Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-11-22

versy2
We have given careful examination
to the question, so far as we could do so
from the authorities furnished us, and
such other authorities as we could obtain,
and we hold that the levy of complainant
was abandoned and ceased to be nope
ratiYe as lien on the land in contro-
versy, by reason of the laches of the de-
PENDANT in. asserting his rights under the
same which, if not asserted at the time
prescribed by Code $3.50, at the next
term of court after return of execution
levied, at any rate, ought to be donS with
in e reasonable time thereafter.
It is the policy of our law to discourage
secret liens as against innocent purchasers
and creditors, end when such liens are
given, as in case OF levy of execution
from a Justice of the Peace, the party
should not be permitted to rest upon his
legal right, keep the fact of the lien secret
for an indefinite time and then come for
ward and assert it, as against the rights
of parties who have innosently paid their
money for the property.
In case of levy Of execution on person
salty the rule is settled ths., eff the
goods are permitted to remain in the
debtors possession for an unreasonable
length of time, or If the creditor, desiring
to favor the debtor, instruct the officer to
delay snd not to proceed with the execu-
ton, TIC goods remaining 10 the debtors
possession and use, the execution would
be deemed fraudulent IS to creditors and
purchasers. Etheridge ct ais IS. Ed
wards. ! Swami, 429. Roberts VS.. Scales
ct ais. l Iredell, Law R. p. 80.
We viii not undertake to define what is
an Unreasonable time to delay sale under
execution, but IN view of the require
ments of the law, that IN ease of levy on
real estate, by execution based on JUS
tees judgment, the Justice shall return
the papers to the next term of the Circuit
Court, which court is to condemn the
land and make an order of sale at said
term, which the Sheriff would be required
to execute and return by the next sue
ceeding term, we think that delay from
January, 1852, to March term, 1856, is a
most unreasonable time, during which,
the creditor sleeps On his right, under his
levy.
1t has been insisted that the war inter-
yeued, and courts were closed. We can
not judicially say when the courts in Sui
Ivan county were closed, as courts were
held open in some portion. of the State
much longer than in others, and were
never closed by any authority. This is 9
fact which, however, may have very
material influence on the result in this case
on the hearing on the proof after answer.
We can at present, however, only decide
on the facts presented on the face of the
bill.
We can, however, judicially know when
our courts were reopened; as it is part
of the history and one of the facts Of our
State Government. We know that the
first Circuit Court was held on Mon
day in July, 1866, again in November,
and that the March term, 1866, was the
third regular term of the court after the
war.
This delay of defendant after opening
of the courts of the country, forms a ma
terial consideration for the conclusion we
have reached in this case.
Sc far as it appears to us, there may
have been several terms of the Circuit
Court of Sullivan county in 1862, after
the levy of the executions in this case.
The defendant ought to have made some
effort to continue and effectuate his lien,
if such courts were held. He might have
had the papers returned to court, where
the case would have been docketed, and
being in the nature of a proceeding in
rem, against the specific property de-
scribed in the levy, it would have had the
effect of lis pendens, in court of record,
and have been notice of his lien to all
who might purchase the land. We hold
therefore, that the delay and laches shown
by the facts in this case, unexplained,
except by the fact of the existence of the
war, is, as against an innocent purchaser,
for valuable consideration, evidence of
abandonment of lien, if not of fraud,
and that a title, obtained by sale of the
land under such levy, in the hands of the
plaintiff in the ext cutiOn, cannot be al
lowed to prevail in a court of equity.
1t has been insisted by counsel that this
is not a case for the action of q court of
equity in removing cloud from the title
| of complainant, because he is in posses
sion of the land, and time will strengthen,
not weaken his title. We, however, think,
that levy on land of a party, sale,
after condemnation by Circuit Court,
under order of said court, aud purchase
| by the plaintiff in the execution, and
sheriff's deed for the same, as we are
bound to presume the sheriff has done his
duty III the case as the law directs, is such
an apparent title or claim to the land, as
furnish a ground for an appeal to court
of equity to remove the cloud thus i'm
| pending over title of an innocent purcha.
SCI, end that he has the right to ask that
this title be declared void.
Such claim is one that would seri-
! Ously affect the value of the land in the
market, would hinder its sale, if not en-.
tirely prevent its being sold for its full
value, as no one would desire to purchase
4 law suit, and the party holding land
under such circumstances, might well
have reasonable grounds for apprehension
of future inconvenience and injury, and
ask the court to quiet, and clear up. what
the court sees to be, good and valid
title. As TO the question made in the bill,
that the levy is void, because not showing
that there was property, real or personal,
of the principal to be found, on which tt
levy" before levying on property Of
surety, we think there is nothing in thii
of which complainant can take adVant.
age.
The statute is directory TO the sheriff
and is for protection Of the surety, but Il
he submits to it, no one else can be heart
to complain.
Upon the whole, we conclude, the de
murrer was improperly sustained, and WI
reverse the decree of the Chancellor ant
remand the cause to be further proceeded
in. FREEMAN, Judge.
A true copy.
| Test. ]. E DRAnRRICK. Clerk.