upon all the property attached, including the proceeds of any debts or credits collected, and applying the proceeds in extinguishment of the judgment, less the expenses of proceeding upon the judgment, any balance shall remain due. This section makes it the imperative duty of the attachment creditor to exhaust the attachment first, before recurring to any other property to satisfy his claim. The force of this section is such as to give other execution creditors a right to confine the attachment creditor to his own limits before allowing him to come in the general field, whenever he disregards his attachment and issues execution against other property before selling the property attached. Section 440 says that a release of the property attached shall take place upon defendant giving an undertaking. In this case who is the obligee but the attachment creditors? Section 461 speaking of the delivery of property to purchaser says, "Such sale conveys to the purchaser all the right which the debtor had in such property on the day the execution or attachment was levied". Section 462, speaking of the certificate of sale, provides, "Such certificate conveys to the purchaser all the right which the debtor had in such property on the day that the execution or attachment was levied."

One cannot, in the teeth of the language of these sections, but clearly confirm the recognition by the legislature of a lien by attachment, absolutely barring all intervening claims until the proceeds of the property were in the hands of the plaintiff. The recognition of a superior or equal lien or preference created subsequently thereto will completely subvert the plain intent of these sections and the purpose of the legislature.

Prior to the decision of the case of Kuenzle & Streiff v. Juan Villanueva, Ed. A. Keller v. Juan Villanueva, 14 Off. Gaz. 2201, it was thought and so understood by the public, lawyers and even the Court of First Instance of Manila, that Chapter XVIII of the Code of Civil Procedure is a dead letter and attachments are worse than valueless.

Then came the above case which decided the question "whether an attachment levied on specific property gives to the attaching creditor a lien or a right to preference in the nature of a lien, superior to the statutory right to a preference which is recognized in Art. 1924 of the Civil Code in favor of the owner of an after acquired judgment.

Our Supreme Court, after reviewing many cases, speaking through Mr. Justice Carson, said:

"On the other hand, it is very clear that the code provisions whereby specific property is attached 'for the satisfaction of any judgment which may be obtained against' the debtor, and limiting the amount of such property subject to attachment to an amount sufficient to justify such judgment, was intended not only to prevent the debtor from disposing of his property but to prevent other creditors from acquiring liens or preferences in the nature of liens, after the date of the attachment which might make it impossible for the

attachment creditor to satisfy his judgment out of the property attached by
him. Though an attaching creditor has no right by the mere levy of an attach-
ment to dislodge other creditors who have already acquired rights of preference
affecting the property, he is clearly entitled to have the property held, in cus-
todia legis, pending his action and for the satisfaction of any judgment he may
obtain, free of all after, acquired liens and preferences. Otherwise prudent
creditors would rarely assume the risk and expense of attachment proceed-
ings.
We conclude that the issuance and levy of an attachment
on specific property, real or personal, gives to the attaching creditor a lien,
or a right to a preference in the nature of a lien with relation to such property,
subject to all liens or statutory preferences by which such property is affected
at the date of the levy but superior to all liens and statutory preferences by
which the property may be affected subsequent to the date of the levy."

It was the intention of the Philippine Commission in enacting the law of attachments to give the attachment the same force and effect here that it has in the United States, namely, a lien on specific property which holds the property attached for the payment of the judgment in the action in which the attachment was levied; and to hold that an attachment is not a lien on the specific property attached is to destroy the accepted definition of attachment, is to change its nature beyond all recognition, is to alter the terminology of the law, is to defeat the intention of the legislature which enacted the law of attachments and is to use interpretation and construction not to administer the law but to destroy it altogether. To hold that the law of attachments in the Philippine Islands is simply a part of the system of concursos (bankruptcy), that relating to the distribution of the bankrupt's estate, now a misfit in several if not all of its aspects, is, in my judgment, judicial legislation. (Mr. Justice Moreland, in the case of Kuenzle & Streiff (Ltd.) v. Juan Villanueva, and Ed. A. Keller & Co. v. Juan Villanueva, supra.)

"The mortgagee, the factor, or the bottomry lender, is in no better condition than the * attachment creditor. An attempt to make a distinction between them, which would save the rights of one, and impair or destroy those of another, would be judicial legislation—jus dare, not jus dicere. (Peck v. Jenness, 7 How. 612.)"

