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 .
At common law, a creditor had no remedy against the lands of his debtor for the satisfaction of his claim, but by 13 Edw. I. c. 18 37 it was provided that, when a debt is recovered or damages awarded, it shall be thenceforth "in the election" of the creditor to have a writ of fieri facias against the goods and chattels of the debtor, or else a writ that the sheriff deliver to him all the chattels of the debtor and the one-half of his land. The writ issued to the sheriff under this statute was called a writ of elegit, because it stated that the creditor had elected (elegit) to pursue the remedy furnished by the statute. In construing this statute it was decided that the creditor could enforce his remedy against the lands even in the hands of one to whom they had been sold by the debtor after the recovery of the judgment, and this in effect made the judgment a lien or incumbrance on all the lands of the debtor.38 In one or two states the lien has been regarded as existent by force of this statute, or of a colonial statute giving a right to levy an execution,39 but it is usually considered that no such lien exists, in the absence of a state statutory provision therefor,40 and there is, in most of the states, such a provision subjecting the judgment debtor's land, or certain interests therein, to the lien of a judgment.41
33, 48 Am. Dec. 84; Paddock v. Stout, 121 III. 571, 13 N. E. 182; Bryant v. Grady, 98 Me. 389, 57 Atl. 92; McKeen v. Haseltine, 46 Minn. 426, 49 N. W. 195; Ehlers v. Elder, 51 Miss. 499; Smith & Son Co. v. Parsons, 37 Neb. 677, 56 N. W. 326; Shaw v. First Ass'n Reformed Church, 39 Pa. St. 226.
37. Stat. Westminster II. (A. D. 1285).
38. See Williams, Real Prop. (21st Ed.) 269; Massingill v. Downs, 7 How. (U. S.) 760, 12 L. Ed. 903; Morsell v. First Nat.
Bank of Washington, 91 U. S. 357, 23 L. Ed. 436.
39. United States v. Morrison, 4 Pet. (U. S.) 124, 7 L. Ed. 804; Coombs v. Jordan, 3 Bland Ch. (Md.) 284, 22 Am. Dec. 236; Borst v. Nalle, 28 Grat. (Va.) 423; Hutcheson v. Grubbs, 80 Va. 254.
40. Woods v. Mains, 1 G. Greene (Iowa), 275; Thompson v. Avery, 11 Utah, 214, 39 Pac. 829; Shrew v. Jones, 2 McLean, 78, Fed. Cas. No. 12,818. See Groves' Appeal, 68 Pa. St. 143.
41. In the New England states,
It has been frequently remarked by the courts that the lien of a judgment does not involve any property or right in the lands subject thereto, but merely confers a right or power to levy thereon, for the purpose of satisfying the judgment, to the exclusion or destruction of rights accruing to others after the inception of the lien.42 The exact significance of the statement that the lien does not involve any property or right in the land is not entirely clear. The same might, presumably, be said of any lien, distinguishing, however, the case of the common law mortgage, which, while involving, for most purposes, in the view of a court of equity, merely a lien, ordinarily vests the legal title in the mortgagee.43 The lien of a judgment differs from other liens, however, in that it attaches, not to any specific land, but to all the land owned by the debtor, subject to certain qualifications, in some states, as to the character of his ownership. And it would seem that it is this general nature of the judgment lien, rather than the fact that it does not involve any proprietary right in the land, that serves to distinguish it from other liens. That the lien involves no property right in the land has in one case been referred to as ground for refusing to allow the judgment creditor to sue on account of waste,44 while in another case this conclusion the judgment creditor has no lien, but he may secure payment of such judgment as may be rendered by the previous issuance of an attachment. See post, 671.
42. Conard v. Atlantic Ins. Co., 1 Pet. (U. S.) 386, 442, 7 L. Ed. 189; Elston v. Castor, 101 Ind. 426, 51 Am. Rep. 754; Young v. Templeton, 4 La. Ann. 254, 50 Am. Dec. 563; Ashton v. Slater, 19 Minn. 347; Fonte v. Fairman, 48 Miss. 536; Davis v. Owenby, 14 Mo. 170, 55 Am. Dec. 105; Mansfield v. Gregory, 11 Neb. 297, 9 N.
W. 87; Bruce v. Nicholson, 109 N. C. 202, 26 Am. St. Rep. 562, 13 S. E. 790; Fetterman v. Murphy, 4 Watts. (Pa.) 424, 28 Am. Dec. 729; Freeman, Judgments, Sec. 338; 1 Black, Judgments, Sec. 400.
43. The statement was first made for the purpose of distinguishing the case of a judgment lien from that of a mortgage, as regards the applicability of the doctrine of "tacking." Brace v. Duchess of Marlborough, 2 P. Wms. 491.
44. Independent School Dist, of was based on the general, rather than specific, character of the lien.45 In one case, however, without Specific reference to the nature of the judgment lien in this regard, an injunction against the removal of fixtures was issued on the petition of the judgment creditor.46
- Character of the judgment. In order that a judgment may constitute a lien, it must be one on which execution could immediately issue,47 and consequently it must be a final, and not an interlocutory, judgment,48 and must be for a definite sum of money.49 Subject to these requirements, the fact that the judgment is by confession,50 or by default,51 is immaterial.
The judgment of a justice of the peace or of any other inferior court usually, by the express provision of the statute, becomes a lien only after the filing of a transcript or record thereof in one of the superior courts.52
The judgment of a federal court is, by act of congress, made a lien on property throughout the state in which it is rendered to the same extent, and subject to
West Point v. Werner, 43 Iowa, 643.
45. Lanning v. Carpenter, 48 N. Y. 408, 412.
46. Witmer's Appeal, 45 Pa. St. 455, 84 Am. Dec. 505. And in Scottish American Mortgage Co. v Follansbee, 14 Fed. 125, the court recognized a right in the judgment creditor to maintain a suit to remove a cloud from the title.
47. 2 Freeman, Judgments, Sec. 340; Davidson v. Myers, 24 Md. 538; In re Boyd, 4 Sawy. 262, Fed. Cas. No. 1746; Towner v. Wells, 8 Ohio, 136.