
    Lucy Hickman, vs. William H. Murfree.
    In Error.
    The judgment of a county court, is a lien upon the lands of the party against whom it is rendered, for one year after its rendition; whether the lands are situated in the county where the judgment was obtained, or in any other county in the state.
    If A obtain a judgment against B, in the county court of Davidson county, at January term, 1825, and C obtain a judgment against him also, at February term, 1825, of the Williamson circuit court; and the execution of C is first delivered to the sheriff of Lincoln county, (where the lands of B lie,) and af-terwards (but within a year from the*rendition of Ad judgment,) the execution of A is also delivered to him, and he levies, advertises and sells under both executions, Adjudgment must be first satisfied.
    This was a motion, made in the court below, by Mur-free, the defendant in error, to order the sheriff of Lincoln county, to pay over to him five hundred and seventy-five dollars, the amount of the proceeds of a tract of land sold by said sheriff, as the property of Oliver Williams, by virtue of two executions against said Williams: one in favor of the plaintiff in error, the other in favor of defendant; to which motion the plaintiff in error was made a party by agreement.
    At the January term, 1825, of the court of pleas and quarter sessions of Davidson county, Lucy Hickman recovered judgment against the said Oliver Williams, for 593 Mal. dollars, debt, besides costs. On the 7th May, 1825, the execution upon said judgment came into the hands of the sheriff of Lincoln county, and was levied on the tract of land whereon Oliver Williams lived.
    On the 16th of February, 1825, at the February term of the circuit court for Williamson county, William H. Mur-free recovered judgment against said Oliver Williams, for 3769 dollars, besides costs. On the 4th of March, execution issued upon said judgment, directed to the sheriff of Lincoln county, which came into his hands the 8th of March, 1825. On the 11th of April, this execution was levied on certain personal property, and also, on the tract of land whereon said Oliver Williams then lived, in said county of Lincoln.
    On the 2d of July, 1825, by virtue of both said executions and levies, (the same having been advertised under both executions,) the sheriff sold the land to William H. Murfree, for 575 dollars, he being the highest bidder. The sheriff retained the money in his.hands, and made a special return of these facts on the executions, in order that it might be legally ascertained to which execution the money, arising from the sale of the land, should be applied.
    The circuit court decided, that the money should be paid over to William H. Murfree; from which decision, the said Lucy Hickman prayed an appeal, in the nature of a writ of error, to this court.
    
      F. B. Fogg, for the plaintiff in error.
    The plaintiff in error, is the oldest judgment creditor — her execution issued, the levy was made and the sale of the land took place within a year from the rendition of the judgment. Her judgment was a lien upon the land, and is entitled to a preference over Murfree’s jmunger judgment — the money aris^ jng from the sale of the land should, therefore, he paid to her in satisfaction of her judgment.
    By the act of 1794, chap. l,sec. 59, execution may issue to any county in the state, on a judgment obtained in the county court. And, by the act of October,'1799, chap. 14, sec. 2, the lien of a judgment is preserved twelve months. (Vide Comyn’s Digest, Execution D. 1. 2. 2 Bacon’s Abridgement, Execution Til. %'S. 1 Haywood 93. Peck’s Reports 31. 52.53. 3 Murphy’s Reports 43. 2 Hawk’s 232. 309. 520. 341. 4 Hawk’s 309.)
    The words of the Statute of Westminster 2. 13 Edw. 1st. ch. 18, are to be found in Second Institute 394. 5. 6. — by which it is enacted, uwhen a debt is recoveted,or acknowleged, in the King’s courts, or damages awarded, it shall be from thenceforth in the election of the creditor to have a writ, 8/b.” It makes no provision for the lien of the judgment, nor does it de-dare the time from which lands are bound. But by the construction of the courts, immediately after the statute was made, (which has ever been followed, and to which there is no contradictory decision,) the judgment hinds the land; and the plaintiff might have execution of the land, which defendant had at the time of the judgment, although he had aliened bona fide, before execution was awarded. (See the old cases collected in 10 Finer, Execution, letter Z, pages 562. 3. 4. 5. and 594. 5. 6.) Upon this question, where the elegit is resorted to, there can be no doubt — it is settled by the concurrent decisions of ages. Does the.statute of .5 George 2, ch. 7, sec. 5, the words of which are found in the case of Callen vs. Jackson, 8 Johnston 520, and in Peck’s Reports 32, which substitute the fi. fa. in lieu of the elegit, make any difference as to the binding effect of the judgment? The lien of the judgment in England, does not depend upon the elegit, or upon the form of the process used to carry the judgment into effect: on the contrary, it has no connection with the execution; for if the lien depend upon the execution, the same consequences would follow, and the same lien would exist, as to goods and chattels. I refer the court to the reasons given by Judge Haywood, in his argument in 1st 
      Haywood 89. 94, and to the opinions of Judges Brown and Haywood, and the authorities cited by them, in the case of Cocke vs. Porter, Peck's Reports, pages 34, 36, 50, 51, 52.) The conclusion is, that the writ of execution employed has no effect, either to extend or limit the binding force of the judgment; and when the act of Geo. 2 gave the right to sell land byfl. fa., instead of extending it under the elegit, it was not intended to change the effect of the judgment; which binds according to the construction of the statute of Westminster 2, from the time of its rendition; and the only limitation in Tennessee, is that created by the act of 1799, ch. 14, sec. 2.
    The same construction has been given to the act of Geo. 2, in the states of JYew York, Pennsylvania, Virginia and South Carolina. Vide Adams vs. Dayer, 8 John. 270, 1 Johnson's Chancery Reports 512, 8 Johnson's Reports 426: in Pennsylvania, 4 Dallas 151, and 3 Binney 9; by which it appears, that having no court of chancery, the courts by construction have said, that a judgment there, is a lien upon every kind of equitable interest in land: in Virginia, 4 Munford 541: in South Carolina, 3 Dessausure' 358, 4 do. 206. In the latter state they have gone much farther, and say, that an execution as to goods, &c. is a continuing lien, like a judgment as to lands, and binds until satisfied; which seems to he the opinion of the courts in North Carolina, as appears from the cases cited in 2 and 4 Hawks.
    
