Opinion by
Kinney, J.This was an action of right brought by Woods against Mains, to recover the following tracts of lands: — The north-west quarter of the north-west quarter of section thirty-five, the north-east quarter of the north-west quarter of section thirty-five, the north-west quarter of the north-east quarter of section thirty-five, the north-east quarter of the north-east quarter of section thirty-five, and the northwest quarter of the north-west quarter of section thirty-six, in township number seventy-one, north of range four west. Plea denying the right of Woods to recover, and verdict for the . defendant.
From the bill of exceptions taken to the instructions given, and refused by the court, it appears that the plaintiff introduced evidence tending to show that the defendant was in pos*288session of the lands in controversy on the day of issuing and service of process; and to show title in plaintiff, gave in evidence a judgment in the district court of Des Moines county, in favor of William T. Dyer, and against Levin N. English, rendered while it was Wisconsin, which was read from the original record book of said court, and rendered on the 19th day of June, 1838; by which it appears that a judgment was rendered in favor of said Dyer, against said English, for the sum of $59 93, besides costs of suit. The plaintiff then introduced in evidence an execution, issued upon said judgment, bearing date the 19th day of March, 1845, together with the levy return and receipt thereon, from which it appears that the sheriff had made, upon ajfi.fa., November 26, 1838, the sum of $23 32.
Said execution was levied on the 25th day of March, 1845, upon the east half of the south-west quarter of section twenty-five, the north half of section thirty-five, and the west half of the north-west quarter' of section thirty-six, in township seventy-one north, and range five west, as the property of said defendant, Levin N. English. The said lands, so levied upon, were sold on the 10th day of May, 1845, to Purley Dunlap, as the agent of said Woods, the plaintiff; and thereupon said Woods, as attorney for the plaintiff, Dyer, receipted to said sheriff in full for. said judgment. The plaintiff also offered in evidence a certificate of the sheriff, made in pursuance of said sale to him as the purchaser, and an assignment of said certificate by him made to one Wells. It also appears from the evidence, as set out in the bill of exceptions, that a sheriff’s deed was duly made by the sheriff of Des Moines county to said Wells by virtue of the sale of said land; as also a deed from said Wells to'the plaintiff, and to L. D. Stockton, Jamos W. Grimes, and Henry W. Starr; as also a deed from said Stockton, Grimes, and Starr to the plaintiff Woods. The plaintiff then introduced evidence showing that two executions had been issued upon said judgment, one of date October 6, 1838, the other of January 28, 1843. The certificate of the register of the land-office was then read in evidence, from *289which it appeared that said English purchased from the United States the land in controversy, on the 28th day of October, 1839.
The defendant then offered in evidence, for the purpose of showing title in him to the land-in question, a deed from said English and wife, made and executed on the 20th day of April, 1840, which was duly acknowledged and recorded, and from which it appears that said English conveyed to said defendant, Mains, the land in controversy. The defendant also proved that he had been in possession of the land since 1838 ; and the case was submitted to the jury, the plaitítiff asking the court to give the following instructions:—
1. That the act of Iowa, approved January 16,1840, making judgments of the supreme and district courts liens on the real estate of defendants in said judgments, operated upon the judgment given in evidence, and made the same a lien at law on all lands in Des Moines county, the title to which was in the name-of the defendant, English, on the said 16th day of January, 1840. Which instruction was refused.
2. That the judgment given in evidence was a lien on the lands of English in Des Moines county, prior to and at the date of the deed from English and wife to Mains, offered in evidence by defendant, which bears date the “ 20th April, 1840,” but which the court refused to give in terms; but gave the same with this qualification: “ But not such a lien as would effect the fee simple in Mains.”
3. That the sale and sheriff’s deed given in evidence relate back to the commencement of the lien, and passed to Wells the real estate of English, sold by the sheriff from that time, unless defendant has shown that the lien was lost or extinguished prior to such sale. Which was refused.
4. That the judgment given in evidence in this case was a lien on all the lands of defendant, English, lying in the county of Des Moines, from the date .of the judgment until the judgment was satisfied, or lien removed, or displaced by some future act done or committed, so as to prevent alienation by defendant in the judgment. Which.the court refused to give in *290terms ; but gave with the following qualification — but not such a lien as would affect the fee-simple title in a purchase from defendant during such lien.
