
    Miller’s lessee vs. Estill et. al.
    
    A decree of foreclosure of a mortgage, made on a bill filed by the mortgagee against the mortgager, and the deed of the commissioner selling the mortgaged premises, although it renders the title absolute, as between the parties, cannot be noticed as between third persons, and as to them, the proceedings in equity have no effect on the legal title vested by the deed of mortgage on which they are grounded.
    By the acta of 18X9, chap. 47, and 1827, chap. 59, a deed takes effect only from its registration, as against creditors of the grantor, when it is not registered within the time therein limited.
    When land is sold within one year after the rendition of the judgment, the title relates to the date of the judgment by virtue of the lien given by the act of 1799, chap. 14, and overreaches intermediate alienations, although made tahona fide and innocent purchasers.
    When nojlevy^s made within twelve months after the judgment rendered, a purchaser from the judgment debtor after that time, will take a title superior to, and exempt from the creditor’s lien; even though he had notice of the existence of the judgment.
    Knowledge of the existence of the jndgment will not deprive one who purchases twelve months after its date, of the character of 'pona fide purchaser, within the meaning of the act of 1799¡ chap. 14; that statute refers to purchasers mala fide, which are void against creditors of the grantor, because mads to hinder'and delay them.
    An injunction operates only upon the person of the plaintift at law, not on the judgment; its lien continues.
    If a judgment creditor does not have a levy and sale of land made within twelve months from the rendition of the judgment, because the judgment is enjoined, a purchaser after that time from the judgment debtor, takes.a title superior to the lien of the judgment, although he may have had notice of the existence of the judgment at law.
    The lien of the judgment; and the incipient title of the creditor which attaches by a levy of his execution upon the land, are not the same in effect. The specific lien created by levy, cannot be delealed by an injunction, though the general lien by judgment may, (when a levy is not made in twelve months, as to purchasers.
    This was an action of ejectment, for eight acres of land in Franklin county. On the 4th of June, 1818, John Dougherty was seized of the land in controversy, being eight acres adjoining Winchester: and on that day, a judg- , ,,. • n ' ' rment was obtained against mm, m tne . county court 01 Franklin county, by William Patterson, for1 one thousand and ninety dollars, besides costs.'
    On the 13th of November, 181S, a fieri facias issued upon said judgment, returnable to the 4th Monday in November, 1818, of said county court, and was returned by the sheriff “enjoined by defendant.”
    John Dougherty enjoined the collection of this judgment, alleging in his bill, that “the note was given, with one other, of one thousand dollars, and eleven hundred dollars in cash for a tract of land purchased by Dougherty of Patterson. That he, Patterson, had no title to one half of the land sold by him to Dougherty, but the same belonged to the heirs of Silas Barr: that he was unwilling to accept of the title, pay the consideration, and complete the contract, on his, Dougherty’s part, unless complainant would purchase the right of Barr’s heirs; in other words, malee him a good title for the land, &c.” Patterson answered, and insisted “he had a good title to the land sold Dougherty, and prayed for a dissolution of the injunction; that he had tendered a deed, and was ready to comply with the contract on his part.”
    At June term, 1821, of the supreme court at Sparta, the cause came on to be heard, and the court decided that “the contract between Patterson and Dougherty be cancelled, and said judgment at law, for one thousand and ninety dollars, be perpetually enjoined, unless Patterson would, in six months from that time, purchase in the title of Barr’s heirs, to the land sold by Patterson to Dough-erty.”
    Patterson was not able to purchase in the equity of Barr’s heirs within the six months, but obtained a prolongation of the time within which he was to purchase it, until June term, 1824, when he had purchased it in, and exhibited his title to the court, but the deed was not properly authenticated, so as to admit it for registration; and thereupon the court decreed, that C£if Patterson should, in six months, cause the deed from Barr’s heirs to himself, to be properly proved and registered, and should in the same time make Dougherty a title to the land, and have it properly proved, &c.;” then execution was to issue upon the judgment at law aforesaid, obtained by Patterson against Dougherty, on the 4th of June, 1818, for one thousand and ninety dollars.” Patterson complied with the requisitions of this last decree; and on the ,9th of March, 1825, caused his execution to be issued, and on the Ilth of the same month, had it levied on the eight acres of land belonging to John Dougherty, and other property, and on the 25th of April, 1825, the eight acres of land was ^old, and purchased by Miller.
    A sheriff’s deed was made to Miller, but was not registered until the 14th of July, 1828. This is the title under which the plaintiff, Miller, claims the eight acres of land.
    On the 6th of March, 1820, John Dougherty executed to Luke Tiernan and Sons, a mortgage for the eight acres of land, which was procured by James Campbell, the agent and attorney of Luke Tiernan and Sons, who knew itef Patterson’s judgment against Dougherty, and the litigation between them on the injunction bill, he being one of the counsel of iQougberty, and the one who drew the bill. The copy of the mortgage deed- which was offered in evidence by the defendants, has. endorsed on it the following certificate of acknowledgment, to wit:
    “State op Tennessee, > „ it n . > Jbrcmklvn County, )
    
    , . ,OOA Jrebruary term, 1820. J’
    Then the foregoing mortgage from John Dougherty to Luke Tiernan and Sons, for eight acres of land, was duly acknowledged in open court, and ordered to be registered. Let it be registered. E. Russel, Clerk.
    
