
    Collin S. Tarpley vs. M. B. Hamer et al.
    The act of the legislature of February 6th, 1841, entitled, “ an act to regulate the liens of judgments and decrees,” which provides that judgments and decrees theretofore rendered, should be liens from the date of rendition, upon property out of the county where the judgment was obtained, on condition that an abstract of such judgment should, by the first of July next thereafter, he filed in the office of the circuit court of the county in which the property was situated, is (notwithstanding previously to the passage of this law, such judgment was a lien on all the property of the defendant therein in the state), a constitutional and valid act; and if the abstract of the judgment he not filed according to the provisions of the law, the lien of such judgment out of the county of its rendition is lost.
    An act cannot be said to impair a lien, which leaves it entirely at the discretion of the party, whether he will preserve it or not; the act of 1841 deprived the creditor of no rights, but imposes a duty on him required by public interest and safety, in order to preserve his rights ; if he fails to comply with this duty, it is a voluntary abandonment of his right.
    It seems that any legislation which might lessen the extent or the efficacy of the remedy on existing contracts, or which should change or diminish the force of existing liens, is objectionable.
    The lien of judgments in the circuit courts of the United States, is derived entirely from the State law, and when enforced as a lien, it is done on the authority of state laws; it must, therefore, submit to any changes which the legislature may think proper to make. Legislative acts in relation to judgments, are rules of property, and as such, binding on the federal courts.
    Therefore, where a judgment was obtained in the circuit court of the United States for the southern district of Mississippi, prior to the passage of the abstract law of 1841, and no abstract of it was recorded in the county of Yazoo, but an execution issuing on it was levied by the marshal on a negro, who sold the negro to T. Afterwards the same negro was levied on by a younger judgment, rendered in the Yazoo circuit court; and in a trial of right of property between T. and the judgment creditor in Yazoo, it was held the latter would hold the property.
    Nor in such case would it make any difference, that the judgment creditor in Yazoo had notice of the judgment in the federal court; that judgment, by the failure of the plaintiff therein to record the abstract in the county of Yazoo had lost its lien ; and notice of that which is no lien, amounts to nothing.
    
      In error from the circuit court of Yazoo county ; Hon. Morgan L. Fitch, judge.
    An execution issuing on the 5th day of February, 1844, upon a judgment in the circuit court of Yazoo county, in favor of M. B. Hamer & Co. against Burwell Whitehead and Nathaniel H. Hurst, rendered on the 16th day of May, 1838, for $336 97, was on the 11th of March, 1844, by the sheriff of Yazoo county levied on a negro girl, named America, as the property of Nathaniel H. Hurst. On the 23d of March, 1844, C. S. Tarpley, Esq., claimed the slave thus levied on as his property, and gave bond to try the right of property. At the May term, 1844, of the circuit court, an issue was made up to try the right of property; and at the November term, 1844, a verdict was rendered against the claim of Tarpley, in favor of M. B. Hamer & Co.
    From the bill of exceptions sealed at the trial, it appears that after the plaintiffs in execution had concluded their proof, Tarp-ley proved that he had purchased the slave America on the 4th day of March, A. D. 1844, under execution issuing on a judgment in the circuit court of the United States for the southern district of Mississippi, in favor of Brown, Robb & Co. against Whitehead and Hurst, for $2635 84, rendered on the 8th day June, A. D. 1838; and had received a bill of sale therefor from the marshal.
    Upon this testimony, Tarpley asked the court to instruct the jury, “ that a judgment rendered in 1838, in the circuit court of the United States for the state of Mississippi, is a lien from its time of entry or rendition until satisfied, upon all the property of the debtors defendant therein, though situated in any other county in said state than that in which the same was rendered, notwithstanding said judgment had never been enrolled in pursuance of the provisions of the act of the legislature of the state, entitled, “ an act to regulate the liens of judgments and decrees,” passed 6th February, 1841, in the county where the property of the defendant therein sought to be charged and sold under it, is situated. This instruction was refused.
    And Thrpley sued out this writ of error.
    
      
      John Battaile, for plaintiff in error,
    contended,
    1. That the law of 1841, if constitutional, did not apply to the federal courts. He cited Bond v. Jay, 7 Cranch, 350 ; Bank of the United States v. Halstead, 10 Wheat. 51; 6 S. & M. 628.
    2. That the legislature of Mississippi had no constitutional power to pass such a law to operate on judgments of the United States courts, any more than congress had power to pass a similar law to operate on liens in the state courts. He cited 4 Kent’s Com. 437, note c.; 4 Peters U. S. R. 124, 366; 5 Ibid. 358 ; Beers v. Haughton, 9 Pet. U. S. R. 329, 359, 372 ; Way-man v. Southard, 10 Wheat. 1.
    3. That the act of 1841 was unconstitutional, as impairing the rights of the creditor. Ogden v. Saunders, 12 Wheat. 213; Bronson v. Kinzie, 1 How. U. S. Sup. Ct. Rep. 324; Bank of United States v. Halsted, 10 Wheat. 20-51; McCracken y-Heyward, 2 How. U. S. R. 608 ; 1 Peters Cir. Ct. R. 484-486 ; 1 Gall. R. 168, 169; 9 Peters R. 330; 4 Kent, 169, 170; Sug. on Tend. 227, 253, 254; 16 Ves. 419.
    
