
    John M. Chilton vs. Nathaniel Cox, Administrator of Samuel B. Slocumb, deceased.
    Where the lien of a judgment upon slaves has once attached in one county, the removal of the slaves to another county, hy the defendant, without the knowledge of the plaintiff, cannot defeat the lien of the judgment; such removal by the judgment-debtor being a fraud upon the judgment-creditor.
    A forthcoming bond after forfeiture becomes, by operation of law, a judgment, which extinguishes the original judgment, and also all liens created by that judgment. #
    On appeal from the superior court of chancery ; Hon Robert H. Buckner, chancellor.
    On the 3d day of July, 1843, John M. Chilton filed his bill in the superior court of chancery, against Nathaniel Cox, administrator of Samuel B. Slocumb, deceased, alleging, that on the 25th of March, 1843, John S. Brien, then of Warren county, conveyed to him in trust, to secure to Kirkman, a note of John S. Brien for $6628 94, bearing even date with the deed of trust, and payable on the 1st of February, 1843, Abernathy, and Hanna, Nat, Israel, Jerry and other negro slaves, then in the possession of Brien, which deed of trust was duly recorded in Warren county, where the negroes then were; that within twelve months past the negroes were removed to Hinds county, by Brien, and a copy of the deed of trust was duly recorded in Hinds county, in January, 1843; a copy of which was made an exhibit to the bill; from which it appears that the deed of trust was dated on the 25th day of March, 1843, and acknowledged and filed for record in the office of the clerk of the probate court of Warren county, on the 26th day of March, 1842, and that it was executed to secure the payment of the note made by John S. Brien, mentioned in the bill. Complainant further alleges that at the date of the trust deed, there was a judgment of the circuit court of Warren county, in favor of the defendant, and against said Brien, for the sum of $676 94, with interest from the 3d of May, 1842 ; that afi. fa. had been issued on that judgment and levied on the negroes Jerry and Israel ; and Brien gave a forthcoming bond which was forfeited October 17, 1842, and at the October term 1842, of the Warren circuit court, judgment was entered on the forfeited bond, against the principal and sureties therein; that neither the original judgment, nor the judgment on the forthcoming bond had been recorded in Hinds, and by the failure to record them in Hinds the liens of the judgments were postponed to the lien of the deed of trust; that by the forfeiture of the forthcoming bond, the lien of the original judgment was satisfied and the lien in favor of the defendant then dated only from the forfeiture of the bond, which was junior to the lien created by the deed of trust; that notwithstanding the lien of the defendant’s judgment was junior to that in favor of complainant, the defendant had caused an execution issued on the forfeited forthcoming bond to be levied on the npgroes Nat and Jerry, and the sheriff of Hinds county had advertised them for sale on the 3d of April, 1843, and would sell them on that day, unless restrained by the court. The bill prayed a restitution of the property and for a perpetual injunction. An injunction was granted April 2d, 1843, by the Hon. Robert H. Buckner. On the 3d of July, 1843, on motion of the defendant to dissolve the injunction for want of equity on the face of the bill, the chancellor ordered that the injunction be dissolved as to the slave Jerry, and retained as to Nat. From which interlocutory order the complainant appealed to this court.
    
      P. W. Tompkins, for appellant.
    There seems to me to be but one question in this case, and that is, whether the execution of the forthcoming bond by Brien, which was forfeited 17th October, 1842, raised the lien created by the original judgment of Cox. That it did, see the following authorities: 1 How. R. 64; 3 Ibid. 60. See also, as bearing upon the point, 5 How. 200, 566 ; 6 Ibid. 513; 1 S. & M. 386 ; 2 Ibid. 457.
    
      No distinction is seen between the effect such bond and judgment by operation of law upon its forfeiture is to have as to property specified in the bond, and other property of the defendant, though the chancellor, in his order made in this case, has taken a distinction; for he has dissolved the injunction as to Jerry, and retained it as to Nat. Jerry is specified in the forthcoming bond, Nat is not.
    If the execution and forfeiture of the forthcoming bond removed Cox’s original judgment lien, and the deed of trust was executed in March, 1842, then the simple, naked question left for the examination and decision of this court is, whether the fact of Jerry being one of the negroes specified in the forthcoming bond, constitutes any exception to the rule; whether Cox’s lien as to him is thereby preserved.
    Though the deed seems to bear date 25th March, 1843, the certificate of acknowledgment and record is dated 26th March, 1842. In the deed will be found evidence that the deed could not in fact have been executed in March, 1843, for it recites that the notes were of even date with the deed, and made due and payable on the 3d day of February, 1843, with interest from 10th March, 1842. Provision is made for the execution of the trust, if payment should not be made. The payment and the-enforcement of payment, by the terms and tenor of the deed throughout, were regarded and provided for as things in futuro ;■ yet, if the true date of the deed was March, 1843, the day of payment, February, 1843, had already passed.
    The clerk’s certificates of the acknowledgment and record of the deed of trust, furnish some elucidation as to the confusion about dates. They being 26th March, 1842, come, in aid of the terms of the deed, to show that it was executed in March, 1842.
    Paxton, for appellee.
    If the dates are correctly stated the trust is fraudulent on its face, as it regards the execution enjoined, and an evident conspiracy to defraud the judgment creditor is shown. The haste with which all the steps are taken is conclusive of this. I cannot think that the dates are correctly stated; yet, so far as this appeal is concerned, and the decision of the chancellor, they must be taken to be so. There is nothing in the bill or exhibits, by which any supposed error can be corrected. The date of the certified deed corresponds with the statement of the bill; and if we suppose 1842, or any other year to have been intended, instead of 1843, and that the judgment was of May 3, 1842, then the judgment was subsequent, and not prior to the trust, as stated in the bill.
    But apart from the dates, and taking the original judgment as prior to the execution of the trust, and the forfeiture of the forthcoming bond as subsequent, the appellee insists that, as regards the slaves Jerry and Israel, they being the property mentioned in the forthcoming bond, there exists in his favor a continuous lien, from the date of the original judgment, not raised or avoided by the forthcoming bond and its forfeiture.
    This court has decided in numerous cases, that by the forfeiture of a forthcoming bond the original judgment is satisfied. In the different opinions there is some variety in the language of the court. In the case of Davis v. Dixon's Administrator, 1 How. 64, it is said, “ The giving of a forthcoming bond is a satisfaction of the prior judgment, if the bond be forfeited.’* In the case of Witherspoon v, Spring, 3 Ibid. 60, the court say, “ It has long been the settled law of this court, that the levy of a writ of fieri facias, followed by the taking and forfeiture of a forthcoming bond, is a full satisfaction of the judgment on which the execution was issued.” In some other cases the forfeiture of the bond is spoken of as a satisfaction of the prior judgment.
    These decisions leave no room for question, but that from and after the forfeiture of the bond the judgment is technically “satisfied;” but is this “ satisfaction ” by-virtue of the levy; the execution of the bond or its forfeiture, or the three in conjunction 1 It is contended on behalf of the appellee, that it is by virtue of the levy alone. A levy of an execution on personal property, is pro tanto a satisfaction of the judgment. See 1 How. R. 39; 3 Ibid. 417; 5 Ibid. 237; 6 Ibid. 540; 1 Salk. 322; 1 Burr, 34.
    