ATTACHMENT DISSOLVED BY INSOLVENCY.-Section 32 of our Insolvency Law (Act 1956) provides that "an assignment shall operate to dissolve any attachment levied within one month next preceding the commencement of the insolvency proceedings

JUDGMENT

JUDGMENT-LIENS VIEWED FROM AMERICAN STANDPOINT.-At common law, except for debts due the King, the lands of a debtor were not liable to the satisfaction of a judgment against him and consequently no lien thereon was created by the judg

1

ment (Black on Judgments, Vol. 1, Sec. 397). The passage of the statute of Westminster 2d, 13 Edward I, c. 18, marks the beginning of the creation of judgment-lien. By that statute the judgment-creditor could sue out a writ commanding the sheriff to deliver to him all the chattels of the defendant (except oxen and beasts of the plough) and a moiety of his lands until the debt should be levied by a reasonable price or extent. This writ was denominated an elegit. The lands thus held in possession of the sheriff could not be foreclosed by a sale of the realty, but was limited to the reception of the rents and profits which land produced. So it is in fact a qualified or restricted lien. Judgment-lien then is a product of the statute, so that in the absence of express legislative enactment, judgments do not attach as liens to real estate in the modern sense of the term. Hence parties cannot by agreement convert a judgment into a chattel mortgage, or a bill of sale. (Lanning v. Carpenter, 48 N. Y. 408.)

The judgment-lien gives no property in debtor's land; it only gives the judgmentcreditor a right to levy on the property of the debtor, that is, the right to make his lien effectual by a sale under execution, to the exclusion of adverse interests subsequent to the judgment. (Dail v. Freeman, 92 N. Car. 351.)

"A judgment is not a specific lien upon a specific real estate of the judgmentdebtor, but a general lien upon all his real estate, subject to all prior liens, either legal or equitable, irrespective of the knowledge of the judgment-creditor as to the existence of such liens." (Rodgers v. Bonner, 45 N. Y. 379; Lanning v. Carpenter, 48 N. Y. 408; Dozier v. Lewis, 27 Miss. 679; Mansfield v. Gregory. 11 Neb. 297, 9. N. W. Rep. 87.)

It is often required by statutes that judgment shall be duly entered upon the docket before they can become liens upon the debtor's realty, at least as against subsequent purchasers in good faith, although the case of Gordon v. Rixey, 76 Va. 694 held the opposite.

WHAT IS NECESSARY TO JUDGMENT-LIENS.-In order that a judgment should create a lien upon the real property of the debtor, it is first of all necessary that it should be capable of collection by execution. A judgment which by its terms cannot be enforced against the property of a party cannot become a lien thereon. (In re Boyd, 4 Sawy. 262); (2) the judgment should have been rendered by a lawfully and validly constituted court; (3) there must be a valid and subsisting judgment; and (4) the judgment should be for a definite and certain sum of money.

Hamburger v. Easter, 57 Ga. 71;

Lirette v. Carrane, 27 La. Ann. 298;

Eames v. Germania Turn Verein, 74 Ill. 54.

Inasmuch as executors and administrators are not invested with the title to the lands of the decedent, it follows that judgment rendered against them in their representative character have no operation as liens upon realty belonging to the state. (Laidley v. Kline, 8 W. Va. 218; Woodyard v. Polsley, 14 W. Va. 211.)

TERRITORIAL RESTRICTION OF LIEN.-The judgment constitutes a lien only upon the real estate of the debtor lying within the territorial limit of the court pronouncing it. A judgment rendered in one state or country is not a lien upon land in another state or country. (Billan v. Herchlebrath, 23 Ind. 71.) In order to have that effect, it must be the basis of a suit or judgment in the second state or country, and then the lien will attach as an incident of the second judgment, not the first. (Black on Judgments, p. 512.)

LIENS BINDS REAL ESTATE. Statutes usually provide that judgments shall be a lien on the "real estate" or "real property" of the defendant. Personal property is, therefore, excluded from the operation of the judgment.

