
    THE BANK OF MISSOURI vs. WELLS & BATES.
    1. If an execution be issued upon a judgment, arid levied while the judgment is a lien upon real estate, the effect of this is to continue the ixen and its priority until the writ is executed; although before it is executed, the time during which the judgment is alien, had elapsed.
    ERROR TO MARION CIRCUIT COURT!
    Glover & Campbell for plaintiff.
    1st. The lien of a j udgment without revivor expires by the express proviso of the statute at tho end of three years. Seo R. Code 1835 p. 339. The lien of the judgment is a right created by the statute, and cannot bo extended farther than the statute goes. 9 Wendell 158; 5 Cowen 294; 18 Wendell 622. In New York it will be seen by the authorities quoted that the provisions of the New York statute except front the computation of the period of the lien, any portion of that period in which there may have been enjoined by some order in chancery against proceeding.
    No such provision is contained in the statute of Missouri. The words are “liens shall commence on the day of the rendition,’’ and shall continue for three years. It is not said they continue longer; unless revived, of course'they do not. If it was designed by the law giver to continue it longer by issuing execution, he would have said execution, and not scire facias. The instruction of the court is directly in the teeth of the statute. The statute says it may be continued by scire facias; the court says it may be continued by execution. The statute has no exception in it, the court says the failure of the court to sit is an exception. The failure of the term is not hardship on the judgment holder, he should have taken his scire facias. By the law of Now York it appears tlie judgment does not cease to be a lien against the judgment debtors^ the lien ceases only as to the third person; by óur law the iien ceases as to the defendant in j udgment. 7 Cowan 540.
    The circuit court regarded the case in 1 Cow. 495, which declares the lien extended by execution taken out as an authority in point, but that case went upon a provision in the statute in force at the time. By our statute the scire facias is the only means of extending the lien.
    2d. The lien of the plaintiff’s judgment was revived and continued for two years by suing out a scire facias before the expiration of the three years, the same having been regularly prosecuted to judgment afterwards. R. C. 1835, sec. 6-7 and C. 10, Í Gilman R. 644; 2 Tuck. Com. 375-6; 2 Am. Chy. Dig. p. 10, No. 49.
    3d. The evidence introduced by the plaintiff showed a right of recovery in the plaintiffs against the de'biKlanls if the foregoing propositions are correct. Here the plaintiff purchased all the interest ol Wm. Wright, but Wm. Wright has transferred that interest in defiance of law to Bates, and Bated has so transferred at to Welle ; under the circumstances it seems to us the circuit court ought to have held tile pos.TJssinn of Bates and Welle the possession of Wright. 1 Wendell 317; 6 John R 33-4 5; lOJohnsR. 291-J: 18 Johns 7; Jb. 92. The doctrine of this court has been affirmed by tiiis court. 5 .Un. R. 43.
    4th, Tho lion of tho execution is a different thing from the lien of judgment, commences only When the it ft comes to the halt is of tho officer, (R C. 1835, sec. 18, p. 25S) exists whother the judgment has n lien or not, and may be determined on principles peculiar to itself. See Wise vs. Darby 9 Mo. R. 131 ; we know of no principle by which two Hons existing contemporaneously can.
    5th. The statute upon the subject of the lapse of term of court will not save the defendant’s right. Tho plaintiff took his scire facias, anti the s.tirte remedy was open to the defendant. He refused to resort to it. He knew the court hal lapsed, and that it constituted no exception in the statute, but still refused. The hardship of which he complains is the result oí his delay for two whole years to execute his lion, and his rofuva! to revive it under the statute Tho judgment lien in this case is not embraced by the wor.is of this statute. Tite legislature has the power to make the process of the-courts returnable to such ¿courts as they choose, hut whether the legislature could extend this judgment Hen is a graver question.
    Pratte & Anderson for defendants.
    1st. The levy of the execution upon the land during the lien ofthe judgment, created a lien which gave precedence, and could not be lost by the lapse of a term of the court,
    2d. The plaintiff's judgment in scire facias did not revive the lien as to his original judgment, it "being a new judgment for a certain sum, and execution awarded thereon. It could only enforce itself and not relate to any other judgment.
    In 2 Croke 73, a sheriff had seized goods which wore not sold nor execution returned, and sheriff dismissed from office, and aiterwards the ex. sheriff sold the goods—courts say that the execution was an entirety, that it gave him authority to s-dl without any other writ and the sale good. This has ever since been the law, that when a levy is made during the life of an execution, no venditioni-exponas is necessary, but the sale bo made on the execution that was levied, as by virtue of that levy it is sold, the writ of ven, exponas merely going to sell what has been heretofore levied on.
    The session acts of 1842-3, at page 54, Lays that no recognizance, suit, or oilier matter shall be dismissed discontinu •or fail by reason of the alteration of the times of holding said courts. There was two terms of the court yet to elapse bofor1 the expiration of the lien of the judgment, which lapsed, no person was to be prejudiced by the alterations of the terms of the court.
    The levy was made long before the expiration of the lien of the judgment. The levy vested th© property in the sheriff in contemplation of law. The levy was notice to all persons.
   Scott, judge,

delivered the opinion of the court.

