1. A Judgment is not a lien upon land, in the absence of the actual levy of an execution, until it is docketed in the county where the land is situate, in the manner prescribed by section 433 of The Code, and upon the docket required to be kept by section 83 of The Code.
2. It is the duty of a judgment creditor to see that his judgment is properly docketed. If the clerk neglects to docket the judgment, subsequent encumbrances and claimants under the judgment debtor are not to be prejudiced thereby, and the remedy of the judgment creditor is against the clerk for loss suffered by reason of the failure to docket the judgment.
(119) THIS was a civil action, tried, upon complaint, answer and demurrer to the answer, before Philips, J., at the February Term, 1889, of IREDELL Superior Court.
D. M. Furches for plaintiff.
Chas. Armfield and W. D. Turner for defendant.
The facts are, that the plaintiff, as trustee, under a deed in trust, executed by Charles L. Summers and registered in Iredell County on 4 November, 1886, sold, for cash, certain lands, and that the defendant became the purchaser in the sum of six hundred and ten dollars. The plaintiff tendered a deed and demanded the purchase money, and, upon defendant's refusal to pay, brought this action to enforce the payment thereof. The defendant contends that the plaintiff cannot make a good title because of the existence of a prior lien upon the land by virtue of a judgment rendered at August Term, 1886, of the Superior Court of said county of Iredell. At the said term a judgment was rendered against the said Summers and others for six thousand dollars, which greatly exceeds the actual value of the land. The said judgment was not docketed until 21 May, 1888. It does not appear that there was ever any execution or levy. His Honor held that the plaintiff was entitled to recover, and the defendant appealed.
The question presented for our consideration is, whether an undocketed judgment prevails over a registered deed in trust to secure creditors. Under the law as it existed prior to the adoption of the Code of Civil Procedure, there was not provision for the docketing of judgments, and a lien upon the property of the debtor was acquired only by issuing a writ of fieri facias, which bound the property of the debtor from its teste. Under the present system no lien is acquired upon land in the absence of an execution and levy, until the judgment has been "docketed on the judgment docket." The Code, sec. 435; Sawyer v. Sawyer, 93 N.C. 321; Williams v. (120) Weaver, 94 N.C. 134. The Code, sec. 433, provides that judgments "shall be entered by the clerk of said Superior Court, on the judgment docket of said court. The entry shall contain the names of the parties and the relief granted, date of judgment and date of docketing, and the clerk shall keep a cross index of the whole, with the dates and numbers thereof. All judgments rendered in any county by the Superior Court thereof, during a term of the court, and docketed during the same term, or within ten days thereafter, shall be held and deemed to have been rendered and docketed on the first day of said term." The Code, sec. 83, requires a separate and distinct docket for this purpose. So it is very clear, that unless the judgment is docketed upon this particular docket, there can be no lien by virtue of the judgment alone. The docketing is required, in order that third persons may have notice of the existence of the judgment lien. "The dogget, or, as it is commonly called, the docket or docquet, is an index to the judgment, invented by the courts for their own ease and security of purchasers, to avoid the trouble and inconvenience of turning over the rolls at large. The practice of docketing judgments seems to have obtained as early as the reign of Henry the Eighth. . . Purchasers are not bound to examine for judgment liens further than to look into the proper dockets." Freeman on Judgments, sec. 343. The observance of this law is regarded as so important to subsequent purchasers and mortgagees that, wherever the system of docketing obtains, a very strict compliance with its provisions in every respect is required. In Brandlery v. Plummer, L. I., 26, Vol. 326, the mere omission to insert the "number roll of the entry" was held by the Lord Justice to be fatal. In Ridgway Co.'s Appeal, 15 Penn., 177, the failure to record the Christian names of the defendants invalidated the docketing of the judgment as to subsequent purchasers (121) or judgment creditors. In Buchan v. Sumner, 2 Barb., ch. 165, it was held, "that the docketing of a judgment against Palmer Summer, under the letter P, the initial letter of his Christian name, instead of the letter S, the initial letter of his Surname, was not even a compliance with the requirements of the statute." In London v. Ferguson, 3 Russ, Chan. Rep., 349, the judgments had been carried into the proper office to be docketed, but, from mistake of the officer, the dockets were not completed. Lord Gifford "decided that the holders of the judgments were not, even in equity, entitled to a priority." In our case no attempt whatever appears to have been made to have the judgment docketed, and although it was the duty of the clerk to have done so, his omission is no excuse for the judgment creditor, as the authorities all clearly establish that it was his duty "to see that his judgment is rightly entered on the judgment docket. . . . The remedy of the party aggrieved is against the prothonotary (or clerk). . . . The purchaser is not bound to look beyond the judgment docket." Ridgway Co.'s Appeal, supra; Freeman on Judgments, supra.
Holding as we do, that the judgment is not a lien upon the property, as against this defendant, it is unnecessary for us to consider whether such a defense, had it been valid, could have been asserted by a purchaser at a sale like this, especially where the record is silent as to what was proclaimed as terms and conditions of the sale by the trustee.
We are of the opinion that the plaintiff is entitled to recover.
No error. Affirmed.
Cited: Alsop v. Moseley, 104 N.C. 68; Dewey v. Sugg, 109 N.C. 335; Gambrill v. Wilcox, 111 N.C. 44; Redmond v. Staton, 116 N.C. 142; Stanley v. Baird, 118 N.C. 83; Bernhardt v. Brown, 122 N.C. 594; Darden v. Blount, 126 N.C. 249; Valentine v. Britton, 127 N.C. 59; Wilson v. Lumber Co., 131 N.C. 166; Evans v. Alridge, 133 N.C. 380; Cox v. Boyden, 153 N.C. 525; Trust Co. v. Currie, 190 N.C. 264.
(122)