PRIORITY Trust result payment of purchase money; ted by sta It was formerly held, that a resulting trust in lands was liable to be seized and sold on execution, where the trust reing from the sulted in favour of one who advanced money for the payment of lands purchased by, and conveyed to, another. Now it is how regula- provided, that "where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favour of the person by whom such payment shall be made; but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section."55 tute. Lands contracted for 66 Every such conveyance shall be presumed fraudulent, as against the creditors, at that time, of the person paying the consideration; and where a fraudulent intent is not disproved, a trust shall result in favour of such creditors, to the extent that may be necessary to satisfy their just demands."56 "The provisions of the preceding fifty-first section shall not extend to cases, where the alienee, named in the conveyance, shall have taken the same as an absolute conveyance, in his own name, without the consent or knowledge of the person paying the consideration, or where such alienee, in violation of some trust, shall have purchased the lands so conveyed, with monies belonging to another person.' 9957 "No implied, or resulting trust, shall be alleged or established, to defeat or prejudice the title of a purchaser, for a valuable consideration, and without notice of such trust."58 It is provided by statute, that "the interest of any person not bound. holding a contract for the purchase of lands, shall not be bound by the docketing of any judgment or decree, nor be sold by execution upon any such judgment or decree."59 54 3 Johns. Rep. 216. 55 1 R. St. 728. 56 Ib. s. 52. s. 51. 57 1 R. St. 728. s. 53. 58 Ib. s. 54. 59 1 R. St. 744. s. 4. See 1 Johns. Ch. Rep. 52. S. C. 17 Johns. Rep. 351. 18 ib. 94. 9 Cow. Rep. 73; and how the judg. ment creditor is to obtain relief in equity in such case, see post, "Execution." The statutes provide, that "the real estate which belonged to any deceased person, shall not be bound, or in any way affected, by any judgment against his executors or administrators; nor shall it be liable to be sold, by virtue of any execution issued upon such judgment.' 9960 ca. PRIORITY AND LIEN. suspended and revive, on acquired du but does not affect right ring the sus pension. The lien of a judgment may be suspended, and afterwards Lien may be revive thus, pending the imprisonment of a debtor on a sa., another creditor obtained a judgment against him, which a fi. fa. was issued, and the real estate of the debtor levied on and sold by the sheriff: the debtor having been afterwards discharged from imprisonment, under the "act for the relief of debtors, with respect to the imprisonment of their persons," a fi. fa. was issued on the first judgment, according to the provisions of the act: it was held that the lien of the first judgment was suspended during the imprisonment of the debtor on the ca. sa.; and that the new execution could have no priority to any lien created, or right acquired by others, during the imprisonment; and the sale under the second judgment was therefore good. €2 secure pur chase mo ney preferred to judgment lien. It is provided by statute, that "whenever lands are sold Mortgage to and conveyed, and a mortgage is given by the purchaser at the same time, to secure the payment of the purchase money, or any part thereof, such mortgage shall be preferred to any previous judgment which may have been obtained against such purchaser."63 Under a similar provision in the former statutes, it was held, that the priority thus given, not being restricted by the words of the act to the case of mortgage to the vendor of the land, if therefore the purchase money was advanced by a third person, to whom the purchaser, at the same time that the conveyance was executed to him, exe 602 R. St. 449. s. 12. 611 R. Laws, 349. See 2 R.. St. 253. s. 157. Ib. 30. s. 12. Ib. 33. s. 12. VOL. II. 34 62 13 Johns. Rep. 533. AND LIEN. PRIORITY cuted a mortgage of the same land to secure the money advanced, such mortgage was entitled to the same preference over a prior judgment, as the vendor of the land would have had, had the mortgage been executed to him.64 Judgment creditor en ority of pay fund to pay debts. It has been held, that where a trust is created by a debtor titled to pri- for the payment of creditors, one of whom is a judgment crement out of ditor, he is entitled, in equity, to payment, in preference to creditors of an inferior degree, out of the trust fund: although, had the fund been created by an order of the court of chancery, he could only have been paid pari passu with the other creditors.65 Executions to be satisfied according to judgment, are sold. As a judgment, regularly signed, filed, and docketed, has a priority of preference over subsequent