This was an action of ejectment brought by the plaintiff in error against the defendant in error for lands and lots in Marion comity. In consequence of adverse instructions, the plaintiff submitted to a non-suit, and after an unsuccessful application to set it aside, sued out this writ of error.

The plaintiff claimed the premises in controversy under a sheriff’s-sale and deed, on a judgment dated 4th May, 1840, on which execution issued 1st July, 1842, returnable to the first Monday of September, fallowing. The execution was levied 2d July, 1842, and the sale was made 18th August, 1843. On the 5th April, 1843, a scire facias was sued out on the above mentioned judgment for the purpose of continuing the lien of' it, and a judgment of revival was entered on the 24th. Nov., 1843, after a sale of the premises had taken place.

The defendant’s title was-a sheriff’s deed, under a judgment entered 11th January, 1840, on which execution issued 19th Aug., 1842, returnable to the- first Monday in September following : which was levied the day of its date, and the sale under it was made 18th August, 1843.

This controversy has arisen from the failure of the judge to hold a session of the circuit court at the return term of the writ; and the act of the general assembly, approved 24th Feb., 1843, Sess. acts, page 61, which was passed before the next regular term of the court, and which postponed its session until the first Monday in August, 1843. The 15th section, of the above recited act provides-that no recognizance suit or other-matter shall be dismissed, discontinued, or fail by reason of the alteration of the times of holding said courts ; and sales of property which world have been made at the first term, as heretofore established, shall be made at the next term to be held under this act. The act concerning courts, Rev.. Co.de 1835, page 160, sec. 52, provides that no. writ, process, plea, or proceeding whatsoever, civil or criminal, shall he deemed discontinued or abated by reason of the failure of any term, or session of any court; but the same shall be continued on as if no such failure or adjournment had taken place.

The defendant contended that by virtue of these acts, his-Ren was preserved, and no scire facias was necessary to continue it. The plaintiff, on the other hand, maintained that the liens being executed by statute, could continue for no longer time than was allowed by law, and, having expired before the sale, the subsequent revival of the judgment by scire facias issued before the expiration of. tbs lien, related back and gave him a priority.

The court entertaining views corresponding with those contended for by tlie defendant, ruled accordingly.

The obvious intent of the acts above cited, was to annihilate, as it were, the time intervening between the return day of the writs and that to which their execution was postponed. They were designed to malie the writs as effectual to all intents and purposes, as if executed at the term to which they were made returnable. The delay was involuntary and against the consent of- the party, and to hold that it worked him an injury would be the greatest injustice. The words of the statute are sufficiently comprehensive to hear this interpretation, and respect for the general assembly requires that they should, he thus construed.

The lien of-the judgment, under which the defendant dedupes his title, was prior to that of the plaintiff, and long before the expiration of the prior lien, an execution was sued out and delivered to the sheriff, the effect of which was to continue that lien until the execution of the writ, although the time had elapsed during which the lien of a judgment continues. Rev. Code, title Execution, sec. 18. It would he an act of supererrogation to require him to revive his judgment in order to preserve his property. The only effect of it would be delay. Then the prior levy of the execution under the junior judgment, although the lien of that had not expired, did not divest the priority of the older judgment.

The judgment reviving the lien of the junior judgment was not rendered until after a sale of the premises in dispute. The party thus by his own act having disposed of the. property on which he wished to impose or continue his lien, it is obvious that the judgment of revival could not relate back and give the purchaser at the sheriff’s sale a right which did not exist at the time of the purchase. The party suing out the scire facias to recover his judgment was under no obligations, to continue the proceedings after the sale. He might have discontinued it at his pleasure ; the purchaser, therefore, could not have been influenced in his conduct by any assurance of a revival of the lien. If the sale of the propferty did not satisfy the judgment, the revival would have had the effect of reviving the lien on any real estate owned by the defendant in the execution, or which he had disposed of while subject to it, but surely a creditor could not thereby entitle himself to a lien on property of the defendant which had been disposed of by his own act.

The judgment of the court below is affirmed, the other judges concurring. ‘  