1877. March Term. Borst V. & als. land. The lien resulted from the mandate of the writ to deliver to the creditor, by reasonable price and extent, a moiety of all the lands and tenements of the debtor, whereof he was seized at the date of the judg ment or at any time afterwards. The lien was an inci- Nalle dent of the writ and depended for its existence and continuance upon the capacity to sue out the writ. As long as this capacity lasted, even although revived after being temporarily suspended, the lien continued, and whenever it finally ceased, the lien which was dependent upon it was extinguished. As the mandate of the writ extended to all the lands and tenements of which the debtor was seized at the date of the judgment, or at any time afterwards, it was by force of this mandate also that the lien of the judgment over-reached all subsequent conveyances, although made to purchasers for valuable consideration without notice of the judgment, and extended to all the lands of the debtor within the jurisdiction of the state. In the interest and for the protection of such purchasers, the act of March 3, 1843, was passed, which provided for the docketing of judgments; and further, that "no judgment, decree, bond or recognizance thereafter rendered, should bind the land of any party to the same against a bona fide purchaser for valuable consideration without notice, unless the same should be docketed in the county or corporation in which the land lay, within twelve months after the rendition or forfeiture of such judgment, decree, bond, or recognizance, or ninety days before such land shall have been conveyed to such purchaser." Except as thus modified, in respect to purchasers, by the act of 1843, the lien of the judgment continued the same, in all respects, as to its nature, extent, and the mode of enforcing it, until the general revision of 1877 March the laws in 1849. Up to that time, as we have seen, it was a mere incident of the writ of elegit, resulting by construction from the mandate of the writ, and dependent for its existence and continuance on the caNalle pacity to sue out the writ. Borst V. & als. It was now made for the first time, as to judgments thereafter to be rendered, an express, direct, positive, absolute lien on all the real estate of or to which the judgment debtor should be possessed or entitled, at or after the date of the judgment, or if it was rendered in court, at or after the commencement of the term at which it was so rendered, with the same qualification as to purchasers for valuable consideration without notice, as was made by the act of 1843. Code of 1860, ch. 186, §§ 6, 8. The writ of elegit was preserved and made to conform to the statutory lien of the judgment, and an additional remedy in equity was given for the enforcement of the lien. Idem, § 9. The lien of the judgment being now express, positive, and in no way dependent on the elegit, and the remedy in equity being preferred in practice, the elegit soon fell into disuse, and was finally abolished by the legislature. Code of 1873, ch. 183, § 26, p. 1175. It can hardly be said of such a lien as we have described, that it is not a "civil right" and one of a high order; seeing that it is, under the law as it stands, and by force of the law, a plain, direct, positive charge upon real estate. Having once attached, it continues, unless it is in some way discharged, as long as the real estate on which it rests remains the property of the judgment debtor. It accompanies the land in its descent to the heirs, follows it into the possession of volunteers, and even into the hands of purchasers for value, if they have notice, or even if they do not have notice, provided the judgment is docketed in the manner, and within the time prescribed by law. It is a mistake to suppose that the 8th section of ch. 186, of the Code of 1860, (amended in the Code of 1873, ch. 182, § 8,) was intended to create a lien against the purchaser by docketing the judgment. The lien is created by section 6, and attaches to all the real estate of the debtor, except so far as it is qualified by section 8. The qualification is, that it shall not extend to real estate aliened after judgment to purchasers for value who have no notice of the judgment, unless the judgment be docketed in the manner and within the time prescribed. The implication is irresistible, that if so docketed it shall be a lien : that is, that the lien which was created by section 6 shall continue as to such purchasers. Section 8 is substantially the same as section 4, of the act of 1843 before referred to, as may be seen by comparing the two sections. In the opinion of Judge Stanard, in Taylor's adm'r v. Spindle, 2 Gratt. 44, 69, in which Cabell and Baldwin (Judges) concurred, discussing the nature and extent of the judgment lien under the law as it then stood, and referring to the act of 1843, he said: "The late act of March, 1843, respecting the docketing of judg ments, clearly evinces that in the opinion of the legislature, the lien of the judgment creditor operated from the date of the judgment, and continued thenceforward without qualification or impediment, while the creditor had or could get the capacity to issue the elegit on it, irrespective of intervening abatements, suspensions or delays; and that the judgments docketed according to that act, would in like manner, preserve the past, and continue the existing lien indefinitely: that is, until from some supervening cause, it should be lost by the loss 1877. March Term. Borst V. Nalle &als. 1877 of the rightful capacity to sue execution on the judg March Term. Borst V. Nalle & als. ment." We have said enough, we think, to show that by a proper construction of the several statutes, the lien of a judgment attaches to and follows the lands of the debtor into the hands of a purchaser for value without notice, and continues, provided the judgment is docketed; and if so docketed, that it is a lien from the date of the judgment as against such a purchaser, in like manner and with like effect, as against the debtor: and while the docketing of a judgment does not per se create a lien as against a purchaser for value without notice, yet it is an act necessary under our statutes to be done in order to preserve or prevent the loss of the lien as against such purchaser. It follows, therefore, that, in our opinion, in computing the time within which a judgment is required by section 8, ch. 186, of the Code of 1860, to be docketed in order to preserve the lien of such judgment against purchasers, the period which elapsed between the 17th day of April 1861 and the 2nd day of March 1866 is not to be computed as a part of such time, and therefore the judgment of Nalle, which appears to have been docketed on the 3rd day of November, 1865, has the same binding force against the alienees of Ross and Beckham in respect of the lands actually owned and aliened by the latter, as if no conveyances had been made by them. We have dwelt longer on this branch of the case than we otherwise should have done, because the learned counsel for the appellant seemed to suppose, that in deciding the case of Hill & als. v. Rixey & als., supra, the court was not in that case fully possessed of all the views presented in argument in this. We proceed to consider the other questions presented by the assignment of errors. These relate altogether to the "Berry Hill” tract of land conveyed by the executors of Mrs. Taylor to William B. Ross, one of the judgment debtors, and by Ross conveyed to the appellant Borst. If John C. Thom was a competent witness, and his testimony was admissible to establish the facts which were intended to be proved by it, then beyond all dispute it is clear, that William B. Ross never at any time had any estate in this tract of land beyond the naked legal title, and that title he had for an instant only. He never had, even for an instant, the least beneficial interest in it. He was a mere conduit to pass the legal title to Borst the real owner. This being so, and the recording acts having no application to the case, there was nothing substantial to which the lien of Nalle's judgment could attach. Authorities without number might be cited to show, that where statutory enactments do not interfere, the creditor can never get by his judgment more than his debtor really owns, and to this he will be confined, as he should be, by courts of equity. In support of this proposition the following apposite authorities are cited by the appellant's counsel. White v. Carpenter, 2 Paige R. 217, 238, 266-7; Kiersted v. Avery, 4 Paige R. 9; Buchan v. Sumner, 2 Barb. Ch. R. 165, 207; Lownsbury v. Purdy, 11 Barb. R. 490; Towsley v. McDonald, 32 Barb. R. 604; Sieman v. Austin, 33 Barb. R. 9; Sieman v. Schenck, 29 New York R. 598; Smith v. Gage, 41 Barb. R. 60, 71-75; Schlæper v. Corson, 52 Barb. R. 510; Robinson v. Robinson, 22 Iowa R. 427; Thomas v. Kennedy, 24 Iowa R. 397; Brown v. Pierce, 7 Wall. 205, 218; Baker v. Morton, 12 Wall. U. S. R. 150. Was John C. Thom a competent witness? He was 1877. March Term. Borst V. Nalle & als. |