Holmes v. Robinson. judgments between the parties. Holmes had recovered two judg ments against Robinson, in the courts of Franklin county, for an aggregate amount of more than one thousand dollars. Robinson, who, on the record, sued for the use of Reed, had recovered against Holmes, in the Supreme Court of Pickaway county, for a sum exceeding three hundred dollars. Besides the judgment debts, Rob. inson owed Holmes some other moneys, and there was a suit in chancery pending between them, in which a master had reported a considerable balance due from Robinson to Holmes. There was no assignment of the debt against Holmes, from Robinson to Reed, but it was in proof that Robinson was indebted to Reed, and that Robinson had agreed with the attorney who held his note to Reed, 91] that the suit against Holmes should be brought for Reed's use, and the amount, when recovered, applied to the payment of Reed's claim. The motion was adjourned here for decision from the county of Pickaway. G. W. DOAN, in support of the motion. J. OLDS, against it. By the COURT: The practice of setting off one judgment against another, between the same parties, and due, in the same rights, is ancient and well established. Some of the adjudged cases go upon the principle of extending the statutes of set-off in their spirit of equity and justice. Others hold the exercise of the power, independent of the statutes of set-off, and rest it upon the general jurisdiction of a court over the cause and the parties, when before them. Of the first class of cases, we may cite 3 Wil. 296; 2 Black. 826; 2 Bos. & Pul. 28; 2 Caine, 190. Of the latter, 4 Term, 123; 1 Johns. Ch. 91; 6 Serg. & Rawle, 443; 8 Mass. 451. But in order to warrant the set-off, it seems to be equally well settled that the actual debts must exist in the same right. This is clearly settled in the cross-cases of Duthy v. Tito and others, Strange, 1203. There were verdicts in both cases for the defendants, and Tito moved to set off the costs, recovered by himself and co-defendants of Duthy, against the costs recovered by Duthy of Tito alone. But his motion was refused. Chancellor Kent considers this the true rule, both at law and in equity. Duncan v. Stiles, ex dem. Miller & McDonald, v. Murphy. Lyon, 3 Johns. Ch. 451; 2 Burr. 1214; 1 Atkins, 237; 2 Merivale, 121. It is perfectly clear, both from the record and the other prooí, that Reed has an interest in the judgment against Holmes. He does not appear before us, nor does it appear that he has had notice of the motion. He may be injuriously affected by a decision on the merits of the motion. This summary mode of exercising the legal or equitable power of the court is not the most proper, when there is an uncertainty as to the rights of parties. 8 Mass. 451. The motion must, therefore, be overruled. *STILES, EX DEM. MILLER & MCDONALD, v. W. S. MURPHY. [92 Judgment is not a lien upon after-acquired lands, aliened by the debtor before levied upon. THIS case was adjourned here, for decision, from the county of Pickaway. It was an ejectment, and came before the court upon a case agreed. The material facts were these: T. W. Dyott, at June term, 1822, recovered a judgment, in the county of Pickaway, against Henry Nevill, for one thousand and twenty-three dollars and fifty cents. Execution was taken out and levied upon a tract of land containing three hundred and thirty-three and twothird acres, on March 24. 1825. In February, 1829, the undivided two-thirds of said land was sold, on Dyott's execution, to the defendant, for seven dollars sixteen and three-fourths cents per acre. The sale was confirmed, and a deed, in due form, executed by the sheriff to the defendant, who claims under it. On September 4, 1822, Nevill acquired title to this land; on January 27, 1823, Nevill executed a mortgage of the land to the lessors of the plaintiff. On January 4, 1825, a scire facias issued upon the mortgage, and a judgment of execution was rendered on January 5, 1825. On August 1, 1826, an execution issued, which was returned, stayed. A levy was first made January 1, 1828. On February 21, 1829, the property was sold to the lessors of the plaintiff for seven dollars and seven cents per acre. The sale was confirmed, and a deed executed, in due form, under which the lessors of the plaintiff claim. Stiles, ex dem. Miller & McDonald, v. Murphy. FOLSOM, for the plaintiff. EWING and DOAN, for defendants. By the COURT: The only question submitted, was, whether a lien of a judgment attaches to after-acquired lands, so as to affect the rights of a bona fide purchaser. The question now presented for consideration 93] was decided, by this court, in the case of Roads v. Symmes, 1 Ohio, 313; but the confidence of learned counsel in a contrary opinion, has called the court to a more particular examination of the principles involved in that decision. By the common law, a man could only have satisfaction of the goods, chattels, and present profits of lands. 3 Black. Com. 418. The lands and person were exempt from execution upon feudal principles, which it is not necessary to review. The king, by his prerogative, might have execution of body, goods, and lands; and in an action of debt against an heir, upon an obligation made by his ancestor, the lands descended were liable to execution. 