Summary
In Bank of Monticello v. L.D. Powell Co., 159 Miss. 183, 130 So. 292 (1930), and in R.F. Walden Co. v. Yates, 111 Miss. 631, 71 So. 897 (1916), the rule stated in Bryan was reaffirmed.
Summary of this case from Simmons-Belk, Inc. v. MayOpinion
No. 28848.
October 20, 1930.
1. JUDGMENT.
Under decree allowing solicitor's fee for services in conducting partition suit, solicitor's right was "intangible property."
2. JUDGMENT.
Decree in partition suit allowing solicitor's fee for services in conducting proceeding was subject to assignment by solicitor.
3. JUDGMENT.
Decree allowing solicitor fee in partition cause was not subject to lien of judgment against solicitor (Hemingway's Code 1927, sections 621, 1423, 1425).
APPEAL from circuit court of Lawrence county. HON. J.Q. LANGSTON, Judge.
C.E. Gibson, of Monticello, for appellant.
The lien is confined to such property as is liable to levy and sale under execution.
Robertson v. Demoss, 23 Miss. 298.
The interest of the beneficiary in a deed of trust executed to secure a debt, is not the subject of a judgment lien.
Beckett v. Dean, 57 Miss. 232.
Money is property and is subject to seizure under execution or attachment, but no lien attaches to it until seizure thereof, because of its current character, the impossibility of identifying it, and because of public policy, and because such a doctrine would put an unbearable embargo upon the transactions of all business.
Cahn v. Pearson, 56 Miss. 360.
A voucher for the payment of money due is not subject to the lien of an enrolled judgment as "personal property" or "property;" its negotiability being unaffected by such a lien.
Walden Company v. Yates, 71 So. 897, 111 Miss. 631.
Judgment liens do not and cannot bind choses in action.
Black v. McMurtry (Miss.), Walker Rep. 389; 23 Cyc. 1367; Black on Judgments, sections 417, 418, 419.
Neither a debt nor a chose in action is subject to the lien of an enrolled judgment.
Bryan v. Henderson Supply Company, 65 So. 242, 107 Miss. 255; Hazelhurst Oil Mill Fertilizer Co. v. Robertson, 85 So. 139.
Jno. H. Arrington, of Monticello, for appellee.
An enrolled judgment becomes a lien on decree in a partition suit allowing a solicitor's fee.
Section 819, Code 1906, section 621, Hemingway's 1927 Code; Section 1591, Code 1906; Section 1423, Hemingway's 1927 Code; Section 1593, Code 1906; Section 3968, Code of 1906; Section 3179, Hemingway's 1927 Code.
An enrolled judgment binds all the property of the defendant, without regard to its character or description.
Minshew v. Davidson et al., 86 Miss. 354; First National Bank of Hattiesburg v. Ellison, 135 Miss. 42, 99 So. 573.
The decree granted by the chancery court to the judgment debtor, was property, effects, right, title or interest in any real or personal estate, within the purview of section 1591, identical with section 1513, Code of 1892, and section 3107 of the Code of 1880; Sections 2858 and 2859, Code 1871.
This is an appeal from a judgment of the circuit court of Lawrence county. The question in this cause is whether the lien of an enrolled judgment is a lien on another judgment in favor of the judgment debtor in the former case. The facts necessary to develop the question are as follows:
The appellee recovered a judgment against W.J. Lee in November, 1927, which judgment was duly enrolled in the office of the circuit clerk of Lawrence county. W.J. Lee was engaged in the practice of law, and was solicitor for the complainants in a partition suit in the chancery court of Lawrence county, in which the lands involved were partitioned in kind. In the decree the court allowed Lee a solicitor's fee of one hundred dollars for his services in conducting the proceedings.
On the 9th of August, 1928, several months after appellee's judgment had been recovered and enrolled, appellant acquired by written assignment, in good faith and for a valuable consideration, from Lee, the right to the latter's fee allowed by the chancery court in the partition suit.
Section 819, Code of 1906, section 621, Hemingway's Code of 1927, provides that, when a judgment is duly enrolled, it shall be a lien upon and bind all the property of the defendant within the county where it was enrolled, from the rendition thereof, and shall have priority according to the order of such enrollment, in favor of the judgment creditor, his representatives or assigns, "against the judgment debtor, and all persons claiming the property under him after the rendition of the judgment."
It will be noted that the statute provides that the judgment shall bind "all the property of the defendant." Section 1593, Code of 1906, section 1425, Hemingway's Code of 1927, provides that the term "property," when used in any statute, shall include personal property, as defined in section 1591, Code of 1906, section 1423, Hemingway's Code of 1927. The latter statute provides that the term "personal property," when used in any statute, shall include goods, chattels, effects, evidences of right of action, and all written instruments by which any pecuniary obligation, or any right, title, or interest in any real or personal estate shall be created, acknowledged, transferred, incurred, defeated, discharged, or diminished.
The appellee's position is that the decree of the chancery court, allowing Lee his fee in the partition cause, being property under these statutes, was subject to the lien of appellee's judgment at the time of the assignment of the right to the fee to appellant. The trial court took that view, and rendered judgment for appellee.
Appellant, to sustain the contrary view, relies on Beckett v. Dean, 57 Miss. 232; Cahn v. Person, 56 Miss. 360; Bryan v. Henderson Hdw. Co., 107 Miss. 255, 65 So. 242, and Walden Co. v. Yates, 111 Miss. 631, 71 So. 897, 899.
In the Beckett case the court held that the interest of the beneficiary in a mortgage executed to secure a debt was not subject to a judgment lien. In the Cahn case the court held that, although money was liable, under the statute, to seizure under execution, a judgment lien did not attach to it until seizure thereof, because of its current character and the difficulty of identifying it. In the Bryan case the court held that the lien of an enrolled judgment did not extend to a voucher for the payment of money. In the latter case the court said, among other things: "If promissory notes and bills of exchange are subject to judgment liens their negotiability will be thereby practically destroyed; it is therefore hardly possible that the legislature so intended — surely not when we remember that these statutes have been several times re-enacted without material change since the decision in Beckett v. Dean."
We are of opinion that these cases, by analogy, decided the question involved against appellee's contention. The decree of the chancery court, allowing Lee's fee, merely evidenced an indebtedness due Lee and provided a security therefor. Lee's right, under the decree, was intangible, and not a tangible property. The decree, was subject to assignment and transfer by him. Rights in judgments and decrees of courts are often assigned and transferred by the holders of such rights. We see no reason for making any distinction between an indebtedness evidenced by a judgment or decree of a court, and an indebtedness secured by a mortgage. It is true that the statutes relied on by the appellee are broad enough in their language to cover judgments and decrees; but we see no reason at this late day for departing from the construction put upon them by the decisions of this court, above referred to.
Reversed, and judgment here for appellant.