
    Hood and Graham vs Winsatt.
    Replevin. Case 67.
    Error to the Washington Circuit.
    
      April 26.
    
      Execution lien. Pleading.
    
    The case, pleadings, and judgment of tlie Circuit Court.
    iteplication to a cognizance, defying any material fact therein, is good on general demurrer.
   Chief Justice Robertson

delivered the Opinion of the Couri.

In an action of replevin, brought by Hood and Graham against Winsatt, for a horse, the latter pleaded that whilst a fieri facias against one Bunch was alive and in the hands of a constable of Washington County, the said horse was the property of the said Bunch, and ivas in said county; that before the return or return day of that execution, Bunch fraudulently removed the horse to Marion County; that afterwards, and before the return day of the execution, it was returned to the justice who had issued it, and another fi. fa,, was, on the same day, issued and delivered to a constable of Marion, who delivered it to Winsatt, also a constable of that county; and that, before the. return day, he levied on the horse, which he sold, as he had a right-to do, in satisfaction of the execution.

After a demurrer to that cognizance had been overruled, Hood and Graham replied that the horse was not the property of Bunch whilst the first fi. fa. was in the hands of the constable of Washington, and that they themselves owned the horse when the last execution was levied in Marion.

The Circuit Court having sustained a demurrer to that replication, judgment of retorno was rendered in favor of Winsatt, to reverse which, this writ of error is prosecuted.

The averment (in the replication) that the horse belonged to Hood and Graham, at the time of the levy, was certainly immaterial, because, nevertheless, it might not have been their property when the execution was delivered to the constable of Marion. But the replication was good so far as it traversed the averment of property in Bunch whilst the first fi. fa. was in the hands of the con* stable of Washington; for unless that averment be true, the cognizance could not be sustained. The replication was therefore substantially good, and the Circuit Judge consequently erred in sustaining the demurrer to it.

The lieii imparted to an execution is intended to prevent the defendant from eluding its force by alienation of the property liable: quere, how long does this lien continue.

But, in remanding the case, we must decide on the sufficiency of the cognizance involved, as it is, necessarily, in the question raised by the demurrer to the replication to it.

As Winsatt has not averred that the horse continued to be the property of Bunch, until Ha.afi.fa. to Marion had been delivered to the constable of that county, the question we are now considering must be determined on the hypothesis that Bunch had transferred his right to Hood and Graham, as bona fide purchasers, before that time; for, in testing the sufficiency of Winsatt’s averments, every deduction, not necessarily inconsistent with their truth, should be assumed by the Court.

Then the sole question remaining for consideration is, whether the legal lien, which had attached to the horse in Washington, was continued in Marion, by the delivery of the renewed JL fa. to the constable of the latter county on the day of the return of the first.

This question has never, so far as we know, been hitherto expressly decided in any reported case.

Perceiving no reason, in this record, for departing from the rule of law, which generally disregards fractions of days and considers a thing done the first moment, as having, for all legal purposes, been done at the last instant of the same entire day, we will treat the delivery of the jfi. fa. to the constable of Marion as having been made simultaneously with the return of the first j/L/fl. in Wash-, ington, so that, if the lien could have been prolonged in such a case beyond the return of the first execution, there was, according to the facts pleaded, an unbroken continuity of lien in this case.

It has been well settled, that the lien imparted to a fi. fa. from the date of its delivery to the officer for execution, was intended only to prevent the debtor from eluding the process, by alienating any portion of his estate, liable to levy, and that, though a sale by him of property incumbered by such lien, may pass the title to a stranger, yet, even if that stranger be a bona fide purchaser, be takes the title, subject to the legal-right of the creditor to levy his execution and sell, 'just as he might have done had there been no such alienation. But adjudged cases, within our knowledge, have not conclusively determined how long such a purchaser is subject to such a lien.

The execution in the hands of the officer gives the lien, not the judg■ment — and it continues during the life of the execution.—

If, after the return day of an ■execution, (not levied,) one entire day elapse before another is placed in the hands of an offi. cer whore the property may he, Uhe Hen ceases.