      But it is further contended by the bill, that the appellee lost his lien by a failure to record his judgment in Hinds county, under the abstract law of 1841.
    That statute can have no application to this case. At the time of the rendition of the judgment the property was in Warren county, and the lien then and there attached, and no subsequent removal of the property by the defendant, without notice to the judgment creditor, and without any fraudulent delay in the prosecution of his execution, could defeat it, and particularly where, as in this case, the adverse claimant acquired his rights with full notice of the outstanding judgment lien. Under the construction of the statute contended for by the appellant it would at all times be in the power of the fraudulent debtor to defeat the lien of his judgment creditor. And scarcely a more striking illustration of the frauds which would grow out of such a construction could be given than that disclosed in this case.
   Mr. Justice Tkaches

delivered the opinion of the court.

This is an appeal from an interlocutory decree of the chancellor.

The bill of the appellant, as it appears in the record, sets forth that upon the 25th day of March 1843, John S. Brien executed a deed of trust to the appellant upon certain slaves, among which were three, called Nat, Israel and Jerry, to secure the payment of a debt of $6628 94, due by Brien to Kirkman, Abernathy and Hanna, and that the deed was duly recorded in Warren county where the slaves were at the time of the execution of the deed, and also that upon the removal of the slaves into Hinds county, the deed was duly recorded there in January, 1843. The bill further sets forth that at the date of the said deed of trust, there existed a judgment of the circuit court of Warren county in favor of the appellee and against Brien for $676 94, with interest from the 3d day of May, 1842; that upon this judgment an execution was issued into Hinds county, and levied upon the slaves Jerry and Israel, above mentioned, whereupon Brien executed a forthcoming bond with sureties, which became forfeited on the 17th day of October, 1842; and that an execution growing out of the judgment upon the forthcoming bond had been levied upon the slaves Nat and Jerry above mentioned. The bill prays for an injunction against the sale of the said slaves under said execution. Upon a motion to dissolve the injunction for want of equity upon the face of the bill, the chancellor decreed that the injunction be dissolved as to the slave Jerry, and retained as to the slave Nat.

From an inspection of the bill and comparison with the deed of trust, it is manifest that there is some mistake in regard to the date of the execution of the deed. The deed seems to have been received for record in Warren county upon the 26th day of March, 1842. There is internal evidence in the deed that it could not have been executed as late as March 25th, 1843. But again, the bill charges that the judgment against Brien in the circuit court existed at the time of the execution of the deed, while the actual date of the judgment is arrived at by counsel in arguing the case only from the inference of the time at which its interest commenced to run. Steps will probably be taken in the progress of the case below to reconcile or correct the inconsistences that seem to subsist at its present stage. The record is, however, in sufficiently perfect shape to bring up what appears to be the prominent point at issue now presented. In reference to an incidental question arising from the alleged circumstance that the appellee had omitted to record his judgment or an abstract of it in Hinds county in accordance with the statute of 1841, it is enough to observe that the claim of the appellee is based upon an execution lien, and not upon the judgment lien. But if the judgment lien had already inured upon the slaves in Warren county, then their removal into Hinds county by the defendant in the judgment, could not defeat that lien, but this is upon the ground of the ignorance of the plaintiff of such removal, and upon the ground that such removal by a judgment debtor is a fraud upon his judgment creditor.

The main question in this case, however, is, when did the lien of the appellee date, and does it date from the forfeiture of the forthcoming bond 1 This question has already been adjudicated in this court. In the case of Archibald and Agnes Clark v. Anderson, 2 How. 852, the court say, “ the forthcoming bond after forfeiture becomes by operation of law, a judgment, and as the law will not permit two judgments to exist at the same time against the same person for the same debt, this judgment, by operation of law, necessarily extinguishes the former.” With the extinguishment of the judgment, it as necessarily follows that all liens created by that judgment are extinguished with it.

The decree of the chancellor must therefore be reversed, and an order made re-instating the injunction in its original eifect to abide the final decree in the cause, and the case remanded for further proceedings.  