The court then instructed the jury of their own motion, that the plaintiff in this case has not shown that in law he has any valid subsisting interest in the land described in the declaration, and the jury should therefore find a verdict for defendant.
These refusals to instruct, and instructions given, are assigned for error.
In approaching the various important questions presented by the bill of exceptions, and raised by counsel in this case, we do it with great diffidence. But we have been materially aided in coming to a conclusion satisfactory to a majority of the court, by the great ability with which the important principles applicable to judgment liens, the sale and transfer of real property, and the construction of statutes, have been discussed by the respective counsel.
The instructions of the court, as set out in the bill of exceptions, raise three important questions:
1. The doctrine of liens, and to what extent, at common law, judgments were liens.
2. The construction and effect of the statute of frauds of Iowa of 1840, and its applicability to the judgment against English.
3. Whether a judgment can bind lands purchased and acquired by the judgment-debtor posterior to the rendition of the judgment against him.
It is contended, with great apparent confidence, by the counsel for the defendant in error, that neither at common law nor by our statute, was it enacted at the time of the rendition of the judgment, nor at the time the land was sold on execution, that the judgment was not a lien upon the lands purchased by Mains of English and wife. It is also urged with great ability that the statute of frauds of 1840 could not affect the judgment against English, as the judgment was rendered anterior to the passage of that statute; and to give it such effect would *291be not only to Inake it retrospective in its action, but that it would also thereby become a lien upon lands purchased by the judgment-debtor subsequent to the rendition of the judgment.
At an early day, in England, as has been correctly said by counsel, judgments could not be collected by sale of the lands, as they were exempt upon feudal' principles. The statute of West. 2, creating the writ of elegit, by which the possession of one half of the land was sold, was enacted; and the courts held that, although the statute did not create a lien, yet from the power of the courts to enforce the collection of its judgments, it was a lien upon so much as was within the scope of the writ to execute and sell.
In the absence of statutory enactments at a later period, both in England and in this country, it has been held that judgments were liens upon lands. 2 Tidd. Pr. 967.
In the language of Chief Justice Marshall, the courts have inferred a lien from the power to take lands on execution. 1 Brock. 170. This doctrine appears to have grown out of the nature and properties of the judgment itself, and the execution to enforce its collection, and its utter imbecility without so essential a quality. This principle seems to have been so universally recognized by the courts in England and this country, that it became ingrafted into, and formed a part of the common law of the land.
Since the statute of frauds of West. 2, creating the writ of elegit, and the various acts of parliament since that statute, and the apparent necessity of statutory provisions in this country, most of the states of the Union have passed statutes upon the subject of liens, with provisions peculiar to the statutes of the respective states.
At the time the judgment ivas rendered against English, the Michigan code was in force: Iowa then forming a part of, and being under the jurisdiction of Wisconsin. By the provisions of that code, all lands and tenements, as well as the goods of the debtor, were bound from the time they were seized in execution. Mich. Code, p. 424, § 2.
*292Iowa assumed a territorial form of government in July, 1888. On the 25th day of January, 1839, the territorial legislature passed an act subjecting real and personal estate to execution. Laws of 1839, p. 191. This act subjected real and personal estate to be levied and sold upon execution.
In neither the Michigan code nor in this statute, is there any express provision making judgments in the district and supreme courts liens. Judgments then, at common law, under the writ of elegit, only being liens inferentially, arising out of the power of the courts to collect them, these statutes did not materially change or alter the common law. But the statute of frauds, of 1840, enlarged the common law by directly making judgments liens.
This statute provides u that judgments in the district and supreme courts of this territory shall have the operation of, and shall be liens upon, the real estate of the person or persons against whom such judgments may be rendered from the day of the rendition thereof, in the county within which such judgments may be rendered.”
Does this statute apply to judgments in esse at the time it took effect, or relate exclusively to those thereafter to be rendered? If it operates upon then existing judgments, the judgment against English comes within its provisions.
In Swift’s Digest the following rules are laid down for the construction of statutes : “ The common law is to be regarded, and three things are to be considered — the old law —the mischief — and the remedy: how the old law stood at the time of making the act; what the mischief was for which the common law did not provide; and what remedy the statute had provided to cure the mischief.” By the aid of these rules, we have but little difficulty in placing a construction upon this statute satisfactory to a majority of the court.
