Moses v. Major, 201 N.C. 613 (1931)

Nov. 10, 1931 · Supreme Court of North Carolina

201 N.C. 613

LILLIAN C. MOSES v. W. T. MAJOR.

(Filed 10 November, 1931.)

1. Judgments G a — Judgment is lien on all land to which judgment debtor has title at time of docketing of judgment.

Upon the docketing of a judgment it becomes a lien on all the land to which the judgment debtor has title for a period of ten years from the time of its docketing, O. S., 614, and the land is not relieved of the judgment lien by a subsequent transfer of title by the judgment debtor.

2. Same — Judgment lien is not affected by adverse possession against the judgment debtor.

Adverse possession against the judgment debtor for a period of seven years under color of title does not affect the lien of the judgment creditor, the judgment creditor having no right of entry or cause of action for possession, but only a lien enforceable according to the prescribed procedure, and as to him the possession is not adverse. C. S., 428.

3. Execution G a — Leave of court is not now necessary to execution on judgment after three years from date of docketing.

C. S., 668, providing that after the lapse of three years from the entry of judgment execution could be issued only by leave of court, was repealed by the act of 1927, and leave of court is not necessary for execution upon a judgment after the lapse of three years where the execution is issued after the effective date of the act of 1927 and within ten years from the date of the docketing of the judgment. G. S., 614.

Appeal by plaintiff from Clement, J., at April Term, 1931, of FORSYTH.

Action to enjoin tbe sale of land under execution and to cancel a judgment. Tbe trial court found tbe following facts:

1. Tbe defendant obtained a judgment against S. E. Case and E. S. Porter on 30 January, 1922, for $919, witb interest thereon from 19 June, 1920, and for costs; and bad tbe judgment docketed on 8 February, 1922.

2. At tbe time tbe judgment was docketed tbe record title to tbe property described in tbe complaint was in S. E. Case and E. S. Porter.

3. On or about 15 June, 1920, Harvey Allen executed a deed o£ trust on tlie property described in the complaint to E. P. Tates, trustee for S. E. Case, for a certain sum and said deed of trust was recorded in the office of the register of deeds of Forsyth County on or about 1 September, 1920.

4. On or about 25 January, 1921, a deed was executed by E. P. Tates, trustee, for the property described in the complaint, to A. E. Moses, and said deed was recorded on 9 February, 1921, in the office of the register of deeds of Forsyth County, and thereafter the said A. E. Moses conveyed said property to R. W. Tise; and in the latter part of 1929, R. ~W. Tise executed a quitclaim deed to said property to Lillian 0. Moses, the plaintiff, which was recorded in the office of the register of deeds of Forsyth County, on 4 June, 1929; and the deed from A. E. Moses and wife to R. W. Tise was recorded in the office of the register of deeds of Forsyth County, on 7 January, 1928.

5. The defendant, on 9 August, 1929, caused an execution to be issued upon the judgment heretofore referred to, and caused the sheriff of Forsyth County to advertise for sale, for the satisfaction of said judgment, all the right, title and interest of S. E. Case and E. S. Porter in and to the land described in the complaint; the said execution was returned by the sheriff and thereafter another execution was issued and placed in the hands of the sheriff of Forsyth County, who advertised the land described in the complaint for sale under said execution on 2 December, 1929.

6. On or about 30 November, 1929, the plaintiff commenced the present action and restrained the defendant and the sheriff of Forsyth County from selling said land.

7. The judgment entitled ~W. T. Major v. S. E. Case and E. S. Porter is a valid lien on the property described in the complaint, known as lots numbered 5, 6, and 7, on the plat of A. F. Moses, recorded in the office of the register of deeds of Forsyth County, in Plat Book No. 2, at page 28A, and is superior to the claim of the plaintiff.

The jury returned the following verdict:

1. Have the plaintiff and those under whom she claims title been in open, notorious, and adverse possession, under known and visible metes and bounds, of the property described in the complaint, for a period of seven years prior to 9 August, 1929, as alleged in the complaint? Answer: Tes.

The trial judge being of opinion that the plaintiff and those under whom she claims did not hold the real property adversely to the defendant adjudged that the restraining order be dissolved and that the defendant recover his costs. The plaintiff excepted and appealed.

N. 8. Crews, H. Bryce Parleer and Fred 8. Hutchins for plaintiff.

Lacy M. Butler for defendant.

Adams, J.

So far as tbe record disclosed tbe title to tbe land described in tbe complaint was in Case and Porter wben tbe defendant recovered bis judgment against them. Tbe judgment was docketed on 30 January, 1922, and was a lien on tbe land for a period of ten years from tbat date. C. S., 614.

In ber complaint tbe plaintiff alleged tbat Case and Porter conveyed tbe property to Harvey Allen on 15 June, 1920, but tbe defendant denied tbe allegation and there is no finding tbat sucb conveyance was made. There is nothing in tbe record to show tbat title was ever conveyed by Case and Porter; and tbe docketed judgment fixed tbe lien upon tbe land wben they bad tbe title. Tbe execution was issued on 9 August, 1929, within ten years from tbe date tbe judgment was docketed.

Tbe plaintiff seeks to enjoin tbe execution and to vacate tbe judgment on tbe ground tbat tbe sale would create a cloud upon ber title and would impair its value. She has no complete chain of title and relies upon adverse possession for seven years prior to tbe time tbe execution was issued as determined by tbe verdict. She says, also, tbat no execution was issued on tbe judgment during this period.

With respect to this proposition we may suggest tbat tbe statute relating to tbe possession of real property for seven years (C. S., 428) restricts an entry upon land or an action to recover it by a person claiming title or tbe right of possession. Tbe defendant is a judgment creditor; be has no right of entry upon tbe plaintiff’s land or cause of action for its possession; be has neither jus in re nor jus ad rem in tbe judgment debtor’s land but a mere right to make bis lien effectual by following tbe course prescribed by law. Dail v. Freeman, 92 N. C., 351. As to him tbe plaintiff’s possession was not adverse. Tbe land is not relieved of tbe judgment lien by a transfer of tbe debtor’s title, and adverse possession cannot defeat tbe efficacy of a valid judgment lien. C. S., 668, which provided tbat after tbe lapse of three years from the entry of judgment execution could be issued only by leave of tbe court, was repealed by tbe act of 1927, before tbe issuance of tbe execution in question; and section 667 was made to conform to tbe new law. Pub. Laws 1927, cb. 24.

We are of opinion tbat none of tbe eases cited by tbe appellant sustains ber several contentions.

No error.