The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1879-08-30
THE PACIFIC
Commercial Aoberttser.
SATURDAY, AUGUST 80.
Supreme Court, of the Hawaiian Islands,
January Term, 1879.
Mele Lindsey vs. Kainana ct al.

luA. cause Ou4A1 vi W W f1A CIAOA1 'HAs
Justice Judd on the Ninth day OF November 1878,
and after the introduction Of the Royal Patent, No.
2I22. description of the land in dispute, deed OF
J. W. Kahiamoe the patentee TO Geo. X Lindsey
and bis last Will aud Testament, and proof OF the
value OF the land by S. Kipi. and evidence of the
plaintiff as appears by record Of Hon. A. Francis
Judd, the plaintia rested.
upon the part of the defendant, it was sought to
to be proved. that an execution was issued out of
the District Court of Hamakua. and a levy on the
property in dispute. and that. the land in question
was sold under the said levy by the Sheriff to Nal
noa and by Nainoa conveyed to Kainana, one OF
the defendants and after hearing all the evidence
produced upon the part Of the defendant, as APP
pears by the record of His Honor the Judge, it was
moved on the part of the plaintiff. that the evil
dence of deed Of Kaao TO Nainoa. aud OF Nainoa
10 kainana be stricken out upon the grounds that
there was no evidence of search for them. no notice
to produce them, or that they were not recorded,
or that there had been sufficient evidence to show
their CONTENTS which motion was overruled by
the Court, to which ruling. the plaintiff noted ex-
captions. The Court reserved its judgment, jury
trial being waived. and on the 18th day of Novem-
Der 1873. the Court rendered judgment in favor Of
the defendants, to which the plaintiff excepted as
being contrary to the law and evidence. All OF
which is respectfully submitted so that the said
plaintiff may have her bill Of exceptions allowed
as before set forth.
''The notes of evidence taken by the presiding
Judge a. considered to be incorporated herein,
and the papers in the case are hereto annexed"
By THE COURT.
The papers in the case as well as the Judges
notes having been in effect included for the sake
Of reference in the bill. the arguments of counsel
were made and the opinion OF the Court proceeds
on matters which do not appear fully in the excep-
tiOns as above recited. Such matters are stated in
the opinion.
1t appears from the Judges notes sent up as
part of the record that the Sherif's deed. which is
the origin of the defendants title, was never re-
corded and has been lost, and was sought to be
established by oral testimony and it farther ap-
pears that the title of the land in controversy.
was. originally in Kahiamoe, who held by Royal
Grant. The arst question in the case is whether
Kahiamoe had been Invested of this title, at the
time be made a deed to the plaintiffs deceased
husband by a previous judgment in the District
Court OF Hamakua followed by an execution from
that Court, levy and sale OF the premises. These
proceedings were had in the year 1860, at which
time the Civil Code was in operation.
Chapter XVIII of the Civil Code is entitled = OF
the issuing of executions and proceedings there
upon" of which the first section, numbered l0l6
reads, Every Circuit Judge at Chambers,
Police Justice and District Justice, shall. at the re-
Court, unless duly appealed from, issue execution
against the property of the person recovered
against, which execution may be in the following
form.
property Oft any within your district. and
if sufficient cannot be found, then upon his real
property within said district, and giving thirty
days previous notice as required by law, to sell
the same, ETC."
Section 9Os of the Civil Code. which is included
in Chapter XIV, - or the Island Courts, not of rec
ord" reads No judgment rendered in said
(Police) Justices Courts shall be a lien upon real
property. until a transcript thereof, certified by
such Justice, shall have been docketed in the Office
Of the Clerk of the Supreme Court. Such Justices
judgment shall be a lien upon the movable pro-
perry Of the defendant in execution, not exempted
by law from levy from the time and according to
the priority Of the levy"
The provisions OF the last quoted section are not
repeated under the Chapter "Of the District
Courts" but inasmuch as the Police Courts are
only District Courts, with some special additional
Jurisdiction. it is not doubted that the judgment OF
a District Court is equally restrained and therefore
no judgment of a District Court, is a lien upon real
property until a certified transcript thereof is
docketed in the Clerks Office of the Supreme
Court
The language of 1Ol6 is general, giving Cir
cult Judges in Chambers and Police and District
Justices power to issue execution, in a prescribed
form, upon the personal property of a defendant.
and If sufficient cannot be found then upon real
property. 1t is the latter clause. which is the
foundation of the power of a Justices Court to is
sue an execution to be levied on real estate.
The alienation OF the fee of real estate by sale on
execution was unknown to the common law. The
use and profits OF the land were sequestrated by a
writ of eleyit fora part tot the land, or of ertent for the
whole of it, for a time sufficient to satisfy the iudg-
ment from the profits, during which it was held in
trust by the judgment creditor. Keats Com. ",
side page 429.
The sale of the land as is now so generally prac-
tised in the American States and as has always
been done in this country since the establishment
of courts, is a statute proceeding. and the statute
prescriptions must be exactly followed.
What, then. is the force Of section 908f 1t is con-
tended by counsel for the defendants. that docket
ing a Justices judgment. in the clerks Office,
makes it a charge. an incumbrance. on the real es-
tate (subsisting without levy made) which follows
the real estate, like an unsatis6ed mortgage till
barred by the statute of limitations but that there
was authority under section lOI6 to make an imme-
diate levy and thereby hold and sell real estate.
We are of OPTION that the language of the Sec
ton and the purview of the code will not sustain
that view.
We have no statute making a judgment of court
of record a lien upon real estate in the nature of a
incumbrance. The judgment consti-
tutes no property or right in the land. 1t only
confers a right to levy on the same. By section
1921. the officer is directed to give priority in levy
ing according to the order of time in receiving the
wTits Of execution. without reference to the date of
the Judgment. The earlier judgment creditor who
has allowed his judgment to stand is liable to have
the debtors property exhausted by an execution
taken out on a later Judgment.
The lien of judgments as a lien upon real es-
tate. and which is so prevalent in the United States.
was adopted from the English Statute of 4 and 5
w. NJ. 20. which has been improved by the statute
of l and 2 Wet. C. ll0, requiring a memorandum
of the judgment to be entered on the book in AL
order, and a fresh memorandum thereof
to be made after five years from the Grst entry"
Note. Kents Com. " p. 435.
In New York. judgments and DEGREES cease to be
charge on the lands as against purchasers in
good faith, and as against subsequent membrane
ers from and after ten years from the dOcketing of
the same. N. Y. Revised Statutes IL. 1872. sections
81. In the New England States. the judgment
is no lien and the lands are not bound until execu-
issued. bnt may be attached in the first in
by meSne process. thus creating a valid
lien. Kent's Com. " p. 435. In Pennsylvania
and IN Illinois, the Judgment is a lien for seven
years. In other states there are different proyi-
In the absence of a statute Of this Kingdom
making Judgment of a Court of record a charge
On real estate. the question would arise. whether by
the use OF the word s. lien 4" in the 90Sth section.
The Legislature intended 10 give a greater scope
10 the Judgment of the District Court, when dock
as prescribed. than is given to the judgment
Of the superior court. And it seems to Us. that
last clause of the section supplies a full expla-
nation Of the sense in which the word is used in
he first clause. In the last clause, 1t is said, that,
= the Judgment is a lien after levy made and ac-
.ording to the priority Of the levy on personal
property" Thus the words of the statute are not
hat the levy is a lien. but that the Judgment is a
len after levy it is the levy which makes the
Judgment a lien. So likewise, the first clause
means that there shall be no lien created that is to
iay. through the means Of the levy, except after
iocketing. The word Z" lien " must be taken to