This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
72. See 1 Black, Judgments, Sec.Sec. 455, 456.
- Priorities. The whole purpose and effect of a judgment lien is to render the lands of the debtor liable to execution under the judgment, without reference to any rights subsequently acquired by other persons, and that it does have such effect has never been questioned.74 The question, however, whether a judgment lien can bind the land as against rights acquired by others before the rendition of the judgment is a subject as to which the law of the various states is not wholly in accord.
Apart from statute, the judgment lien attaches only to such interest as the debtor has at the time of the inception of the lien, and consequently in case he has previously executed a conveyance of or a mortgage on the land, although this is not known to the judgment creditor, the conveyance or mortgage takes precedence of the judgment. The judgment creditor is not regarded as a purchaser for value within the protection of the recording acts.75 In a very considerable number
73. Hulbert v. Hulbert, 216 N. Y. 430, 111 N. E. 70. The doctrine of this case is well discussed in editorial notes, 16 Columbia Law Rev. 237, 29 Harv. Law Rev. 455.
74. See Fawcetts v. Kimmey. 33 Ala. 261; Trapnall v. Richardson, 13 Ark. 543, 58 Am. Dec. 338; Clark v. Merriam, 83 Ind. 58; Hop-pock v. Shober, 69 N. C. 153: Loomis v. Second German Building Ass'n, 37 Ohio St. 392; Anderson v. Neff, 11 Serg. & R. (Pa.) 208.
75. Wilcoxon v. Miller, 49 Cal. 194; Donovan v. Simmons, 96 Ga. 340, 22 S. E. 966; Pierce v.
Spear, 94 Ind. 127; Seevers v. De lashmutt, 11 Iowa, 174, 77 Am. Dec. 139; Moorman v. Gibbs, 75 Iowa, 537, 39 N. W. 832; Mc-Calla v. Investment Co., 77 Kan. 770,14L.R.A.. (N. S.) 128, 94 Pac. 126; Knell v. Green Street Building Ass'n, 34 Md. 67; Sap-pington v. Oeschli, 49 Mo. 244; Hope v. Blair, 105 Mo. 85, 24 Am. St. Rep. 366, 16 S. W. 595; Vaughn v. Schmalse, 10 Mont. 186, 10 L. R. A. 411, 25 Pac. 102; Mahoney v. Salsbury, 83 Neb. 488, 131 Am. St. Rep. 647, 120 N. W. 144; Harney v. First Nat. Bank, 52 N. J. Eq. 697, 29 Atl. 221; Schroeder v. Gurney, 73 N. Y. 430; Okla of states, however, the recording acts specifically protect creditors as well as purchasers, and in such states the judgment lien will take precedence of a previous unrecorded conveyance provided, usually, the creditor did not have notice thereof at the time of the acquisition of the lien,76
Not only will the judgment, apart from statute, not take precedence over a prior conveyance of the legal title, but it will also not take precedence over preexisting equities, the interest of the debtor, to which the lien attaches, being limited and qualified by such equities,77 and this regardless of the fact that the judgment creditor had no notice thereof.78 This latter view, that the creditor's lack of notice of the equity does not entitle him to priority, was adopted on the theory that, though the creditor has in a sense paid a consideration, he has not advanced money on the security of specific land, and is consequently not disappointed, in the sense that a mortgagee for value would be disappointed, if postponed to prior equities of which he is ignorant.79 It is on this theory that the rights of a vendee under an executory contract of sale are regarded as superior to the lien of a judgment against the vendor,80 and the rights of a cestui que trust are upheld homa State Bank of Wapanucka as against a lien under a judgment against the trustee.81 So, an equitable lien in favor of a grantor for a part of the price has in some states been held to be superior to a lien subsequently attaching under a judgment against the grantee;82 and the same principle might apply in the case of any other equitable lien.83 In states, however, in which a creditor is regarded as within the protection of the recording acts, the judgment will take priority over a pre-existing equity which does not appear of record,84 provided at least such equity is susceptible of record,85 and provided, ordinarily, the judgment creditor was without notice of the equity at the time of obtaining the judgment.