3 Co. 12, a; 1 Bac. Ab. 686. These were the excepted cases at common law. The statute of Westminster 2, (13 Ed. I., c. 18) subjected a moiety; and the same year the statute de mercatoribus, all the lands of the debtor to execution. The proceedings under our fieri facias have some analogy to those under the first-mentioned statute, although the tenant by elegit, and the purchaser at sheriff's sale, hold very different estates. The statute of Westminster 2, is in these words: "When debt is recovered or acknowledged in the king's court, or damages awarded, it shall be from henceforth in the election of him that sued for such debt, or damages, to have a writ of fieri facias unto the sheriff, to levy the debt upon the lands and chattels of the debtor (saving only his oxen and beasts of his plow) and one-half of his lands until the debt be levied upon a reasonable price and extent. And if he be put out of the land, he shall recover it again by writ of novel disseizin, and after that by writ of redisseizin, if need be." Rastal's Statute, 149. Strange as it may seem, it is very difficult to ascertain the extent given to liens under this statute. The 29 Car. II., c. 3, extended the creditor's right to a moiety of the debtor's land held in trust. Section 15 limits the lien to the day the judg ment was entered. Blackstone says, "If the goods are not suffi Stiles, ex dem. Miller & McDonald, v. Murphy. cient, then the moiety, or one-half of the freehold lands which he had at the time of the judgment given, whether held in his own name, or by any other in trust for him, is also to be delivered to the plaintiff to hold, till out of the rents and profits thereof the debt be levied, or until defendant's interest be expired." 3 Black. Com. 418. *2 Inst. 395, is cited, which is to the same effect. [94 Many of the English authorities warrant a different conclusion. Roll. 892; Plow. 72. The form of the elegit corresponds with the authorities last cited. The command of the writ to the sheriff is, "that without delay you cause to be delivered to the said A., by reasonable price and extent, all the goods and chattels of the said B., on the day of (the day the judgment was signed), the year of our reign, on which day the judgment was given, was, or at any time since, hath been seized to him, the said A., to hold," etc. Imp. 284. No adjudged case can be found in the English books, so far as opportunity has been allowed for examination, upon the question whether lands acquired subsequent to the judg ment, and conveyed before the execution issues, are liable to inquisition under an elegit. The Supreme Court of Pennsylvania has traced the authorities to the year books, and conclude it is not settled by any of them. The learned judges examined the case (30 Ed. III. 24), and deny the inference drawn by subsequent elementary writers from it. 6 Bin. 135. The court, however, based their decision, in that case, upon the usages and practices which prevailed in Pennsylvania. The same court in the case, of Richter v. Selim, 8 Serg. & Rawle, 425, appear to consider their former decision an innovation upon the law, and not an improvement; they therefore confine the rule most strictly to the point before decided, and refuse to extend it beyond the letter. Indeed, more than a doubt is expressed of the correctness of the former decision. In looking further into the American cases, the question still appears nowhere solemnly decided. It has been adjudged in New York, that where the body of the defendant has been taken in execution the lien of the land is suspended; and if, during impris onment, a fi. fa. is issued on a junior judgment, and the land is sold, the purchaser shall hold. 13 Johns. 533. It is also said by Spencer, Judge, in Stow v. Tifft, "that it can not be doubted that a judgment will attach on lands, of which the judgment debtor becomes seized, at any time posterior to the judgment; and nothing could prevent a judgment creating a lien on the subse Stiles, ex dem. Miller & McDonald, v. Murphy. quently acquired lands of the judgment debtor, but the circum. stance that his seizin, in the given case, was instantaneous." 15 95] *Johns. 464. The question before the court was, whether a widow could be endowed of lands when the seizin of the husband was but for an instant, and passed from him eo instanti he acquired it. The case of Ridgely v. Gartrill, 3 Harris & McHen. 449, was this: At May term, 1787, the plaintiff obtained a judg ment against G. Burgess, for the debt, etc., which was not paid. At the time the judgment was rendered, Burgess was seized in fee of a tract of land of more value than would satisfy the judgment. In 1791, Brown's executors obtained a judgment for a hundred pounds, and costs. In 1792 a fi. fa. issued, by virtue of which the sheriff sold the land to the defendant, who paid the money and obtained the deed. This was a scire facias to the defendant, as terre-tenant, to make the land answer to the plaintiff's judgment. The report furnishes no argument, or reference to authorities, or even to the statutes of Maryland. The reporter says, "the court gave judgment for the plaintiff upon the statement of facts." Upon a careful examination of all the authorities within our reach, the point under consideration does not appear to have been solemnly adjudged, upon full investigation, either in England or in our own country, except in Pennsylvania. Our researches have furnished but little light upon the question, and it seems not much less distinct in the mists of antiquity than in our own day. We would appear, then, to violate no settled principle, in analogous cases, by giving to our statute the construction which our circumstances and policy require. With us, the judgment creditor's lien upon the debtor's land, the right to sue, and the manner of transferring to the purchaser, are all matters of statutory regulation. The statute declares that "the lands and tenements of the debtor shall be bound for the satisfaction of any judgment against such debtor, from the first day of the term at which judgment shall be rendered." The writ of fieri facias "shall command the officer to whom it is directed, that of the goods and chattels of the debtor, he cause to be made the moneys specified in the writ; and for want of goods and chattels, he cause the same to be made of the lands and tenements of the debtor." It is provided in section 11 of the same act, "that the sheriff, or other officer, who, by such writ, or writs of execution, shall sell the said lands 96] and tenements so levied upon, or any part thereof, shall |