Adams v. Dyer — 8 Johns. 347

Majority

p. 347

Adams against Dyer. Conklin and others against Dyer.

Headnote

Where two judgments in favonr of different piaintifts against fondant™0v.-cré ®j,ed0ann'the same liay> an(l,one ot* them took out a fi- fa- anti had the lands of the defendant seized for sale' Vby"the weekf^-foretho ci,cc'u'.nn,on thu other judgment was delivered, and the sheriff afterwards sold the adverUseheld, ’ that the beenbegnnw'bf fxecute<1> before the second was delivered to the sherifi, bad g'.iiued a priority as to the time of sale, whiehamia by* the ''second

the court will inquire into the parts of a day, or receive affidavits of the exact time of filing different judgments on the same day, so as to determine the pvioril) of the lien?

Whether the clerks ought not to mark the exact time or hour of nlingjudgmcnts? Qitícre»

JUDGMENTS, in each of the above causes, were 7 signed, filed, and docketed on the 8th of October, 1810; . , - „ . , r a,7 , . , m the first cause, in the city of Albany, and, in the second cause, in the city of New-York. Op the same day, the 8th of October, a fieri facias was isshed in the first cause, and delivered to the sheriff of Albany, on which J was endorsed, “ Levy 110 dollars, with interest, from , r ’ . J . , , ’ the 1st or October, 1810, till paid, with the sheriff s fees.” Under this execution the sheriff, on the 11th of October, 1810, advertised the real property of the defendant for sale on the 24th day of November, 1810. On J 7 the 2d of November, 1810, a test. fi. fa. was received bv - . ~ J y the sheriff of Albany m the second cause, on which was endorsed, “ Levy 166 dollars and 72 cents, besides poundage.” On the 24th of November, the real property of the defendant was sold, and the sum of 104 dollars and 63 cents, on the first execution, paid into 7 7 r the hands of the sheriff. The plaintiffs, in each of the eauses, claimed the money of the sheriff, on the ground , , . , . , i , , that their respective judgments were docketed at an earlier hour of the same day; and affidavits as to the precise time of filing the judgment rolls, were respectively submitted to the court, with a case, containing the statement of facts. The sheriff had made a special return to each execution, stating the above facts, and that the defendants had no goods and chattels, nor any other real property, than what was sold on the 24th of November, and that the proceeds, being 104 dollars and 63 cents, were ready to be paid as the court might direct.

ff. Hamilton, for Adams,

the plaintiff in the first cause, contended, that affidavits could not, in this case, be admitted to show the particular time of docketing the judgments. The statute (sess. 24. c-s. 105.) has pointed opt but

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one mode of ascertaining the time. The judge, or officer who signs the judgment, is to set down the day and year of signing, and the clerk of the court is to mark, on the back of the roll or judgment, the time of filing the same. No other evidence but the marking of the clerk can be received, to ascertain the time of filing the judgment roll. The law allows of no fractions of a day.^[5] There are exceptions to this rule; but they have been allowed merely to repel a fiction of law that might be injurious to tjie party.^[2] But these cases do not apply to the present case, where third persons or purchasers may be affected. The plaintiffs in the two suits must be considered as standing on the same footing on the day on which the judgments were filed; and the maxim that potior est conditio defendentis may apply; and, as was observed by-the court of appeal, in South Carolina,^[3] in the case of Callahan v. Hallowell, the vigilant creditor is to be preferred. Here Adams must be considered as the vigilant creditor, as he first took out execution, and had the lands sold.

Harris, contra,

in behalf of the plaintiffs in the second cause, observed, that by the act concerning mortgages, (sess. 24. c. 156.) the clerks of the counties are required to mark the time of registering the mortgage, and it is the practice of the clerks of the counties to note the exact time or hoar of registry. As the clerks of the courts are also required to mark the time of filing the judgments, the same rule ought to be applied, and the exact time or hour of filing ought to be marked, and may be shown.

In Smallcomb v. Buckingham,^[4] two writs oifi.fa. were delivered to the sheriff on the same day, who executed the last first, and though the execution was held good, yet the sheriff was held liable to the plaintiff in the first execution. If the sheriff is liable, in such a case, after he has paid the money over on the second execution, surely the court would, in a case where the money was not paid

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over, order the sheriff to pay it to the plaintiff in the first ’ . , / , . execution. Lord Holt, m that case, said, that where two writs offieri facias come to the sheriff on the same day, he must serve that writ first which came first, and in that case there is a prius and a posterius in the same day. If the time may be inquired into, in regard to executions against goods, there is a stronger reason for allowing the inquiry as to executions and liens against real property. Though the law does not, in general, allow the fraction of a day, yet it admits it in cases where it is necessary to distinguish.^[5] It is a fiction of law which regards a term ° .... as one day, yet this fiction is disregarded, and made to yield to the fact, in order to do justice between parties. The court, in S. C. in Callahan v. Hallowell, which has been cited, recognised the same general principle, that in all cases where it is necessary to distinguish who, of several persons, has a priority of right, the law allows of fractions of a day. Time is in its nature divisible, as well into hours and minutes, as into years and days.

The act says, that the land shall be bound from the- time of filing and docketing the judgment; and the moment the judgment is filed and docketed, the lien is created, and cannot be removed without the consent of the plaintiff. The time of issuing the execution is immaterial. The execution first delivered to the sheriff has the preference, because the goods of the party are bound by the delivery of the writ.† But a judgment being a lien on lands, cannot be affected by the issuing of the execution or the delivery of it to the sheriff.

† 1 Term Rep. 729.

Hamilton, in reply,

observed, that if the clerks of the court do not mark the hour or exact time of filing the judgment record, they do not do their duty; for the act requires them to mark the time. But there can be no proof of the time of filing, but the record of the clerk or sworn officer. The court, then, have no m cans of deciding on the priority of the lien.

The judgments in these cases were signed and filed on the same day, and even if the court were at liberty (of which they very much doubt, when they compare and consider the several provisions in our laws on the subject) to inquire into the fractional parts of the day, in order to see which record was first filed, the affidavits exhibited leave the point doubtful, as to the precise time of the day in which the rolls were filed, or which was, in fact, prior in time. We must then consider the judgments equal, as to the date of the lien, and the next question is, whether any priority hath been subsequently acquired. If one creditor first sells the lands under his judgment, he gains a preference, and is entitled to have his judgment first satisfied out of the proceeds of the sale. . It would be analogous to the case mentioned in the books, of several judgments of the same term, in which one of the judgment creditors first extends the lands, and is thereby entitled to be first satisfied. (Gilbert on Executions, 55. The Attorney-General v. Andrea, Hardres, 23.) And has not the plaintiff, who first sued out his execution, actually gained that preference ? His execution was some weeks prior, and under it the lands were regularly advertised according to law, and sold in pursuance of such advertisement. The last execution was not issued and delivered to the sheriff, until about three weeks before the sale, and the sale was not made under that execution. The statute forbids lands to be sold by virtue of any execution without six weeks’ notice, and the case states that the lands, were sold, and the moneys paid under the first execution. Perhaps, the mere act of delivery of the execution to the sheriff, did not gain a preference as to the lands, but by the act of the sheriffs in making advertisement of the lands for sale, the first execution was begun to be executed. Here was an act by which priority, in some respects, was gained. There was priority as to the time of sale, and that priority could not be defeated by the second execution.

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The first execution is, therefore, under the circumstances of this case, entitled to preference, and must be first satisfied.