    Whether the judgment is rendered in the county, circuit, supreme, or federal court, can make no difference. The inconveniences, if any, arising from the lien of one year, can be remedied by the legislature.
    
    The judgment, in this case, is the judgment of a court of record, of the strife of Tennessee; which may be executed in the county of Lincoln, or in any county in the state. It is true, that from the circuit or county court, the writ of capias ad respondendum, must be executed upon some one of the defendants specified, in the county where the court sits; but, when the judgment is rendered, it is not circumscribed within any geographical limits, but may be executed 
      any where within the limits of the state. If this were not gQ^ a forejgn creditor, by suing a citizen of Davidson county in the federal court, would have a lien, by his judgment, in that court, over the debtor’s land in all the counties of West Tennessee; although the same crédito?-, suing the same debtor in the county court, would only have a lien upon the debtor’s land in Davidson county. And why? merely because the marshal can serve the writ in any part óf West Tennessee. Such a distinction-is against reason, and cannot exist in the law.
    
      W. L. Brown, contra.
    The judgment of a county court in this state, cannot operate as a lien upon the lands of the debtor over the whole state. Such a construction of the act of 1799, ch. 14, sec. 2, will be attended with the most pernicious consequences. No man could be safe in purchasing a tract of land, unless he had first gone himself, or sent, to the places where every county and circuit court in the state hold their sessions, and had the records searched? to ascertain whether there is an unsatisfied judgment existing against the person from whom he intends purchasing.
    That the statute intended a judgment' should be a lie*n for twelve months, there is no doubt; but that the lien should be so general and extensive, as to include the debtor’s land, not only in the county where the judgment was rendered, but in every county in the state, was certainly not the intention of the legislature. If the intention of the legislature be doubtful, the court, in putting a construction upon the statute, should have an eye to the consequences. (6 Bacon’s Abridgment 392.) A moment’s consideration will convince the court, that if a judgment binds the debtor’s land all overthe state, the most injurious results will follow. No man could be sure, that when he purchased a tract of land, he did not, also, buy a lawsuit. It would enable persons, so disposed, to commit frauds, and impose upon innocent purchasers, by selling them land, after judgments were rendered against them.
    The English authorities, and the construction that the English courts have given to the statute of Westminster 2, cannot apply in this state. In England there is only one place (Westminster) where execution is sued out. Every person knows where to look for a judgment.
    And to make this the less burthensome, the statute of 4 and 5 William find Mary, ch. 3, sec. 3, enacts, that the clerk of the essoigns of the court of common pleas, the clerk of the doggets of the court of king's bench, and the master of the office of pleas in the exchequer, should make, and put into an alphabetical (locket, by the defendants' names, all the judgments rendered in their respective courts, &?c. fyc, — these dockets to be searched by any person, upon paying 4 d. 8fc." (See Sugdenon Vendors 489.)
    But, in this case, Lucy Hickman's execution first issued to the sherilf of Davidson; it was afterwards sent to the county where the other execution was levied — she made her election, by first' issuing it to the sheriff of Davidson— she cannot now claim to have a lien upon this land, when Murfrce, by his superior diligence, had his execution first delivered to the sheriff of Lincoln county.
    In the case of Pain vs. Drew, 4 East 523, a writ of sequestration, delayed 18 months, lost its lien. In Peake's Nisi Prius cases 65, it is said, a party shall not delay, and if he does, he loses his lien. At all events, a judgment should only be treated as alien: when the execution is directed to the proper county, the party elects to abandon all other counties, but that to which the execution is sent.
    
