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 .
In some states, the delivery to the sheriff of a writ of execution under a judgment creates a lien on such property of the judgment defendant as is subject to levy under the execution.7 In most states, however, the mere delivery of the writ to the sheriff does not create any lien, and a levy under the writ is necessary to make the claim of the creditor effective as against adverse claims to and equities in the debtor's property.8
So far as a lien already exists by force of the judgment, any additional lien by virtue of the execution is usually of no value,9 and, in view of the fact that the former lien is recognized in most of the states, there seems to be but slight occasion for the consideration of an execution lien in connection with the law of land.10
The lien of an execution, whether arising from the issue or the levy of an execution, is superior to all rights subsequently arising, as when the land is sold or incumbered by the execution defendant after the inFla. 437, 11 Am. St. Rep. 381, 2 So. 825; Cockey v. Milne, 16 Md. 200; Nason v. Grant, 21 Me. 160; Lackey v. Seibert, 23 Mo. 85; Westevelt v. Hagge, 61 Neb. 647, 54 L. R. A. 333, 85 N. W. 852; Van Camp v. Searle, 79 Hun. (N. Y.) 134, 29 N. Y. Supp. 757; Mattocks v. Farrington, 2 Hask. 331, Fed. Cas. No. 9,298.
7. Dailey v. Burke, 28 Ala. 328; Whitehead v. Woodruff, 11 Bush ception of the lien.11 As a general rule, it takes effect only upon the actual title of the judgment defendant, and is postponed to all rights and equities which may have accrued before its inception.12 This is not, however, the case in that class of states, before referred to, in which a judgment creditor is regarded as within the protection of the recording acts, and there the lien of an execution takes precedence of unrecorded conveyances, mortgages, or other incumbrances existing at the inception of the lien, but of which the creditor has no notice.13
(Ky.) 209; Williams v. Mellor, 12 Colo. 1, 19 Pac. 839; Doe d. McLean v. Upchurch, 6 N. C. 353; 2 Freeman, Executions, Sec. 200.
8. See Blood v. Light, 38 Cal. 649, 99 Am. Dec. 441; Reeves v. Sebern, 16 Iowa, 234, 85 Am. Dec. 513; Albrecht v. Long. 25 Minn. 163; Millspaugh v. Mitchell, 8
Barb. (N. Y.) 333; Sawyers v. Sawyers, 93 N. C. 321; Smith Y. Hogg, 52 Ohio St. 527, 40 N. E. 406; Wilson's Appeal, 90 Pa. St. 370; Anderson v. Taylor, 6 Lea (Tenn.) 382; 2 Freeman, Executions, Sec. 202.
9. See Bagley v. Ward, 37 Cal. 121, 99 Am. Dec. 256; Riland v. Eckert, 23 Pa. St. 215; Mclntyre v. Sanford, 9 Daly (N. Y.) 21; Farrior v. Houston, 100 N. C. 369, 6 Am. St. Rep. 597, 6 S. E. 72.
10. In states where an execution may be issued to another county without first docketing or recording the judgment therein, the effect of the execution, when so issued, as creating a priority or "lien," may be important.