Opinion
05-18-1855
PURYEAR v. TAYLOR.
Patton, for the appellant: Rhodes and Macfarland, for the appellee.
(Absent ALLEN, P.)
1. A fieri facias is a lien from the time it goes into the hands of the officer to be executed, upon all the personal estate of the debtor, including debts due to him, with the exception stated in the statute; and this lien continues after the return day of the execution; and only ceases when the right to levy the execution, or to levy a new execution upon the judgment, ceases or is suspended by a forthcoming bond being given and forfeited, or by a supersedeas or other legal process. See Code, ch. 188, § 3 and 4, p. 717. [a1]
2. The lien of a fieri facias of prior date, has priority over an attachment of subsequent date.
On the 25th of October 1851, William N. M. Taylor instituted an action of debt in the Circuit court of Mecklenburg county against Richard H. Daly for four hundred and two dollars and four cents, with legal interest thereon from the 27th of March 1849. The summons was made returnable to the November rules; and was returned " no inhabitant."
On the same day, an affidavit having been made as prescribed by the statute, Code, ch. 151, § 1, p. 600, an attachment was issued to attach the effects of the defendant to the amount of the debt; and it was served on J. J. Daly on the 27th of the same month.
On the 15th September 1852, judgment was recovered against the defendant for the amount of the debt; and on the motion of the plaintiff, it was ordered that J. J. Daly, the garnishee in the attachment, be summoned to appear at the next term of the court, to say on oath whether he owed debts to, or had effects in his hands belonging to, the defendant. This summons was issued on the 10th of January 1853, and was served on the 8th of February following.
At the March term of the court J. J. Daly appeared and made a return to the summons, by which it did not appear that there was any certain sum in his hands belonging to Richard H. Daly, though it was stated that he had an interest in two estates of which J. J. Daly was the administrator.
At the September term the garnishee was permitted to amend his return, and he then stated that the interest of Richard H. Daly in the two estates of which the garnishee was administrator, amounted to seven hundred and ninety-four dollars and seventy-eight cents, on the day of his return; which amount he stated was not sufficient to pay the indebtedness of Richard H. Daly to the plaintiff, and to Richard C. Puryear, surviving partner of A. B. Puryear & Co. who had a summons pending in the same court against J. J. Daly as garnishee of Richard H. Daly. And he asked the court to decide which of the creditors had the preference, so as to protect him.
At the same term of the court Richard C. Puryear filed his petition in the case, setting out his proceedings against Richard H. Daly, and the garnishee, and claiming the fund in the hands of the latter. It appears that Puryear recovered a judgment against Richard H. Daly in May 1844, for one thousand and ninety-six dollars and seven cents, with interest from the 1st of January 1842. Upon this judgment an execution was issued in the same month, and returned, " no effects." That afterwards, on the 9th of December 1850, he sued out another execution on his judgment; which was also returned " no effects." And on the 10th of March 1853 he sued out another execution, upon which there was the same return.
On the 11th of March 1853, Puryear having made a suggestion in pursuance of the act, Code, ch. 188, § 11, p. 718, that by reason of the lien of his fieri facias issued on the 9th day of December 1850, there was a liability on J. J. Daly who had money and effects in his hands belonging to Richard H. Daly, a summons was issued to J. J. Daly to appear at the next September term of the Circuit court of Mecklenburg, then and there to declare on oath whether he had any money or effects in his hands belonging to the said Richard H. Daly, and what amount. This summons was served on the same day: And at the September term J. J. Daly made a return similar to that made by him in the case of Taylor.
At the same term of the court the case came on to be tried, and the parties dispensing with a jury, the court held that as no suggestion had been made of a lien under the execution which issued in favor of Richard C. Puryear against Richard H. Daly on the 9th of December 1850, until the 11th of March 1853, after the return day thereof, the said Richard C. Puryear had no lien on the funds in the hands of J. J. Daly by virtue of that execution. But that he acquired a lien by virtue of his execution which issued on the 10th of March 1853, which lien was subsequent to that of Taylor. It was therefore ordered that Taylor's debt, admitted to be five hundred and twenty-four dollars and eighty-two cents, should be paid out of the funds in the hands of J. J. Daly; and that the balance of that fund, amounting to two hundred and sixty-nine dollars and ninety-six cents, should be paid to Puryear, in part satisfaction of his judgment. From this judgment Puryear applied to this court for a supersedeas, which was allowed.