      Fogg, in reply.
    
      Arguments, ab inconvenienti, cannot apply to this case; they ought tobe addressed to the legislature, not to the courts of justice.
    The same inconveniences, and greater, might arise from lis pendens being notice; or from a deed relating to its date, when the first purchaser records it in time. If subsequent purchasers, without notice, sustain an injury, the injury is to be ascribed to the law, not to the individual who has complied with its requisition. (7 Cranch 34, 50.) The judgment creditor ought to get his money, and the subsequent purchaser ought to take a covenant of warranty •against incumbrances.
    
      Even in England, the statute 29, Car. 2, cap. 3, sec. 14, enacting that judgments bind lands only from the signing j relates solely to purchasers; so that, as to creditors, this remains as it was at common law. (3 P. Wni’s. 398.)
    So the same statute as to binding goods, only from the delivery of the execution to the officer, instead of from the teste, was made to protect bona fide purchasers in market overt. (10 Viner 567, 8.)
    The argument of Mr Brown, as to delay, &c. does not apply.. The only limitation that could, in all probability, be imposed upon the lien of a judgment by judicial construction, would be, that if the younger judgment creditor took out his execution, had it levied, the land sold and the money paid over, before the execution on the other judgment came into the sheriff’s hands — then, probably, the sale would be good; and the superior diligence of the youngest judgment creditor would give him the preference, although his first judgment was not of more than a year’s standing.
    But in the case before the court, the advertisement and sale were under both executions. (Vide 1 Term Reports, 6 Modei'n 42, 2 Salkeld 564.)
    The case of Pain vs. Drew, was a case of goods and chattels.
    The act of 1799,'would be wholly unmeaning, if the judgment were not a lien.
    
   Pjeok, J.

delivered the opinion of the court, (Crabb, J. absent.) By the act of [111, chap. 2, sex. 29, the legislature enact, ‘That all process that had before that time issued against goods and chattels, lands and tenements, shall in future issue in the same manner. And all process, that before that time issued against goods and chattels only, shall in future issue against lands and tenements, as well as goods and chattels — the goods and chattels to be levied on first, if the defendant have any.”

Before the passage of this act, a judgment, by construction of law, was held to bind the lands of the debtor. The delivery of the elegit to the officer, on a younger judgment, did not, therefore, postpone an elegit sued out and delivered within a reasonable time upon an elder judgment. So far from it, the elegit on the elder judgment, (even though the land had been extended by virtue of the younger judgment,) will extend the same land, and postpone the extent first made on the younger judgment. (Coke Littleton 289 B, 4 Beports 66 B; Tulward's case, Carthew 255.) And why? not because the statute contained any provision to that effect, but because the courts, in construing the statute of Westminster 2, inclined to the side of the vigilant creditor.

By the act of 1794, ch. 1, sec. 59, an execution may issue upon the judgment of any county court, to any other county in the state. This section, by the terms used, supposes, that the debtor may have removed, or may reside out of the jurisdiction where the judgment was obtained, or that he had property in some county, other than that in which he resided.

It did not always happen, that a defendant was arrested in the county where he resided. His person being liable to arrest wherever found, service of the writ frequently took place in some other jurisdiction. Had the execution remained, limited to the jurisdiction where the writ was executed, the judgment might have remained unavailing.

