
    Smith v. Hogg et al.
    
      Judgment — Revivor of dormant judgment — Not a lien on lands acquired after original recovery — Date of lien — Sectioji 6368, Rev. Stat.
    
    Where a dormant judgment is revived under section 5368, Revised Statutes, it does not, by virtue of its revivor, become a lien on lands acquired by the debtor after its original recovery, unless a levy is made thereon either before it became dormant or after ts reviv or. Where made after the judgment is revived, the lien dates from the time the land is seized in execution, and not from the time of the revivor.
    (Decided March 26, 1895.)
    Error to the Circuit Court of Licking county.
    
      George B. Smythe, for plaintiff in error.
    A judgment lien is a mere creation of the statute which must be strictly construed. Such lien attaches only to the legal title of lands of the judgment debtors within the jurisdiction of the court which renders the judgment. 6 Ohio, 156; 3 Ohio, 514; 1 Ohio, 318. And such lien attaches on the first day of the term of court which renders the judgment, and binds all other lands from the time they are seized in execution. Section 5375, Revised Statutes. The revival of this judgment can not create a new lien. It can only operate to restore such liens as subsisted before the judgment became dormant. Had the lien of this judgment attached to any lands belonging to Walter M. Smith by virtue of the judgment, such lien was lost by the dormancy, and he could have aliened them discharged from the judgment lien. Section 5380, Revised Statutes; 5 Ohio, 178; 10 Ohio, 403; 15 Ohio, 301; 25 Ohio, St., 358; 15 Ohio, 735.
    It is admitted that a-revivor under section 5367, Revised Statutes, operates to revive the judgment with all its incidents, including all liens subsisting before the dormancy, but we deny that it creates a new lien on property not owned by the judgment debtor at the time of the rendition of the judgment. It is well settled in Ohio that a judgment is not alien on after acquired land conveyed before levy. Roads v. Symmes, 1 Ohio, 281; Stiles v. Murphy, 4 Ohio, 92.
    We conclude, therefore, 1st, that ,the revival judgment,per se, was nevera lien on these lands. 2. That no lien was acquired by its revivor. 3. That none was acquired by the levy which was subsequent to the conveyance by Walter M. Smith to the-plaintiff in error.
    
      Kibler & Kibler, for defendants in error.
    The decision of this case, we think, depends wholly upon a construction of section 5367 of the Revised Statutes, and upon the determination of the meaning of its language. Section 4948, requires that provisions of the code and all proceedings under it shall be liberally construed in order to promote its object and assist the parties in obtaining justice, and that' the rule of the common law, that statutes in derogation thereof must be strictly construed, has no application to that part of the Revised Statutes which embraces section 5367, above mentioned. A remedial statute should be liberally construed to accomplish the object intended thereby. Saterlee v. Stevens, 11 Ohio St., 420; Tracy's Adm'x v Card's Adm'r, 20 Ohio St., 431; Pollock v. Spidell, 27 Ohio St., 86; Cross v. Armstrong, 44 Ohio St., 613; In re Will of Hathaway, 4 Ohio St., 383; Woodbury & Co. v. Berry, 18 Ohio St., 456.
    The legislative intent can be arrived at only by giving to the language used in the act its ordinary and natural import. If therefore the lien of the revived judgment operates from the entry of the conditional order of revivor, from that date it must become an incumbrance upon the real estate to which the judgment debtor had legal title at that date. If this construction be correct it is not essential to the validity of the lien upon the real estate, that the judgment debtor should have the legal title to it at the time the conditional order is made absolute. It would seem that this section 5367 plainly provides that the lien of the judgment when absolutely revived shall operate from the time of the entry of the conditional order of a revivor. This construction of the statute does no violence to the rights of the judgment debtor nor gives the creditor any undue advantage. It is in all respects analogous to the provision of section 5375, which provides that lands within the county where a judgment is rendered, shall be bound for the satisfaction thereof from the first day of the term at which the judgment is rendered. Tucker v. Shrader, 25 Ohio St., 358; Corwin v. Benham, 2 Ohio St., 36; Styles v. Murphy, 4 Ohio, 95.
   Minshall, C. J.