Patton, for the appellant:
The single question in this case is, whether the attachment of Taylor or the suggestion of Puryear is entitled to preference; the fieri facias having been issued and returned before the attachment was served. Both of the laws under which these parties proceeded are new in Virginia.
By the act, Code, ch. 188, § 2, p. 716, the execution against the body of the debtor was abolished; and this chapter was intended to give the creditor all that the issue of a capias ad satisfaciendum, the arrest of the debtor and his discharge under the insolvent laws, would afford him, with one exception, which is not in favor of the attaching creditor. The third section gives the execution creditor a lien on all the property of the debtor, though the execution could not be levied upon it; with the special exceptions stated in the section. The fourth section shows when the lien is to cease. That is when the right to levy an execution ceases, or is suspended by a forthcoming bond being given and forfeited, or by supersedeas or other legal process.
The act provides that it shall not impair a lien acquired by an execution creditor under chapter 187: Thereby showing that it is preferable to an attachment lien, and of all execution liens except when levied under ch. 187, § 11. Then the effect of an execution returned " no effects," under chapter 188, is to give a lien on all the property of the debtor. But if another execution is afterwards issued and levied upon property of the common debtor, which is subject to levy, that is good against the first lien; and the exception in this case proves the rule. When it is intended to protect creditors, the act so provides.
But it is said that the proceeding provided by ch. 188 must be taken before the execution expires. If this be so, it is not what was intended, and is in fact nonsense and useless. There is no doubt the fieri facias is at an end as to all property on which the execution may be, and is not, levied under ch. 187. The sheriff gets his authority from the precept, and when that expires his authority expires. But the act, ch. 188, was intended to continue the lien, and it is wholly useless unless it has this effect; for ch. 187 had not only given the lien but the right to levy. That act, § 11, says the execution shall bind as to creditors and purchasers for value without notice only from the time it is delivered to the sheriff. It must then bind from that time. The act, ch. 188, § 3, says, in addition to the effect the execution has under ch. 187, it shall be a lien on all the property of the debtor, whether levied on or not, or whether or not it can be levied on, except as to a purchaser, assignee or other execution creditor. And by § 17 of this chapter, the creditor may avail himself of the remedies provided by it; and yet without impairing his lien under it, may from time to time, under ch. 186 and ch. 187, issue other executions upon his judgment until the same be satisfied. If he has no lien after the return day of the execution, why provide that it shall not be impaired by the issue from time to time of other executions upon his judgment? And I would ask too how a creditor can know whether or not an execution will be levied until it is returned; and therefore how he can proceed to subject his debtor's property, as provided in ch. 188, before his execution expires?
There is certainly no reason in justice or sound policy, why the lien of an attachment should be preferred to the lien of an execution: The attaching creditor is not an assignee for value: There are good reasons why such an assignee without notice should be protected; and the act protects him. And indeed the act expressly protects all those who have any right to protection: The attaching creditor has none.
Rhodes and Macfarland, for the appellee.
We do not concur in that construction of the statute by which it would give to an execution the effect of a continuing, indefinite lien. It is true that the act extends the range of the lien. Subjects not before liable are now subjected to it. But it is not pretended that there is any change in the lien as to the subjects before embraced in it; and therefore unless a creditor has two distinct liens, it must be limited throughout as it was under the former law.
The counsel for the appellant relies upon the third section of ch. 188 of the Code. But that section must be construed with reference to the 11th section of ch. 187. This last section extended the operation of the execution to current money and bank notes. The 3d section of ch. 188 provides that the execution shall bind all property, though it is not levied on or capable of being levied on, except as therein stated. It does not say what shall be the attributes of the lien; and we are left to look to the common law to ascertain what is intended by it. But at common law the lien of a fieri facias only existed whilst the execution was in existence; and when the return day of the execution was passed, the lien was gone. It is therefore wholly opposed to the idea of a continuing, indefinite lien created by an execution which has long since expired. See Bac. Abr. Execution, letter D; Payne v. Drew, 4 East 523.
SAMUELS, J.