'If a second writ ■of fi.fa. issue on the day of return of the first, (which was in the hands of an officer, for levy,) and be also placed in the hands of an offi••eer for levy, the lien created by 'the first fi.fa.'is continued, altho’ the second is issued to a different county.

There can be no doubt that, as it is the, execution in the officer’s hands for levy, and not the judgment, which operates as a lien, that lien must cease whenever the right of levy ceases, or is suspended voluntarily by the creditor, and therefore, we are of the opinion, that if after the return or return day -of a fi. fa. one entire day shall have elapsed before the delivery of another fi.fa. to an officer to execute, a bona fide purchaser of property, subject to lien under the first process, might be exonerated from the lien; for had he purchased during the interval, when there was no lien, his purchase might not have been subject to the subsequent lien attached to the last execution, and the fact that his title, was previously -acquired should not make his condition worse, the voluntary suspension of the lien, even for one whole day, consummating his right as absolutely as it could have been made had it not been initiated before that day.

But although the lien may not, in virtue of the first execution, extend, proprie vigore, beyond the life or return of that process, yet, nevertheless, may it not be prolonged by the delivery of another fi. fa. before the return or expiration of the first? It seems to ns that -reason, policy, and justice conduce to an affirmative answer to this question, and that this tendency is fortified by judicial intimations and the practiclal understanding in the country.

An uninterrupted continuity of execution process is, in a substantial and practical sense, but one entire executive remedy upon'the judgment. The lien given by law, Considered in a benefiicial sense, is but the right in the creditor to levy his execution as long as his executive remedy shall have been continued, whether by one process only, or by a continuous succession of writs of execution; a different doctrine would encourage fraud, facilitate evasion, and thus tend to injustice to the most vigi lant creditors, and to a frustration of the 'policy of the statutory lien.

An execution in the hands of an officer gives a lien on the property of the def’t in the county, ■which is not lost by the temporary removal.

The possibility and availableness of such a continuity of lien, as well as continuity of execution, was strongly intimated by this Court in the case of Daniel vs Cock-ran’s adm’r. (4 Bibb, 533,) and in that also of Harrison vs Wilson, (2 A. K. Marshall, 552.)

Therefore, we are of the opinion that if the horse, in this case, had remained in Washington county, and the second fi. fa. had been delivered to an officer of that county, when the last was delivered to the constable of Marion, the creditor’s lien would have been continued, and the horse would have been subject to levy and sale under the continued execution.

Does the fact of removal to Marion affect the principle of this conclusion? We think not.

In the case of Clagget vs Foree, (1 Dana, 428,) this Court decided that an execution lien is not necessarily lost by a temporary removal of the property, but is so far ubiquitous as to authorize a levy on and sale of it, if it should be restored to the county from which had it been removed, so as to be taken in execution whilstthe lien continues. Any other doctrine would, as seems to us, be inconsistent with the nature and end of such a lien, and would tend directly to destroy its value, by making it depend on the will of the debtor, which it was intended to control. And it appears to us that the principle of the decision just cited applies effectually to this case, for whilst the lien which had attached in Washington, was in full force, the fi.fa. to Marion, whither the horse had been taken, was delivered to a constable in that county, and thereby continued the lien until the levy and sale of the horse, so that there was no lapse or suspension of the lien from its initiation in Washington to its consummation in Marion.

The cognizance, as pleaded, is therefore, in our opinion, good, and sufficient to bar the the action, as it allows no pretext for presuming either fraud, intentional delay, or culpable lack of diligence in the execution creditor, whereby his lien might have been lost in favor of a bona fide purchaser.

Mandate.

Harlan for plaintiffs: Shuck for defendant.

But, for the error in sustaining the demurrer to the replication, the judgment of the Circuit Court must be reversed and the cause remanded, with instructions to overrule the said demurrer.  