    On said copy of the deed of mortgage, is this further certificate, to wit:
    I, Solomon Wagner, Register of Franklin county, do hereby certify that the foregoing is a true and perfect rh J , r 1 ' /• T ! copy oi the deed oi mortgage and certihcate lrom John Dougherty to Luke Tiernan and Sons, as registered in my office, in book F, and pages 327, 328 and 329. Given tinder my hand at office, this 21st day of January, A. D. 1833.
    Solomon Wagner,
    Register of Franklin County. ,
    The defendants also read a record from the court of pleas and-quarter sessions of Franklin Gounty, in the words and figures following:
    State of Tennessee.
    . At -the court of pleas and quarter sessions, held for Franklin county, on the4th Monday of February, A. D. 1820, and'onthe 28th day of February, A. D. 1820, the following entry was made, to wit:
    A mortgage from John Dougherty to Luke Tiernan and Sons, for eight acres of land, 'was duly acknowledged in open court by the said John Dougherty,.and ordered to be registered. State of Tennessee.
    I, William B. Wagner, clerk of the court of pleas and quarter sessions, do hereby certify, that the foregoing is a true cop)'-, taken from the record in my office. In testi--móny whereof, I have hereunto set my hand at office, in Winchester, this 13th day of January, A. D. 1835. '
    W. B. Wagner, Clerk.
    
    The above being the only evidence;of' acknowledgment, and of the time when said deed was registered, produced, the same was offered to be read to the jury by the defendants. > The plaintiff’s counsel objecte'd’ to the reading of said deed, not because it was a copy, but because-of the insufficiency of its probate and registration; but the court overruled the objection, and decided that the deed should be read, and it was read; to this opinion exception was taken. Previous to June, 1828, Luke Tiernan and Hons filed their bill to foreclose said mortgage, and at June term, 1828, obtained a decree to foreclose their mortgage. The land was sold under the decree, and purchased by Tiernan and Sons, at three thousand dollars, and took a deed from the commissioner, John Goodwin, to themselves. This decree was obtained before Miller had his sheriff’s deed registered. The court charged the jury, that “as Patterson, at the, time he obtained his judgment in June, 1818, had no right to have the same executed, and as the same was enjoined by Dougherty, and a perpetual injunction granted, unless Patterson should make and procure a good title to the land; it was subject to a condition, and formed no lien upon the land during the pendency of the injunction, and until the performance of the condition in the decree, and that the injunction and decree removed the lien of the judgment.”
    The jury found a verdict for the defendants, and a motion for a new trial having been made and overruled, thejjplaintiff prosecuted an appeal in the nature of a writ of error to this court.
    , Win. E. Anderson, for the plaintiff in error.
    The lien of a judgment continues, except as against bona fide purchasers, from or under the judgment debtor. Act 1799, chap. 14, Sec. 2.
    A person taking a mortgage, with notice of the judgment, is not within the meaning of the' act, he is not a bona fide purchaser. 1 Tenn. Rep. 763, Willoughby vs. Willoughby: Overton vs. Perkins, Martin and Yerger Rep. 369.
    The lessor of the plaintiffs has the better title on the ground of registration. By the act of 1819, chap. 60, the deed takes effect from registration, and the act of 1827, does not alter this, as to creditors and purchasers. We only know that this deed to Tiernan, for eight acres, was registered in 1833.
    The effect of the time of registering a deed, was not a ground in the court below, to object to its reading.
    
      The decree in June, 1828, was equal to a judgment, if they had a judgment, without a purchaser,-there would be no legal title. That sale did not take place until our deed took effect.
    The decree perpetuating the injunction, conditionally, was after Tiernan’s purchase.
    
      James Campbell, for defendants in errors
    It is insisted for defendants, the order as registered was sufficient; because, by no reasonable intendment can the order be made to apply to any other than the mortgage from John Dougherty to Luke Tiernen and Sons. The order so describes the deed; says that it is for eight acrés of land; that it was duly acknowledged in open court; and of course could be acknowledged by no other person, than by John Dougherty. The decisions in 2d Yerger, do not apply here, so as to reject the deed; but they in fact, prove that the order of registration was sufficient.
    Previous to June, 1828, Luke Tiernan and Sons, filed their hill to foreclose said mortgage; and at June term, 1828, obtained a decree to foreclose their-mortgage. The land was sold under the decree, and purchased by Tiernan and Sons, at three thousand dollars. This decree was obtained before Miller had his sheriff’s deed'registered, and the plaintiff’s deed to Miller, was void, 'as to Tiernan ánd Sons* any how, Tiernan and Sons being a judgment creditor by virtue of said decree.
    The court charged the jury, that as Patterson, at the time he obtained his judgment, in June, 1818, had no right to have the same executed; that it formed no lien upon the land during the pendency of said injunction, and his lien could not take effect from the date of his. judgment.
    In this it is believed, the court below were clearly correct. A judgment forms no lien; if the party has no right to have the same executed.
    Plaintiff contends that we have not shown that the deed was registered in time, viz. the mortgage from Tiernan to Dougherty. It was acknowledged at the time it was given. It is certainly as probable that it was registered in time, as that it was not; and the verdict was. not against evidence. But in fact no question being raised as to the time of registration, leaves it more than probable, that it was duly registered, so as to give it effect from its ac-knowledgement. It appears to have been a conceded point on both sides, that Tiernan’s mortgage was duly registered. /
   Catron, Ch. J.