This provision naturally connects itself with that contained in the act of 1799, ch. 14, recognizing the lien of judgments on lands, and limiting the duration of such lien to one year. The preamble to this act contemplates an existing fact, viz: that judgments and executions which had long been dormant, disturbed rights honestly acquired, without a knowledge of their existence to the party disturbed.

Five years intervened between the passage of these acts; and whatever evils were likely to arise, from the long continued binding effect of the judgment, it is natural to suppose would have developed itself in that time. In addition to the above consideration, the county court was a court of very general jurisdiction; it was a tribunal brought home to the citizen — less expensive and more frequent in its sittings than the district court. These, with many other reasons, siiow why it should be resorted to in preference to the dis-■;rie! court; especially in such questions as arise between the debtor and the creditor — questions demanding expedi-tjor}j an(q not? jn general, involving much intricacy.

Resorting to construction, from premises like these, it would seem as reasonable to construe our statute in favor of the oldest judgment creditor, to the extent contended for in this case, as to allow it on the statute giving the elegii.

The execution by fi. fa., is only another method of obtaining the fruits of the judgment; the end of the fieri facias, and of the digit, being the same, the means should be the same — and pursuing the analogy, we ought not to make the limit of the lien extend farther back, than to the delivery of the execution.

The maxim, “vigilantibus et non dormientibus jura subve-niente does, -and ought to apply in this case. And, in making the application to the judgment, we shall be strengthened by the fact before alluded to: that although the defendant be found and arrested by the creditor, no matter in what county, still the creditor may not know in what county the debtor’s estate is, so as to be immediately reached on obtaining the judgment.

When the act of 1799, ch. 14, speaks of judgments and executions remaining dormant, and working injury to innocent purchasers, it is reasonable to suppose it was intended of estates purchased out of the county where the judgment ivas obtained; for if confined to the county alone, the injury spoken of in the act could not have existed; because the records of the court were accessible to all who might desire to purchase. But if the lien extended to the land of the debtor, lying out of the county in which the judgment was obtained, then the mischief, &c. did exist; and to remedy this mischief that section of the act was passed.

This construction is also aided by another provision of the act of 1799, ch. 14, providing the length of time and public manner, in which notice of the time, and place oí sale shall be given. As one reason for giving sixty days (a time more than sufficient to bring bidders together,) may we not infer, that it was in part designed to notify elder judgment creditors, that they might present their executions, to the end — first, that the sale, when made, should not be questioned — second, that the proceeds of the sale should be properly applied and paid to those entitled?

I pause here to make an inquiry: why give,by construetion, a binding effect to a judgment rendered in a district court to half the bounds of the state; and limit the lien of a judgment rendered in a court of like jurisdiction, as to the matter adjudicated, to a single county? This, it seems to us, would be making an inequality, without sufficient reasons to justify it.

We are referred to cases determined in North Carolina, which are thought to stand opposed in principle to the position contended for by the plaintiff in error. Most of these we have examined. (Stamps vs. Erwine, Green vs. Johnson, Gilkey vs. Dickerson, and Davidson vs. Beard, in 2 Hawks’ Rep.) These cases prove nothing against the positions assumed; each case assumes it as law, that an execution binds land from the test, and that an alias pursued after the return of the first execution, binds from the test of the first execution. So of the cases in 3 Murphy’s Rep. Although in one of these cases there is a dictum, that a Ji. fa. on the judgment will not bind from the teste; though, say the judges, had the elegit been sued out, the judgment would have been a lien, and this, because the elegit is the process given by the statute. For as strong a reason, the execution here, ought, when delivered, to bind from the date of the judgment: because it is the writ given by our act of assembly.

But it is evident, that the decisions in North Carolina, can have very little to do in determining the question. It is a question depending on a sound construction of our acts of assembly. How the law was understood to be under the act of 1777, may' be collected from the subsequent acts— and our courts, when deliberately called upon, have, from various sources of reasoning and authority, determined uniformly in favour of the binding effect of the judgment, where the party, by his own act, has not defeated his lien. (Porter vs. Cocke, Peck’s Reports.)

We are, therefore, of opinion, that the circuit court erred in.ordering the money to be paid to the defendant in error. Reverse the judgment, and let judgment he given in favor Qf plaintiff in error.

Judgment reversed.  