Harnett County NcArchives Court.....W. D. Adams Et Al, J. W. Pipkin V. 1894
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/nc/ncfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Guy Potts http://www.genrecords.net/emailregistry/vols/00017.html#0004214 December 5, 2009, 10:28 pm

Source: North Carolina Reports February Term
Written: 1894

J. W. Pipkin v. W. D. Adams et al

Judgment - Lien - Expiration - Revivor

1. The statute (section 440 of The Code) contains no provision extending 
beyond ten years the lien of a judgment until a motion to revive it and to 
issue execution thereon can be heard; therefore;

2. Where a judgment creditor delays issuing execution until within a short 
time before the expiration of the lien of his judgment and then gives notice 
of a motion to revive and for leave to issue execution, and the motion is 
heard and execution issued after ten years from the date of the judgment, a 
purchaser at the execution sale of land gets no title as against one who bona 
fide bought the land during the ten years.

Action for the recovery of land, tried before Battle, J., and a jury upon the 
usual issues, at November Term, 1893 of Harnett.

The plaintiff claimed under a deed from the Sheriff of Harnett County made in 
pursuance of a sale on 7 April, 1890, under execution issued on 25 February, 
1890, on a judgment rendered in the Superior Court on 16 February, 1880. 
Notice to revive the judgment and for leave to issue execution was issued in 
December, 1889, and heard and granted by the Clerk on 17 February, 1890.

The defendant claimed under a bona fide conveyance from the judgment debtor, 
W. B. Surles, and his wife, dated 3 March, 1883.

Under the instructions of his Honor the jury rendered a verdict for the 
defendants, and plaintiff appealed.

Mr. L. B. Chapin for appellant
No counsel contra

[NC Supreme Court]
Shepherd, C. J. Assuming for the purposes of this appeal that a docketed 
judgment for costs (the amount not being specified) is efficacious to confer a 
lien under section 435 of The Code, we are nevertheless of the opinion that 
the plaintiff can not recover.

It is well settled that the lien of a docketed judgment expires at the end of 
ten years, and there is no saving clause in the act, except where the judgment 
creditor has been restrained from proceeding to enforce his judgment "by an 
order of injunction or other order, or by the operation of an appeal, or by a 
statutory prohibition." The Code, supra; Adams v. Guy, 106 NC 275.

It is plain that these provisions do not apply to the present case. The 
plaintiff could have issued executions every three years and thus have avoided 
the necessity of resorting to a motion. The Code, sec. 440. He failed to do 
this, but waited until only a month or two before the expiration of the lien 
and then moved for leave to issue execution.

In thus delaying to enforce his rights he must abide the consequences. The 
statute contains no provision extending the lien until the motion is heard, 
and it is in the interest of public policy that it should be strickly 
construed. Thus has been the principle adopted by this Court is manifest from 
the case of Spicer v. Gambill, 93 NC 378.

In that case an execution was levied on land before the expiration of the 
judgment lien, but the sale did not take place until after the expiration of 
such lien. It was held that the levy did not extend the lien to the sale as to 
defeat a purchaser whose right attached during the existence of the lien. See 
also McDonald v. Dickson, 85 NC 248; Lytle v. Lytle, 94 NC 683, and other 
cases cited in Clark's Code (2d ed.), sec. 435-440.

These authorities are conclusive against the plaintiff. The defendant 
purchased during the ten years, and at its expiration there was no lien upon 
the property. The purchase of the land by the judgment creditor under an 
execution subsequently issued conferred no title as against the defendant.

This view renders it unnecessary to consider the other questions discussed by 
counsel.

Affirmed

File at: http://files.usgwarchives.net/nc/harnett/court/wdadamse1235wl.txt

This file has been created by a form at http://www.poppet.org/ncfiles/

File size: 4.3 Kb