Slike strani
PDF
ePub

such purchaser derives title from one of the parties litigant. If he claims adversely to both parties by title paramount, the proceedings to which he is neither party nor privy can not bind him.

The common law rule requiring purchasers, at their peril, to take notice of the pendency of suits in courts of justice for the recovery of the lands they are about to purchase, although it is really impossible that they should actually know that such suits have been commenced, has always been considered a hard rule, and is by no means a favorite with the courts. In fact, it has only been tolerated from a supposed necessity. Usually the filing of a bill of complaint is itself a sufficient notice to the world, so as to defeat the transfer of property by the defendant made subsequent to the filing; 44 but in a large number of states, particularly where the provisions of the New York Code have been followed, a material change has been made this rigorous rule. In these states the statute provides that the pendency of a suit shall not be notice to a stranger until a formal notice thereof has been filed in the office of the recorder of deeds of the county where the land is situated, and that as to one having no actual notice, he may, in good faith, and for a valuable consideration, acquire a valid title until such notice is filed.

Where the suit is still pending the notice may be shown as an appendix. If the proceedings are shown, as they should be after the bill has been filed, its orderly arrangement would be to precede the synopsis of the court proceedings. Where no notice is required the bill itself furnishes notice as above explained. The

· Warvelle on Abstracts, 523; Van

Zant vs. Van Zant, 23 III., 536;

Davis vs. Life Ins. Co., 84 II., 508.

practical purpose of a notice of pendency of suit is to restrain strangers from acquiring interests in the subject-matter of the litigation during the progress of the suit.

SECTION 25. ATTACHMENT. The office of an attachment is simply to secure to a creditor the property which a debtor has at the time the writ is levied, so that it may be seized and sold in satisfaction of the debt, after judgment and execution shall have been obtained. In other words, it reserves the land to satisfy any judgment that may be rendered in the suit and creates a lien in favor of such judgment in advance of its rendition. Every person into whose hands the property may subsequently come, takes it charged with this lien.

Though the remedy by attachment is purely statutory, and while there exists in many particulars a wide dissimilarity between the attachment acts of the several states, there is yet a marked uniformity in the general steps that must be pursued to render it available, and its effect in all the states is nearly identical. The suit is instituted by the filing of a statutory affidavit, whereupon a writ is issued. This is followed by a levy, which, in the case of land, must, of necessity, be a paper levy. The levy is initiated by the endorsement of the fact upon the writ, and perfected by the return thereof, while notice is afforded by the filing of a certificate of levy with the recorder of deeds. Until such certificate has been filed the attachment does not become effective as to third persons.

In preparing an abstract the certificate of levy would probably be all that is required to furnish a notice lis pendens, but in practice it is customary to show a brief synopsis of the court proceedings. Neither in this, nor in other cases where court proceedings are shown, is it customary to give more than brief references, or statements of steps taken, and where greater detail is desired it is obtained by a transcript of the record and papers, or by a personal inspection of the files. Where the action is duly prosecuted and is followed by judgment, execution and sale, the attachment may be indicated only by reference to the issue, levy and return of the writ and filing of certificate, the validity of the sale depending on the judgment and execution.

SECTION 26. JUDGMENTS AND DECREES.

Any distinction between judgments and decrees is fanciful rather than real, since all adjudications by a court of competent jurisdiction are essentially judgments, yet in practice the term “decree” is used to distinguish the determinations and orders of a court of equity, while the term “judgment” is generally employed to denote the adjudications of a law tribunal. Judgments are usually for damages, and provide for a definite recovery

in
money;

decrees contemplate some method of affirmative relief or operate in some specific way in answer to the prayer of the complaint.

In examinations of title, judgments in personam are important only as they serve to incumber the land of the judgment debtor with a statutory lien, and when the lien has been extinguished, either by lapse of time or satisfaction of the judgment, they become of no importance whatever and are wholly disregarded. Decrees, on the other hand, operating directly upon the land, are of controlling and continuing efficacy. They become a part of the general course of title, and through whatever mutations it may afterward pass they always remain essential links of the chain.45

Where the abstract shows a judgment duly renddered against any of the parties in interest from which an appeal has been taken, notwithstanding that a bond has been given, such judgment must yet be noted as defect of title. The appeal does not vacate the judgment nor destroy its lien. Its only effect is to operate as a stay of proceedings for enforcement during the pendency of the appeal, and in case the judgment is affirmed it has practically the same force and effect as though no appeal had been taken. 47

The lien of a judgment rendered by a State court attaches only to the land of the debtor situate within the county for which the court is held, or in which a transcript has been regularly docketed, and a certificate covering only the county courts of record is all that is necessary to fully apprise intending purchasers of the condition of the title so far as the same may be affected by the adjudications of the State courts. At the present time the territorial lien of a judgment of a Federal court is only co-extensive with the limits of the county in which it is rendered. This, however, is a construction of the statute by the courts and not a direct enactment. Formerly a Federal court judgment was effective throughout the district in which the court sat.

A judgment, whether of State or Federal courts, is not a specific lien upon any particular land of the judgment debtor, but extends generally upon all of his proprietory holdings, subject, however, to prior liens, legal or equitable. w Warvelle on Abstracts, 530.

a Walker vs. Doane, 108 II., 236. * Oakes vs. Williams, 107 Il., 154.

The lien of judgments upon real estate is regulated by statute, and the general rule is, that the lien continues for ten years

48 from the rendition of the judgment, and no longer, except that in a few enumerated cases where a party is restrained from enforcing his judgment by appeal, injunction, etc., the time so consumed is excluded from the computation. A purchaser from a judgment defendant after the expiration of ten years from the rendition of the judgment, or such other period of limitation as the statute may prescribe, takes the land discharged from the lien of same, unless it has been preserved by some of the exceptions contained in the statute. Ordinarily a search for judgments covering a period of ten years is sufficient, and it is not customary for the examiner to certify judgments for a longer time. Unless specially excepted, neither injunction, appeal nor other cause will have the effect to prolong the lien beyond the statutory period, as against a purchaser from the judgment debtor.50

No set form of words is necessary to be employed in rendering judgments, provided they are certain and find the sum for which they are rendered, but failing in this they are fatally defective. The certainty required has reference both to the parties and the recovery, for the judgment is regarded as a unit and must comprehend all the parties then before the court, while the recovery must be certain and specific in the amount with nothing left to implication. Other48 In some states for a shorter

329; Gridley vs. Watson, 53 period. Thus, in Illinois for

III., 186. only seven years. In most 50 Tucker vs. Shade, 25 Ohio St., states, however, the term is

355; Houston vs. Houston, 67 fixed at ten years, as stated in

Ind., 276.

s! Railway Co. vs. Chicago, 53 III., " Applegate vs. Edwards, 45 Ind., 80; Carpenter vs. Sherby, 71

II., 427.

the text.

« PrejšnjaNaprej »