T. Burnett, - Okla. -, 162
Pac. 1124; Hackett v. Callender, 32 Vt. 97.
76. Ante, Sec. 567(m).
77. Brown v. Pierce, 7 Wall. (U. S.) 205, 19 L. Ed. 134; Shirk v. Thomas, 121 Ind. 147, 16 Am. St Rep. 381, 22 N. E. 976; Apple v Robb, 54 Ind. App. 359, 103 N. E. 12; Mansfield v. Gregory, 11 Neb. 297, 9 N. W. 87; White v. Denman, 1 Ohio St. 110; Miller v. Baker, 166 Pa. St. 414, 45 Am. St. Rep. 680, 31 Atl. 121; Blaha v. Borgman, 142 Wis. 43, 124 N. W. 1047. See Black, Judgments, Sec. 445; 2 Freeman, Judgments, Sec. 357; 2 Pomeroy, Eq. Jur., 721.
78. Rodgers v. Bonner, 45 N. Y. 379; Doswell v. Adler, 28 Ark. 82; Wharton v. Wilson, 60 Ind. 591; Valentine v. Seiss, 79 Md. 187. And see cases cited in the preceding note.
79. Finch v. Winchelsea, 1 P. Wms. 277; Burgh v. Francis, 1 Eq. Cas. Abr. 320, pl. 1; Whit-worth v. Gaugain, 3 Hare, 416.
80. See ante, note 68.
In the case of a mortgage given for the price of land as a part of the transaction of purchase, no beneficial interest to which the judgment lien can attach is considered to vest in the mortgagor, as against the mortgagee, and it is immaterial that the mortgage is given, not to the vendor, but to a third person, who advances the purchase money.86
81. Withnell v. Courtland Wagon Co. (C. C.) 25 Fed. 372; Hays v. Regar, 102 Ind. 524, 1 N. E. 386; Thomas v. Kennedy, 24 Iowa, 397, 95 Am. Dec. 740; Denzler v. O'Keefe, 34 N. J. Eq. 361.
82. Ante, Sec. 664, note 97.
83. Wharton v. Wilson, 60 Ind. 591; Blankenship v. Douglas, 26 Tex. 225, 82 Am. Dec. 608; Martin v. Nixon, 92 Mo. 26, 4 S. W. 503; Galway v. Mulchow, 7 Neb 285; Dwight v. Newell, 3 N. Y. 185; 2 Pomeroy, Eq. Jur. Sec. 721.
84. Humphrey v. Copeland, 54 Ga. 543; Massey v. Westcott, 40 111. 160; Thorpe v. Helmer, 275 111. 86, 113 N. E. 954; Cutler v. Ammon, 65 Iowa, 281, 21 N. W. 604; Wilcox v. Leominister Nat.
Bank, 43 Minn. 541, 19 Am. St. Reu. 259, 45 N. W. 1136; Buchanan v. Kimes, 2 Baxt. (Tenn.) 275; 2 Pomeroy, Eq. Jur. Sec.Sec. 722, 723.
85. Luke v. Smith, 13 Ariz. 155, 108 Pac. 494, 227 U. S. 739, 57 L. Ed. 558; Waterman v. Buckingham, 79 Conn. 286, 64 Atl. 212; Hunter v. State Bank, 65 Fla. 202, 61 So. 497, (semble); School District No. 10 v. Peterson, 74 Minn. 122, 73 Am. St. Rep. 337, 76 N. W. 1126; Calvert v. Roche, 59 Tex. 463; Yoe v. Montgomery, 68 Tex. 338, 4 S. W. 622; Cetti v. Wilson, - Tex. Civ. App. -, 168 S. W. 996. But see Yarnell v. Brown, 170 111. 362, 62 Am. St. Rep. 380, 48 N. E. 909.
86. Curtis v. Root, 20 111. 53;
3 R. P.- 33
At common law, a judgment related back to, and was regarded as rendered upon, the first day of the term. This rule still applies in some states, so as to give the lien of the judgment precedence over a prior conveyance made during the term.87 More generally, however, the lien attaches either at the time of the rendition of the judgment88 or at the time of its docketing or record.89