The statutes of Virginia in force prior to the 1st of July 1850, afforded to a judgment creditor the means of obtaining satisfaction of his claim out of the estate, real, personal or mixed, of the judgment debtor. On and after the day named, when the Code of Virginia went into operation, whilst the creditor retained his right to satisfaction, the process by which he was to attain it was greatly changed by the Code. It is only necessary in this case to advert to the rights and remedies of the creditor in regard to debts due from other persons to the judgment debtor, inasmuch as the subject in controversy here is a debt due from J. J. Daly to Richard H. Daly, the judgment debtor. Under the law as it stood before July 1, 1850, a subject of this nature was reached by causing the debtor to be arrested under a writ of capias ad satisfaciendum, and committed to jail, there to remain until discharged under the insolvent laws. Before such debtor could be so discharged, he was required to surrender every thing of value (with a few specified exceptions) owned by him, including debts due to him, to be applied in a designated mode to the satisfaction of the creditor's demand. If the debtor failed to surrender his estate as the law required, still, by mere operation of law he was divested of all title thereto, and the estate applied, in a way pointed out, to discharge the debt. Section 2, ch. 188, abolishes the writ of ca. sa. in all cases except those provided for in § 1, of which the claim before us is not one.
It was obviously the purpose of the general assembly to save to the creditor the rights which he might have acquired if the former laws had continued to exist, and to give him a new and adequate remedy to enforce his rights. The revisors in their report to the general assembly, p. 926, say, that " This chapter (188) is framed to provide for the creditor (in place of taking the debtor under a capias ad satisfaciendum, and compelling him to take the oath of insolvency) as efficient remedies (in cases not provided for by the 1st and 2d sections) against all estate not subjected to other process, as he now has when the debtor is discharged by taking the oath of insolvency." The revisors accordingly reported a section of the statute giving the creditor the remedy indicated by them; and the general assembly in substance adopted the suggestion, which is found embodied in § 3, ch. 188. This section gives to the fi. fa. a capacity to bind mere choses in action, by making it a lien thereon, with some exceptions, not material in this case. Section 4 prolongs the lien beyond the return day of the fi. fa.; it is directed to cease " whenever the right of the judgment creditor to levy the fi. fa. under which the lien arises, or to levy a new execution on his judgment, ceases or is suspended by a forthcoming bond being given and forfeited, or by supersedeas or other legal process." Section 17 provides for repeated executions, without impairing the lien attaching under the first execution.
It clearly appears in the section last cited, that the legislature intended the lien to continue after the return day of the fi. fa.; otherwise, it would have been useless to provide for preserving a lien if the lien should be regarded as already lost. Looking as well to the intention as to the plain words of the statute, I am of opinion that the lien of Puryear's fi. fa. was in full force when he filed his suggestions under section 10, to make it productive. This lien commenced December 10th, 1850, the day on which the fi. fa. was delivered to the sheriff.
The suit brought by Taylor against Richard H. Daly was brought 25th of October 1851; and on the same day he sued out an attachment under the statute, Code of Virginia, ch. 151, § 1. This attachment was served on J. J. Daly as garnishee October 27, 1851. Thus the liens of Puryear's fi. fa. and Taylor's attachment are brought in conflict. These liens are both given by statute, and are merely legal. It is perfectly obvious that Puryear's lien, being first in point of time, must take precedence of Taylor's. See Erskine v. Staley, 12 Leigh 406.
I am of opinion to reverse the judgment in favor of Taylor, and to render judgment in favor of Puryear.
The other judges concurred in the opinion of SAMUELS, J.
JUDGMENT REVERSED.
[a1] Code, ch. 188, § 3. " Every writ of fieri facias hereafter issued shall, in addition to the effect which it has under ch. 187, be a lien from the time that it is delivered to the sheriff or other officer, to be executed, upon all the personal estate of or to which the judgment debtor is possessed or entitled, (although not levied on, nor capable of being levied on under that chapter,) except in the case of a husband or parent, such things as are exempt from distress or levy by the thirty-fourth section of chapter 49, and except that as against an assignee of any such estate for valuable consideration, or a person making a payment to the judgment debtor, the lien by virtue of this section shall be valid only from the time that he has notice thereof. This section shall not impair a lien acquired by an execution creditor under ch. 187." § 4. " The lien acquired under the preceding section shall cease whenever the right of the judgment creditor to levy the fieri facias under which the said lien arises, or to levy a new execution on his judgment, ceases or is suspended by a forthcoming bond being given and forfeited, or by a supersedeas or other legal process."