
    Miami Exporting Company Bank v. P. Turpin and others.
    Judgment creditor can not come into equity to set up or enforce the judgment-lien against the real estate of a debtor who dies after judgment, the existence of the lien, and the method of enforcing it, being purely legal matters.
    This case was adjourned here for decision, from the Supreme Court in Hamilton county. Ic was a bill in equity, to which the defendants demurred generally. The material facts, alleged in the bill, were as follow :
    At December term, 1814, of the common pleas of Hamilton county, the Miami Bank obtained judgment against Hopkins and Halley for one thousand five hundred dollars. After suit commenced and process served, but before judgment rendered, Hopkins left the state and has not since returned. After judgment execution issued to April term, 1815, which was returned, “stayedby plaintiff’s attorney.’’ Another execution issued to August, 1815, which was returned with the same indorsement. No *other execution ever issued. In 1816, Halley died intestate, and administration was taken on his estate. The administrator, in 1817, sold, as the real estate of Halley, the land which the bill seeks to subject, under the order oí court, for the payment of debts. The sale was effected subject to the lien of the bank judgment, and it is so expressed in the administrator’s deed. Ruffner, the purchaser, entered into possession, who sold to Pultney, and Pultney to Turpin, who is in possession. The money arising from the purchase was distributed to other creditors ; no part was offered to or received by the bank. Nothing further was done until February, 1826, when the present bill was filed. The bill charges, that the money is still due to the bank ; that Halley’s estate is insolvent; that the administrator and his securities are insolvent, and that the complainants have no remedy by enforcing the lien of the judgment upon the lands, and they pray a decree to that effect.
    Storer. and Hammond, in support of the demurrer, contended:
    1. That if the complainants had any remedy, it was at law. The lien, if it existed, was a legal one, and there was a legal mode of enforcing it. The judgment must be revived at law, not in equity. A court of chancery can not set up a judgment lien, lost by the neglect of the party.
    2. That the administrator’s sale discharged the lien. When the administrator sold the land, he could not be authorized to carve out and sell a less estate than the whole, or to sell subject to conditions. The lien was to be secured by a preference in distribution, not otherwise.
    3. That the lien was lost by lapse of time. If a judgment is suffered to become dormant, and is revived upon scire facias, the lien is not revived with it. Gilbert’s Law of Ex’rs, 12; 2 Call, 187.
    
      4. That the case was not variod by the recital in the administrator’s deed; that recital contained no contract on the part of the grantee to bind the land. It could have no effect, except to conclude the purchaser should the lien be enforced.
    *Guil3?orjd, for complainants :
    The complainants ha%re certainly no remedy at law. Halley died soon after judgment against him, and his heirs removed from the state beyond the jurisdiction and process of the court. The administrators, supposing that the judgment operated as an indefensible lien upon the property, which no sale by him would discharge, sold it subject to the lien, expressly stipulating in the terms of sale that the purchaser must take it subject to, and pay said judgment; and reciting in the deed to the purchaser that the property conveyed was subject to the lien and payment of the judgment. Acting upon the supposition that complainants’ judgment was in this way provided fox’, the administrators settled up the estate and distributed all the effects among the other creditors without making any payment, or even assigning any dividend of the estate towai'd satisfying the judgment. The estate, the administrator, and his bondmen, all being insolvent and the hoix’S nonresidents, the complainants certainly have no remedy at law.
    The judgment lien was not discharged by the sale of the administrator. The statute then in force recognized every judgment rendered in the liletime of the intestate as binding the real estate of the deceased, and the lien could only be discharged by the payment of the judgment. And in this particular case the lien, by express contract and stipulation with the purchaser, was acknowledged, assented to, and reserved as a charge upon the estate sold, the purchaser deducting the amount of the judgment from the price bid for the land; so that he could not be considex-ed as discharged by the sale, when it was expressly agreed to the contrary.
    Nor has the lien been lost by lapse of time. Thex*e appears to be no limitation, by statute pr otherwise, to a vested lien. Nor could the not issuing of an execution against the intestate or his representative be considered as a waiver of the lien. The issuing of an execution would have been useless when nothing could have been seized upon it. The judgment was revived against the administrator, but the land in question could not be taken upon it without making the heirs parties, who were not in the state.
    
      *It is contended that both Pultnej7 and Turpin, who hold under Ruffner, the purchaser at the administrator’s sale, are bound by the notice of the existence of the judgment, which is matter of record; by the stipulations in the terms of sale, which were the official acts of the administrator, and form a part of the record of the proceedings in the case, existing and filed in the clerk’s office; and more especially by the recital contained in the administrator’s deed to Ruffner, that the property was bound by and subsequent to a payment of complainants’ judgment. The subsequent purchasers are bound by the proceedings of the administrators, and have constructive, if not actual, notice of the existence of complainants’ lien upon the property, and, therefore, stand in precisely the same situation that Ruffner would have done had he never sold the land.
   By the Court:

The bill seems to proceed upon the hypothesis that the purchaser from the administrator, under the circumstances of this case, took the property as it would have descended to the heir, subject to the judgment lien. As it contains no allegation of a contract on the part of the purchaser to discharge the lien, none that a portion of the price of the land was left in his hands for that purpose, it can only be sustainable upon the general ground stated. It is unnecessary for us now to say whether this is or is not a correct position. Let it be conceded, and it seems to us that the inevitable consequences must be that the complainants are not entitled to the relief they seek for. The lien could have been enforced at law. By a scire facias against the heir and purchaser, sued in proper time, the lands could have been subjected to sale in satisfaction of the judgment. Whether the administrator’s sale, taken with the circumstances that attended it, operated to destroy the lien, was a question triable at law upon the scire facias. If it can not still bo tried in this manner, it must be in consequence of the negligence of the complainants to assert their rights. And it is a novel proposition that a court of equity may be rightly called upon to assert them. The lion, if it exist, is a legal lion. And an existing lion, created by a judgment at law, *may be enforced at law. If it once had existence and is lost, equity can not restone it. The reasons assigned in the bill why proceedings can not be had at law are not substantial. That the proper parties defendants, aro absent makes no difference. The return of two sci. fas. nihil would be tantamount to a service. That the debtors, the administrator, and the administrator’s securities are all insolvent, can confer no new rights upon the complainants, either as to the lien itself, or the privilege of resorting to a court of equity to set it up or to enforce it. A court of chancery does not acquire jurisdiction merely because process at law can not be executed, nor does the fact of the insolvency of the parties of itself give it jurisdiction. Wo can perceive but a single question in this case. And it is — nave the complainants a lien upon the property named in the Dili to secure the payment of their debt? The lien claimed is not an equitable lien founded upon trust and originating in contract. It is a legal lien. Whether it exist or not is a purely legal question. If it exist, the law that gives it life is competent to effect its objects. Chancery, therefore, can not interfere. On this ground we dismiss the bill.  