delivered die opinion of the court.

1. This court is of opinion, that the mortgage deed from John Dougherty to Luke Tiernan and Sons, confers on the defendants the only title that can be noticed in a court of law. The decree extinguishing the equity of redemption, and the deed of the commissioner, John Goodwin, to the same effect, as between Dougherty and Tiernan and Sons, render the deed of 1820 absolute; but, as to third persons, the proceedings in equity bad no effect on the legal title vested by the deed on which it is grounded; becausé neither the right of Dougherty to (redeem, nor the extinguishment of the right in the manner in which it was extinguished, can be noticed in this action of ejectment.

There is no evidence that the mortgage deed was registered, other than the certificate of the register of Franklin county to the copy introduced in evidence, stating that the deed was then, on the 21st day of January, 1833, duly registered.

The sheriff’s title under which the lessor of the plaintiff claims, was consummated by a registered deed, on the 14th of July, 1828, pursuant to a levy and sale made of the premises in controversy, 1825. The mortgage deed from Dougherty to Tierman and Sons not having been registered, from any thing appearing in the record, until more than one year after it was executed, only operated and took effect from the time when registered, by force of the act of 1819, ch. 47: nor did the act of 1827, ch. 59, change the effect of the deed as to the rights of the creditors of Dougherty — creditors being excepted from the act of 1S27, and left to stand on the ground the act of 1819 had placed them. The lessor of the plaintiff having had the elder right, was therefore entitled to a verdict. ,

2. The court is called upon to express an opinion on that part of the charge, referring to the lien of the execution of Patterson against Dougherty. It is, the judgment that forms the lien. Porter vs. Cocke, Peck’s Rep. 30: Hickman vs. Murfree, Mart. and Yerg. Rep. 26; and if the land be levied upon and sold within one year after the rendition of the judgment, the title relates to the date of the judgment, and overreaches intermediate aliena-tions, although made to bona fide and innocent purchasers: But, if no levy be made within twelve months, a purchaser takes title exempt from, and superior to the lien. The bona fide purchaser referred to in the act of 1799, ch. 14, sec. 2, is not one purchasing with knowledge of the judgment; but the statute has reference to a mala fide purchaser, v'oid against creditors of the grantor, because made to hinder and delay them.

All purchases made in opposition to the general lien before the expiration of twelve months are so deemed in law, and all made after are deemed bona fide, knowledge or the want of it aside.

3. As to the effect of the injunction on the lien, the injunction operates on the person of the plaintiff at law, not on the judgment, the lien of which continues; but if for this reason no levy or sale be made within twelve mctnths, a purchaser from the debtor, takes' title superior to the lien, regardless of the condition of the creditor personally, ’ with which the purchaser has- no concern. He goes to the execution docket, and finding the judgment more than twelve months old, without a sale of the debtor’s lands having been made, proceeds to purchase, disregarding the judgment; upon which, the order ;of a ' chancellor, and the granting of an inspection can have no effect. Mart. and Yerg. Rep. 372.

4. But it is supposed, the lien of the judgment, and the incipient title of the creditor which attaches by a levy of his execution on the land, are the same in effect; and that the case of Overton vs. Perkins, Mart. and Yerg. Rep. 369, sustains the position. The court there held on undoubted authority, that the granting of an injunction did not release the land from an actual levy, and that a purchaser from the debtor could not defeat the creditor’s vested right, by virtue of the levy, without being obnoxious to the charge of fraudulent combination with the debtor, to hinder and delay the collection of the debt, for which reason his title would be void by force of the statutes of frauds, of Elizabeth, and ours of 1801, ch. 25. It need only be named to gain.admission, that there is a wide difference betwe.en the general lien on all the debtor’s lands, and a special and fixed lien, by virtue of a levy: which if it covers property to the amount of the execution, has been holden a satisfaction, because in case of goods, it is an actual divestiture of title; and in case of lands, is the inception of a right to satisfaction that cannot he defeated, hut by the acts of the creditor himself, not by the acts of the debtor conveying to a third person. This is the extent of the decision referred to, and which has no application> to a cause like the one presented by the record, when the purchaser is opposed by a general lien, and not a specific levy.

Peck J. concurred.

Green, J. concurred, on all the points in the opinion ¡except the fourth. On this he gaye no opinion.

■ Judgment reversed.  