The action below was brought in the common pleas of the county by George E. Hogg and another, against Sarah Smith and her husband Walter M. Smith, and Benjamin J’. Wilson, to enforce the lien of a revived judgment, and set aside a conveyance alleged to have been made to defraud the plaintiffs. The defendants, Sarah Smith and her husband denied,the fraud, and averred that the land in question, was acquired by the husband by inheritance from his father, after the rendition of the judgment and before its revivor, and was conveyed by the husband to his wife for a valuable consideration before any levy was made on it. The court heard the case upon the issues and dismissed the petition. The case was then appealed by the ' plaintiffs to the circuit court, where the case was' tried and determined in favor of the plaintiffs. From the pleadings and a finding of facts made by the court, it appears that in 1874, the plaintiffs recovered'a judgment in the common pleas of the county against Walter M. Smith and Benjamin J. Wilson for some seven thousand dollars, on which a payment of some two thousand dollars was thereafter made No execution was issued and the judgment became dormant, and was revived by a conditional, order made November 7, 1889, the entry of the conditional order having been made September 20, 1889. After the recovery of the judgment and before its revivor, Walter M. Smith, the husband, acquired by inheritance the land in question; and, after the commencement of the proceeding to revive, on September 27, 1889, conveyed the same to his wife, Sarah Smith, for, as she claims, a valuable consideration, but, as the judgment creditors claim, to defeat the collection of their judgment. After the revivor of the judgment, the plaintiffs caused an execution to be issued and levied on the land. The 'court found, the facts as to the recovery of the judgment and its revivor as above stated. The time as to the • acquisition of the land by the husband, is averred in the answer and not denied by the reply. And, holding the judgment as revived to be a lien on the land, refused to find as to the alleged fraud, and, finding the amount due on the judgment, made an order for the sale of the land, if not paid in the time named. Error is prosecuted here for a reversal of this judgment on the ground that the court erred in its conclusion of law from the facts found; and the facts admitted by the pleadings. ■

Whether the court erred in its conclusion of law depends upon the proper construction of the last clause of section 5367, Revised Statutes. The section provides for the revivor of a- dormant Judgment; it may be done by a conditional order or by petition; and, it is provided, that when revived “the lien of the judgment for the amount due shall be revived, and shall operate from the time of the entry of the conditional order, or the filing of the petition.” Now, what is meant by “the lien of the judgment for the amount due shall be revived?” The court evidently held, that the revivor operated as a new judgment, and became a lien upon all lands owned by the debtor within the county, at the- entry of the conditional order, as in the case of an original judgment under section 5375, Revised Statutes. This, we think, does violence to the language of the statute, and is error. It is the lien of the judgment that is to be revived, not the creation of a new one — -the lien or liens, the judgment revived had when it became dormant. To hold' otherwise would be to disregard the propriety of language and torture the sense of the statute. A lien cannot be revived that never had an existence. Hence, it was not the intention of the legislature, from the language employed, to provide for the creation of new liens against the lands of a debtor, by the provision for the revivor of dormant judgments, but to provide for the revivor of a judgment with such liens as it had at the time it became dormant. .

It is settled law in this state,-that a judgment without a levy does riot become a lien on after acquired lands. As to such lands the Judgment only becomes a lien by the levy of an execution issued upon it. And it is equally true that the lien of a judgment, given by section 5375, Revised Statutes, ■ and such as' are created by the' levy of an execution, are of no avail as against a purchaser, after the judgment becomes dormant before it is revived. Roads v. Symmes, 1 Ohio, 281; Stiles v. Murphy, 4 Id., 92; Norton v. Beaver, 5 Id., 178, 181; Miner v. Wallace, 10 Id., 403; Hutchinson v. Hutchinson, 15 Id., 301; Tucker v. Shade, 25 Ohio St., 355; Wuest v. James, 51 Id., 230. And, in fact, the statute provides, section 5380, Revised Statutes, that if execution on a judgment rendered in any court of record in this state, is not sued out in five years from its date, “such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor.” By its revivor, a new judgment is not created. The object and effect of the proceeding is simply to revive an existing judgment, with such liens as it had when it became dormant, and so that execution may be issued upon it. Rights acquired by third persons, by purchase or otherwise, during its dormancy, are not affected. In Tucker v. Shade, it is said by White, J.: “It is well settled that the title of a purchaser from the judgment debtor, is, on the judgment becoming dormant, discharged from the lien, and that the subsequent revivor of the judgment will not affect such title.” .

The judgment in this case was recovered in 1874, and became dormant in 1879. The land in question was acquired by the debtor during its dormancy, by inheritance from his father in 1889, and was conveyed by him to his wife, September 27,1889, for, as claimed, a valuable consideration. No levy was made on the'land until after the revivor of the judgment, November 7, 1889. Now, as'the revivor of the judgment without a levy did not make the judgment a lien on the land, the fact that the revivor, by statute, is made to relate to the éntry of the conditional order, which, in this case, was September 20,1889, can make no difference ; for, if the judgment had been revived at that date, it would not, without a levy then made, have been a lien on the land. The lien of a judgment creditor, as to after acquired land, dates from the levy and not from the revivor of the judgment.

As then the judgment was not, at the time of its recovery, nor by virtue of its revivor, a lien on these lands; and, as against the prior purchaser, none was acquired by the levy made subsequently to the revivor, unless, as claimed, the conveyance was fraudulent, the court should have proceeded to hear and determine the question of fraud made by the pleadings. The judgment will, therefore, be reversed, and the cause remanded for the determination of that question.

Judgment reversed and cause remanded for further proceedings.  