
    Fendall H. Robinson vs. Giles S. Tainter.
    The forfeiture of a forthcoming bond, and the judgment consequent thereon, . is an extinguishment of the lien of the original judgment.
    ERROR, from the circuit court of Hinds county; Hon. John H. Rollins, judge.
    This was an action of ejectment, brought to the December term, 1841, of the circuit court of Hinds county, by Giles S. Tainter, to recover lot No. 100, in the town of Clinton. Fendall H. Robinson was made defendant at the return term. At the March term, 1844, the cause was tried. Both parties claimed title through James W. Chandler, and it was agreed, on the trial, that proof of title in him should not be required, each admitting his title to have been perfect.
    Tainter derived title to the lot in controversy, directly from Chandler, by bargain and sale, on the payment of $2000. His deed was made and delivered on the 23d of August, 1838, acknowledged on the 24th of the same month, filed for record, on the 17th of September, 1838, and recorded on the 21st of the same month. This deed was read in evidence by the plaintiff, which, with the admission of title in Chandler, as above, and possession by defendant, &c., was all the evidence offered by him.
    R. N. & N. M. Goode, use, &c., had recovered a judgment in said circuit court of Hinds county, against James W. Chandler and Joseph W. Barnes, in the sum of $77 87, on the 29th of May, 1838. A fi. fa. issued thereon, returnable to November term, 1838, was, on the 28th of August, 1838, levied on a horse, the property of Chandler, and a forthcoming bond taken of that date, executed by Chandler, and H. J. Nicholson as surety, which was forfeited on the 17th day of September, 1838, and the jft. fa. and bond were returned accordingly. On the 2d of October, 1839, a fi. fa. issued on the statutary judgment, entered on the forfeited forthcoming bond, against Chandler and Nicholson, was levied on the lot in question, as the property of Chandler, and on the 4th of November, 1839, the lot was sold by the sheriff, and bought by the defendant, Robinson, and on the 6th of November, 1839, the sheriff made and delivered to Robinson, a deed of the same. The record of these proceedings, judgment, &c,, and the sheriff’s deed, were read in evidence by Robinson, and constituted all the evidence offered on his part.
    On the application of the plaintiff the court below charged the jury as follows: “ If the jury believe, from the evidence, that the plaintiff’s lessor was a bona fide purchaser of the lot in controversy, before the forfeiture of the forthcoming bond, shown to them in evidence by the defendant, then -they must find for the plaintiff.” To the giving of which the defendant then excepted. The defendant then asked the court to give the jury the four following instructions, to wit:
    1st. That the deed read in evidence by the plaintiff was not proved or acknowledged, or certified and recorded, as required by law, and could convey no title, as against the defendant in this action.
    2d. If the jury believe, from the evidence before them, that the forthcoming bond, given - by James W. Chandler, with H. J. Nicholson surety, as set out in the record, was made and executed after the deed made by said Chandler to the plaintiff, then the title to the defendant was good against the plaintiff, and the jury should find for the defendant.”
    
      “ 3d. If the jury believe, from the evidence before them, that the deed from Chandler to the plaintiff was made while the writ of fieri facias was in the sheriff’s hands, in favor of R. N. & N. Goode, on their judgments against Chandler, and remaining unpaid and unsatisfied in any manner, and before any forthcoming bond was given by Chandler on said judgment and fi. fa. then they should find for defendant.”
    
      “ 4th. That the deed to lessor of the plaintiff, from James W. Chandler, was not proven, or acknowledged, and recorded according to law, and was therefore not proper notice to defendant, and if the defendant purchased bona fide, without legal and proper notice of plaintiff’s title by the due proof and recording thereof, the defendant, if a purchaser without such notice, obtained a good title against the plaintiffs.”
    These instructions the court refused to give, to which the defendant then also excepted.
    The defendant below afterwards moved the court for a new trial, on the ground that the court erred in giving the instruction asked for by plaintiff, and in refusing to give those asked for by defendant. The court overruled the motion, to which the defendant, Robinson, also excepted. The jury found a verdict for the plaintiff. The defendant then moved for a new trial; and, his motion being overruled, he brought the case to this court by writ of error.
    