      N. G. and S. E. Nye, and W. R. Miles, for defendant in error,
    insisted that the law of 1841 was constitutional, and applied to the federal courts, and cited 2 Humph. Tenn. R. 576.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This case originated in a trial of the right of property, levied on under an execution in favor of defendants in error. The negro girl, which is the subject of dispute, was purchased by the plaintiff in error, at marshal’s sale, under a judgment in the United States court, older than the judgment of defendants in error, which was a judgment of the circuit court of Yazoo county.

The case depends on two questions. First, is the act of the legislature, passed on the 6th of February, 1841, entitled, “An act to regulate the liens of judgments and decrees,” a constitutional and valid’ pet as respects prior judgments 7 And second, if it is so, does it apply to judgments rendered in the federal court 7 We respond to both of these questions in the affirmative.

The first section of the act provides, “ that all judgments and decrees of any superior, circuit, district or superior court of law or equity, holden within this state, shall operate as liens from the date of their rendition upon the property of the debtor, being within the county in which the sitting of such court may be holden, and not elsewhere, unless upon compliance with the conditions hereinafter enacted.”

The second section provides that judgments previously rendered, shall be liens from the date of rendition, upon property situated in any other county, on condition that an abstract of such judgment should, by the first of July next thereafter, be filed in the office of the circuit court of the county in which the property was situated, as directed in the succeeding section.

The property was levied on, and sold by the marshal in Yazoo county. The judgment was rendered prior to the passage of the act, but had not been registered as therein directed.

This act does not impair the lien of any judgment creditor, who has recorded his judgment. It simply requires of him to record an abstract of his judgment within a given time. An act cannot be said to impair a lien, which leaves it entirely at the discretion of the party, whether he will preserve it or not. Nor does it in any sense impair the obligation of the contract by operating on the remedy. The remedy remains unchanged. The law had previously given to judgments the effect of a lien without limit as to time, and without condition. The duration of the lien is now limited, unless the condition be complied with, and in that case it remains as it stood before. The act effects no change absolutely, or against the consent of the creditor, and it rests upon the same principle which authorizes the legislature to pass limitation laws to operate on subsisting contracts, and registry laws; to operate on existing conveyances, giving, in each case, a reasonable time within which the effect of the statute may be avoided. Such laws have universally been admitted to be valid. Jackson v. Lamphire, 3 Peters, 280; 7 Louisiana R. 301; Hayward v. McCracken, 2 How. S. C. 608. In Ross v. Duval, 13 Peters, 45, a law of Virginia which required that judgments should be revived by sci. fa. after a certain time, was held to be a mere limitation law. Individuals cannot be deprived of their rights, but duties may be imposed on them which are required by public interest and safety. This is in effect a conditional act of limitations, and it is also a registry act. A judgment is a constructive notice of an existing lien. This law changes the mode of giving that notice, and whilst it protects, in all respects, the rights of the judgment creditor, it also more effectually protects the public, by placing the means of information with regard to liens, within the reach of the citizens of every county. And whilst we freely concede that any legislation which might lessen the extent or the efficacy of the remedy on existing contracts, or which should change or diminish the force of existing liens, might be objectionable, yet we do not think this act has that effect.

The second question seems to be even less doubtful. The lien of a judgment in the federal court is derived entirely from the state law, and when it is enforced as a lien, it is done on the authority of state laws. As it exists only by virtue of the state law, it must submit to any changes which the legislature may think proper to make, which do not affect the process. It surely would not be contended that, if the legislature were to repeal the law entirely as it regards future judgments, the judgments of the federal courts would still be liens. And yet that would be the consequence of the principle contended for. The case of Ross v. Duval, 13 Pet. 45, settles this question. An act of a state legislature in relation to judgments, was held to be a rule of property, and as such, binding on the federal courts under the thirty-fourth section of the judiciary act. It was said not to fall within the provisions of the process acts of congress. The judgment, is a lien given by law, and the existence or validity of a lien is a very different thing from the means by which it is to be enforced. The one is regulated and determined by the state law, but the other by the act of congress. In Tayloe v. Thomson, 5 Peters, 358, it was held that the lien of judgments constituted a rule of property, in reference to which the federal courts were bound by the statutes of a state, and the interpretations which had been given them. See 1 Kent’s Com. 5th ed 248, note. The precise point now under consideration was settled in the same way by the supreme court of Tennessee. Reid v. House, 2 Hum. 576; Andrews v. Wilkes, 6 How. 554.

The title of the plaintiff in error has been attempted to be sustained on the ground that the defendants in error had notice of the judgment under which he claims. The doctrine of notice can have no application whatever. The judgment ceased to be a lien because it was not recorded, and notice of that which was not a lien amounts to nothing. But there is no proof of notice, unless it be such as might arise from the existence of the judgment.

Judgment affirmed.  