22 Ark.] OF THE STATE OF ARIcANSAS. 483 TERM, 1801.] Keatts vs. .Fowler's devisees. KEATTS VS: FOWLER'S DEVISEES: Under the TerritOrial Statute, a decree in chancery related to the first' day of the term, and was a; lien upon the lands of the defendant . on that day; and a regular sale under a decree conveyed a title superior% to that of a purchaser after the first day of the term, but prior to.the day the decree was actually made. The statute of limitations runs in favor of' a purchaser at a judicial sale' from the . day of sale; though he may never , have been, in the: actual p.os-. session of_ the land, (Mithell vs.. Etter ante.) Appeal from Pulaski Chancery Court. Hon. HULBERT F. FAIRCHILD, Chancellor. Argued before Mr. Chief Justice ENGLISH; Mr.. Justice COMP-. TON, and Hon. H. , FLANAGIN, Special Judge. HEMPSTEAD, for the plaintiff. The first and most important enquiry . whether . the . decree.
484 CASES IN THE SUPREME COURT [22 Ark. Keatts vs. Fowler's devisees. [JA.Numtv under which Fowler claimed, was a lien at all ; and if so, whether it had relation to the fiist day of the term at which it was rendered, and the lien dated from that point of time. Under the law existing at the time, judgments at law, entered in any court of record within the territory of Arkansas, were a lien on the lands of the judgment debtor for five years. Per. Dig. 339. •he statute does not say, 'or mean, that a judgment lien shall commence, or be dated from the first day of the term. It is said in Co. Lit. 102 a, that a judgment in a personal action, binds lands only from the day of the judgment given. Decrees in chancery were not a lien at all. 2 P. Wms. 622. The time a judgment was given as shown by the record, has always been the criterion for determining as to the commencement of the lien. Co. Rep. 131 ; Cro. Jac. 451 ; Murfree vs. Car-mack, 4 Yerger 270 ; Quinn vs. Wiswall, 7 Ala. 645 ; 2 Stew. 401 ; 5 Misso. 510. • The language of the statute of limitation, upon which Keatts • relies, is very broad and comprehensive : "All actions against the purchaser, his heirs or assigns, • for the recovery of lands sold at judicial sales, shall be brought within five years after the date of such sale, and not thereafter." Go-uld's Digest 749. The statute does not require possession as a pre-requisite to bringing an action. It says nothing about possession ; nor does it imply that there shall be any. But, on the contrary, it expressly negatives that idea, by -fixing the date of the sale as the true point of time from which the statute commences running. STILLWELL & WOODRUFF, contra. The territorial statute, section 9, page 116, Steele & McC. Dig., in connection with section 70, page 59, clearly made da-crees relate to the first day of the term at which they were rendered. But independent of the territorial statute, the judgments of the territorial court had relation to the first day of the term, and bound the estate of the defendant. 2 Tidd's Pr. 849,
22 Ark.] OF TT-TE STATE OF ARKANSAS. 48 5 TERM, 1861.] Keatts vs. Fowler's devisees. . . 850; Wynne vs. Wynne, 1 Wils. Rep. 36; 3 Burr. 1496; 2 N. Car. Rep. (Hawk.) 233. The whole terra in contemplation of laW, is but one day. 11 Arks. RCp. 348; 13 Ib. 673; 4 Munf. Rep. 541; 3 McLean Rep. 235; 6 How. (Miss.) Rep. 566; Scriba vs. Dea. , 1 Brock. Rep. 169. If the s:tatufe of limitatiOn cuts any figure in this case, either upon the original or 'crossiiill, it is,perfectly clear that the decree is right. Mr. Justice Goivn'ToN delivered the opinion of the court. The original bill was exhibited by Absalom Fowler, on the 10th February, 1857, against James B. ' Keatts - and others, to quiet the alleged title of the coMplainant to certain lands lying in Pulaski' county, and known as the N1 W. • sectien '25; and N. E. -1 section 26, T. 1, R. 25 West. Keatts answered the bill, and making his answer asserted title , in himself, and prayed that ' FOwler's deed might be canceled. At the hearing the Chancellor dismissed the cross-bill, and 'rendered a decree on the original bill qUietillg Fowler's title. yhe lands in controversy were' patented 1)r the' United States on the 1st December, 1830, to Dennis Trammell, who, by deed • dated 6th July, 1836, conveyed them: to Elias Rector. On bill filed and proceedings had against Rector and others, on the chancery side 'of the Circuit Court, holden for the county of Pulaski, in the then Territory of Arkansas, *a decree was rendered against Rector, on the 23d of November, 1837, being a day of the term of the court which comnienced on Monday, the 9th of October, 1837; under an execution issued on this decree, the .lands were sold by the sheriff on the 5th September, 1842, and Fowler became the purchaser. Such is the title of Fowler. Keatts also derives his title from Rector, as follows : On the 17th October, 1837, and during the term of the court at which the decree was rendered against Rector, he, by deed Of that date, conveyed the lands to Justus P. Stevens; on the 29th May, 1843, they were sold by the sheriff under execution issued on a judgment recovered against Steves, and Goodrich &