      J F. Foute, for plaintiff in error.
    The question presented in this case is this : Is the land of a defendant, against whom judgment is rendered, and which is sold by defendant, and conveyed while the execution is in the Rands of the sheriff, but not in fact served thereon, if the defendant gives a forthcoming bond, with security, which is forfeited after the bargain and sale of land, discharged from the lien of such judgment, and does the bargainee take the land, discharged of the original judgment lien 1 Plaintiff in error insists that the judgment lien is not released. See Planters Bank v. Calvit, 3 S. & M. 143; Kilpatrick and others v. Dye's Heirs, 4 lb. 292.
    All the cases decided by our court, in which the statutory judgment on a forfeited forthcoming bond are said to be satisfaction of the former judgment, are to be taken as limited to the precise subject-matter of the case. Coward v. Atlantic Insurance Company, 1 Peters, 443, defines what is a judgment lien, and which has been recognized by this court. The act of 1824, declaring all judgments a lien on property of defendants, is a subsequent enactment to that providing for statutory judgment on a forfeited forthcoming bond, by act of 1822, (Rev. Code, 203,) and was manifestly intended by the legislature to provide an additional, cumulative security to judgment creditors, and should be so construed, otherwise, another and different security for the judgment is forced on the plaintiff, without his agency or consent, to be substituted for his security and lien by the act of 1824, and not an additional or cumulative security is given, but one that may be worthless and unproductive, substituted.
    The original judgment should be declared a lien on the property of original defendant, from its date; and the judgment on forfeited forthcoming bond, a lien on property of the security in the forthcoming bond, (who becomes a judgment debtor,) from the date only of the statutory judgment on forthcoming bond.
    Our universal practice in issuing final execution on the statutory judgment on forfeited forthcoming bond, is to recite the date of the original judgment, and direct the interest to be collected from that date. And the judgment is not set out and recited as having been rendered at date of forfeiture of the forthcoming bond, or of the term at which it is returned.
    The execution was issued, and in sheriff’s hands, before, and at the time the conveyance was made by Chandler to Tainter, and no bond or forfeiture had then any existence.
    
      E. W. F. Sloan, for defendant in error.
    I can discover but one question in this case, to wit: Did Tainter, by his deed from Chandler, procure a title to lot No. 100, in Clinton, divested of the lien of the judgment. As the lien of the judgment on forfeiture of the forthcoming bond, did not then exist, it is evident that Robinson acquired no title by his purchase at sheriff sale, that can overreach Tainter’s title, unless the lien of the original judgment remained in full force, notwithstanding the giving and forfeiture of the forthcoming bond.
    The giving and forfeiture of a forthcoming bond is a satisfaction of the original judgment. Davis v. Dixon's Administrator, 1 How. 64, 98; 3 Munf. R. 454; Walker’s R. 175, 251, 267. It is an extinguishment of the original judgment. 5 How. R. 200. An execution on the original judgment is a nullity. 6 How. R. 513.
    A second execution, levy and bond, on the original judgment, would be void. 3 How. R. 60. A writ of error will not lie upon it. Ib. 34.
    How can a judgment operate as a lien on the property of defendant, when it is satisfied, or extinguished, and when no process can issue upon it ?
    ■ “ A judgment creditor has no jus in re, but a mere power to make his general lien effectual, by following up the steps of the law, and consummating his judgment by an execution and levy on the land.” Per Justice Story, in Conard v. The Atlantic Insurance Company, 1 Pet. R. 443. See also the case oí Planters Bank v. Calvit, 3 S. & M. 198, in which the same view is taken.
    The record shows that the levy of the personal property, under the Goodes’ execution, for the forthcoming of which the bond was given, was made on the same day the conveyance was made by deed to Tainter. There is no proof to show whether this conveyance was made before or after the levy; nor do I conceive how that question can have any bearing on the merits of this cause.
    The giving and forfeiture of a forthcoming bond is a satisfaction of the original judgment, and its lien is gone. A bona fide purchase at any time before the forfeiture, must necessarily vest in the vendee a title divested of the original judgment' lien. And certainly the lien of the statutory judgment cannot commence before the time of forfeiture.
   Mr. Justice Clayton

delivered the opinion of the court.

The single question in this cause is, whether the forfeiture of a forthcoming bond, and the judgment consequent thereon, is an extinguishment of the lien of the original judgment.

Giving to the former decisions' of this court their full and legitimate effect, there can be no doubt upon that point. Such judgment on the bond, merges the former judgment, with all its incidents. So the court below decided, and the judgment is affirmed.  