IN THE PHILIPPINE ISLANDS

There is no such thing, in the Philippine Islands, as a lien by judgment. The only statutory reference to preference of claims arising from final judgment is found in Subsection 3 of Article 1924 of the Civil Code, which reads:

"With regard to other real and personal property of the debtor, the following are entitled to preference:

'3. Credits that without special privilege appear in a public instrument and final judgment.'

Our Supreme Court in the case of Kuenzle & Streiff v. Villanueva, Ed. A. Keller v. Villanueva, 14 Official Gazette 2201, had occasion to construe said subsection. The following is a quotation:

"Construing these provisions we have carefully indicated that these preferences do not constitute a lien upon the property of the debtor in the ordinary sense of the word as used in the English and American Jurisprudence, the statutory right secured to the creditor being merely a right to a preference in the distribution of the funds of the estate of the judgment or record debtor, in those cases wherein by intervention or otherwise, he is a proper party to the distribution proceedings and duly asserts his rights as a preferred creditor. We have had occasion also to indicate that these statutory preferences in favor of record and judgment creditors attach to the proceeds of the sale of all or any part of the property of the debtor, both real and personal, which may be the subject of distribution proceedings; it always being understood, however, that by the express terms of the various provisions of Chapter 3, of Title 17 of the Civil Code, these preferences are subordinated to credits which, under the provisions of that chapter, enjoy special preferences with regard to specific personal or real property, and also to the different classes of credits mentioned in subsections 1 and 2 of Art. 1924."

Under the Civil Code a public document, even when duly registered or protocoled, gives notice to the world only of the facts which it contains, i. e., its contents. If it does not speak of property, real or personal, and charge or incumber it, then no

notice is given to the world on that subject. But a judgment is not a public document. It cannot be recorded or protocoled. It is notice to no one and produces no effect whatever as to third persons under the law of the Philippine Islands. Third persons are entitled to notice before they can be deprived of their rights. It is the invariable rule of the Civil Code that a third person who deals with property cannot be prejudiced by any charge or incumbrance thereon of which he has no notice. (Mr. Justice Moreland in the case of Kuenzle & Streiff (Ltd.) v. Juan Villanueva; Ed. A. Keller & Co. v. Juan Villanueva, 14 Off. Gaz. 2215.)

RIGHT TO A PREFERENCE IN THE FUNDS INCLUDES REAL AS WELL AS PERSONAL PROPERTY. As shown by the quotation, the right to a preference in the distribution of the funds secured to the creditor is extensive to personal property as distinguished from the American law, which makes the judgment extensive only to real estate, thereby excluding personal property from its operation.

DOES THE RIGHT of Preference EXIST IN Favor of the Judgment Creditor IN CASE OF APPEAL FROM HIS JUDGMENT? Our Supreme Court, in the case of José McMicking v. Crisanto Lichauco, 12 Official Gazette 1296, held that the right of preference should be secured to the judgment creditor notwithstanding the appeal from his judgment; though of course the decree for the distribution of the funds should be so formulated that the amount to which the judgment creditor is entitled under his judgment will not be definitely turned over to him until and unless his judgment is affirmed on appeal; and the decree should further provide for the disposition of the amount thus retained, in the event that his judgment should be reversed in whole or in part.

The consensus of opinion among American courts sustains a similar principle and holds that the lien of a judgment is not necessarily destroyed by the perfecting of an appeal therefrom.

Black on Judgments, Vol. I, par. 473;

Thomson's Administrator v. Chapman's Administrator, 83 Va., 213;

Curtis v. Root, 28 Ill., 367;

Planters Bank v. Calvit, 3 Smedes and Marshall, Miss., 143;

Hardee v. Stovall, 1 Ga., 92;

Dewey v. Latson, 6 Cal. 130;

Moore v. Rittenhouse, 15 Ohio St., 310.

JUDGMENT VACATED BY INSOLVENCY.-Section 32 of our Insolvency Law (Act 1956) provides that "an assignment shall operate to vacate and set aside any judgment entered in any action commenced within thirty days prior to the commencement of insolvency proceedings, and shall set aside and vacate any judgment entered by default or consent of the debtor within thirty days immediately prior to the commencement of the insolvency proceedings."