Tobin v. Myers

The opinion of the court was delivered by

Me. Justice McGowan.

[Omitting the statement.] A judgment is registration of what the court decides. A writ of execution is judicial process to enforce that judgment. One is passive and the other active. Both the judgment and execution are links in the title to property purchased at sheriff’s sale; both are necessary, and if either is void, the title of the purchaser fails. For reasons of policy to sustain sheriffs’ sales, purchasers at such sales are favored to the extent that mere irregularities in the process will not avoid the sale. If purchasers at their peril were held responsible for the perfect regularity of process *328under which property is sold, the result would be that property would be sold at a sacrifice, and the usefulness of such sales be greatly impaired, if not destroyed; but this rule, as to mere irregularities, does not apply where either the judgment or execution is absolutely void.

The first objection to the title in this case is that the judgment under which the sale was made, was, at the time of the sale, paid and satisfied by operation of law, and was, therefore, fimctm officio; that twenty years presumes payment, and that more than that time had elapsed. To this it is answered that three days before the twenty years had expired, the plaintiffs procured the clerk of the court, without notice to the defendant in execution, or, he being dead, to his executor, to issue a new execution, which was levied on the lot in controversy, and that this ex parte, action of the plaintiffs shows that they did not sleep over their rights during the whole period of twenty years, and stopped the completion of the time necessary to raise the presumption of payment. As the execution is the only means which the plaintiff has to enforce payment of his judgment, and it is in one sense connected with the judgment, there has been some difference of opinion as to the effect of a renewal of the execution in regard to the running of the time necessary to presume payment of the judgment. But, after very full consideration, it was held by the old Court of Appeals in the case of Dillard v. Brian, 5 Rich. 501, that “the period of time (twenty years) which raises the presumption that a judgment is satisfied, begins when the judgment is entered up, and not when the last renewal fi. fa. is tested or loses its active energy.” This is in point, and unless overruled, must control this case. We will not re-open the argument. Counting from the rendition of the judgment on May 14th, 1860, (disregarding the effort to renew by mere copy on May 11th, 1880,) to September 5th, 1881, when the lot was offered for sale, nearly twenty-one years had elapsed, and the artificial force of the presumption had attached. Willingham v. Chick, 14 S. C. 102; Boyce v. Lake, 17 S. C. 481.

This view is conclusive of the case, and it is unnecessary to consider the other questions raised, whether the execution, under which the levy was made, was renewed according to law, and if *329not, whether said execution was absolutely void or only voidable. There can be no valid.execution or sale under it, when the judgment on which it was issued is satisfied either in law or in fact. When the land in this case was sold, more than twenty years from the rendition of the judgment had expired and raised the presumption of payment, which was not rebutted by the ex parte effort of the plaintiffs to renew the execution. “ To explain the indulgence there must be some act or admission on the part of the defendant, showing -the continuance of the debt. In the issuing, returning and renewing of executions, the defendant has no action. It may be done and redone for forty years, and unless he is astute enough to examine the clerk’s and sheriff’s offices, he will be ignorant of the facts.” Dillard v. Brian, supra.

The judgment of this court is that the judgment of the Circuit Court be affirmed.