judgments against the same dewhere lands fendant, as a lien upon his lands,66 if several executions come to the hands of the sheriff against the same defendant, on judgments docketed at different times, on which he takes and sells the lands of the defendant, he must apply the proceeds to the discharge of the different judgments, according to their priority, and not according to the times when the executions were delivered to him.67 The fraction of a day will to give effect a judgment. Where two judgments, in favour of different plaintiffs, against be regarded, the same defendant, were filed and docketed on the same day, to the lien of it was formerly doubted whether either had a preference as a lien; and whether, if one of the plaintiffs took out an execution and delivered it to the sheriff, before the other plaintiff issued his execution, and the lands of the defendant were taken and sold, a priority was not gained by the vigilant creditor, so that his execution must be first satisfied.68 It was afterwards expressly decided, that where the different times of day, at which the judgments were respectively docketed, were noted by the clerk, the court would regard the fractions of a 64 15 Johns. Rep. 477. 67 18 Johns. Rep. 120. day, in order to give the judgment first docketed, the priority to which it was entitled by statute.69 The statutes now require the clerk to note the hour of docketing the judgment.70 PRIORITY AND LIEN. ment prefer 'fraudulent conveyance It has been held, that where land is conveyed, between the Lien of judg rendering and docketing of a judgment against the vendor, red to a to a purchaser who has notice of the judgment, with intent to between elude the judgment creditor, such conveyance is void as to the and docketdebtor, and the purchaser from him; though not as to a bona ment. fide purchaser from the latter."1 rendering ing judg ority, of recovered on sale of land A special priority is sometimes given by statute to certain Special prijudgments: Thus, where lands owned by several persons are judgments conjointly assessed for taxes, and a part belonging to one is account of sold for such taxes, and some of the owners do not pay their for taxes, due proportions according to law, he whose lands were sold is entitled to recover of those owners a just proportion of the money he pays on redemption ;72 or if he does not redeem, the same proportion of the value of the land sold and conveyed, that such owners ought to have paid of the tax, interest, and charges for which the land was sold :75 And it is provided, that "every judgment obtained under either of the two last sections, shall have priority as against the lands of the defendant therein, on which the tax was assessed, and for which such proportional part ought to have been paid, to all mortgages executed, and all judgments recovered, since the twenty-third day of April, eighteen hundred and twenty-three."74 But it is provided, that such judgment shall not be entitled to the priority thus conferred, "unless, at the time of docketing the same, the plaintiff cause an entry to be made by the clerk, in the docket thereof, specifying that such judgment has priority, as a lien on certain lands, over mortgages and other judg PRIORITY AND LIEN. and of judg ments reco ments, pursuant to the laws regulating the collection of taxes; which entry shall be a part of such docket."75 A preference is also given by the following statutory provivered for an- sions, to decrees in equity, obtained against heirs or devisees,76 on lands de- for the debt of the ancestor or devisor cestors debts scended or devised. upon lands descended or devised, over judgments obtained against the heirs or devisees for their own debts. "Every final decree rendered in such suit, shall have preference as a lien on the real estate descended, to any judgment or decree obtained against such heir personally, for any debt or demand in his own right."" "When it shall appear in any such suit, that before the commencement thereof, any such heir has aliened the lands, tenements, or hereditaments descended to him, or any part thereof, he shall be personally liable for the value of the estate so aliened, and judgment shall be rendered therefor, and execution awarded, as in suits for his own debts.""78 "In such cases the preference herein before declared, in respect to demands against the ancestor of such heir, shall apply, and such heir may show the same matters herein before allowed; and the same proceedings and judgment shall be had thereon."79 SECTION IV. OF AMENDING JUDGMENTS; OF SETTING OFF JUDGMENTS; OF THE Amending judgments.] A mere miscalculation of the damages recovered, will not avoid the judgment,80 and the clause of in toto se attingunt, at the end of the judgment record, 75 2 R. St. 361. s. 14. 77 2 R. St. 454. s. 48. 78 Ib. s. 49. 79 Ib. s. 50. 80 3 Brod. & Bing. 309. |