486 , CASES IN THE SUPREME COURT [22 Ark. • Keatts vs. Fowler's devisees. [JANUARY Boardman became the purchasers. Goodrich afterwards died, leaving Boardman his . exeCutOr; 'and on the .. 13th January, 1857, Keatti acquiied the interest of both, by deeds from Boardman. From what has' been said, it will 'be . seen that though the conveyance tO Stevens Is ;: as made before the 'rendition Of, the . decree against Rector, it was not made until after the first day of the' term at which the decree was rendered; and it is conceded by the counsel for Keatts,' -Olaf if' the' decree N6.s a 'lien on . the lands: and as such related to, and was in. force from the first day • Of the term, the title of Fowler, who claims under it, is paramount to that of Keatts, who claiins through the cOnveyance IrOna ReetOr tO Stevens. ' Under the territorial statute, in force at the time the decree was entered, a al decree 'ih chancery was "a lien' 'oh lands-as judgments at law in the superior cohrtf: and the territorial act of the' 3d July, 1807, then aish in 'force, after 'enacting' in* general ternis that judgments at laW in: any Court of 'recOrd, the' territory, should be . -a lien on landa,' Contahled a proviso, in" the follOwing Words': "That no — judgm'ent no* on record in' any' court within this tenitory centinue a lien on 'the' lands' and tenements Of ' any persons again g t Whom' the * mine has been• entered, ' during a longer term than five 'years from *ant after the passing of this act, unless the person Who has obtained subh judgment, or -his 'legal rePresentatives, or other Persdn. in.- teiested, shall, within the said term of five ye 'ars, sue out of the; court where the same has been entered a Writ of scire facias to revive the same. And no judgment hereafter 'entered, in any: court of record within this territory, shall continue a lien on the lands and tenements of any person against whom the same .has been entered, during a longer term than five years from the' first return daY of the term of which said judgment may be entered unless the sanie shall have been revived by scire facias within the said term of five years as aforesaid." See Steele cE McC's. Digest, page 116, sections g , 9, page 339,, section, 70. The language of -this enactment is not as explicit as it might
;:;; r 22 Ark.] OF TFlE STATE OF ARKANSAS 487 TERM, 1861.] Keatts vs. Fowler's devisees. have been; though we think the Legislature intended to provide a judgment lien, in all cases, for the full period of five Years; indeed, the language, "no judgment shall continue a lien on the lands, &c., during a longer term than five years from the first return day of the term of which such judgment may be entered," would seem necessarily to imply that the judgment should be a lien for the length of time specified, commencing on, the firs , t da . y of 'the term. follows, therefore, that Fowler, had the superior title, and that Keatt's cross-bill was properly dismissed. , Keatts, however, in order to defeat Fowler on the original bill, pleaded the limitation act, which . . provides„that all actions against the purchaser, his heirs or assigns, for. the Te , c o . ver . y of lands sold at judicial sales, shall be brought within five , years after the date of such sale, and not thereafter. Eng. Dige.st, chap. 99, sec. 6. The lands being wild and uncultivated, were never in the actual possession of either of the parties . , litigant. From the date of the' judicial sale to Goodrich & Boardman, under whom Keatts claims, to the-time of filing the bill, a per-. iod of more than five years elapsed; which, though Keatts was never in possession, is, according to the decision of this court in Mitchell & Wife vs. Etter et al., at October term, 1860, a bar to the relief sought by the original bill. So much of the decree as dismisses the cross bill must be affirmed, and so much of it as quiets the title of Fowler must be re- - versed, and the cause remanded with instructions to dismiss the original bill—each r;arty paying one-half of the costs in this court, and in the court below. Mr. Justice FAIRCHILD didnot sit in tilis case.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.