The writ of elegit in Engand, and of fieri facias in this country, seized the property, but the judgments upon which they issued were only liens, by virtue of the power of the courts to enforce the collection of their judgments.
The Michigan code, and the law of 1839, being silent in *293relation to liens, the common law remained undisturbed. What then was the mischief to be remedied 1 and what was the remedy provided by the statute of 18401
At the time this statute was passed we had just entered upon our territorial existence. Iowa was assuming a business and commercial importance, commensurate with the great and growing enterprise peculiar to the west.
The government lands were brought into a market, and the people for the first time were becoming the fee-simple owners of the soil. Judgments had been rendered in the district and supreme courts of the territory, at a time when there were not any lands On which they could be liens, the title being in the general government.
These judgments, as against real estate of the judgment debtors, having been obtained when they did not, and could not, possess any title to lands, were in many instances nugatory, and comparatively void. At common law, nor by statute, up to the statute of 1840, they were not liens upon lands purchased by the debtors, after the land came into market, and hence creditors were almost or quite remediless.
Under this peculiar state of things incident to the early history and settlement of Iorva, of which the court will take judicial notice, was the mischief, and therefore the necessity of providing a remedy by which these judgments should become liens.
Irrespective of the mischief intended to be cured by the statute, and the necessity of a remedy for which the old lav? did not provide, we would not do violence to the language of the statute, by giving it a'construction applicable to all judgments unsatisfied at the time it took effect.
Judgments in the district and supreme courts shall be liens upon the real estate of the person or persons against whom such judgments may be rendered, &c. To construe this statute as referring exclusively to judgments in futuro, would not only be forced and ungrammatical, but such a construction Avould defeat the object of the legislature in the remedy intended. If they had so intended it to have operated, it is not *294unreasonable to presume that they would have used the words, judgments hereafter rendered in the district court, &c., instead of using language which applies as well to judgments in esse at the time, as future judgments.
The judgment against English was in full life and force at the time this statute took effect. English at that time was also owner of the land in controversy. The land was in the county where the judgment was rendered; as such we think the judgment clearly became a lien, by virtue and force of the statute. In adopting this construction, and coming to this conclusion,. we nevertheless cannot recognize as sound law, that judgments will bind after-acquired land, (a)
This appears to have been a controverted question in England and the United States, and at this day it cannot be said to be well settled. Different and apparently conflicting decisions have arisen in the courts, occasioned, probably, to a great extent, in consequence of the peculiar phraseology of the various statutes.
The case of Stow v. Tift, 15 John. 457, cited by plaintiff, was a case decided upon the statute of New Yoi'Jt; and although a majority of the court appear to encourage the doctrine, that judgments will bind after-acquired land, yet Chief Justice Thompson dissented from the decision. 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 instanto he acquired it. But the case of Calhoun v. Snider, 6 Bin. 135, and the case of Roads v. Symmes, 1 Ohio, 142, as also the case of McDonald v. Murphy, 4 ib. 94, all tend to establish the principle, that judgments will not attach to lands acquired after the rendition.
If then, in these older states, where great facilities have been extended to creditors for the collection of their judgments, by statutory provisions, this doctrine has not obtained, we know no good reason for its doing so in this state; and particularly *295as the decisions of our supreme courts have not been opposed to it.
Neither is it necessary to impart any such life to the judgment against English, to render it a lien upon the land in controversy. It is true that he purchased it from the government after the judgment was obtained; but it is equally true that he had not transferred it when the statute took effect, making all judgments at that time liens upon all lands owned in the counties by the debtors, where such judgments were rendered. Neither is the statute retrospective in its action. It operates on judgments in being at the time of its passage.
At the time this statute took effect English owned the land claimed by plaintiff. Mains did not purchase until some months after; and he is presumed to have done so with a full knowledge not only of the existence of the judgment, but of the statute.
If the defendant had bought the land prior to the passage of the statute, no construction could have been given it, to have affected him. In that ease, English would have become divested of his title, and therefore the statute could not create a lien, it operating to make judgments liens upon lands of which the debtor was seized at the time of its enactment.
Therefore we think the court erred, by not giving the first instruction contained in the bill of exceptions.
It has been urged to the court, with much force, by the counsel for the defendant in error, that, as the judgment was rendered against English antecedent to our change into a territorial government, the statute could not affect it; that it could only affect such as were rendered in the district and supreme courts of Iowa. We do not think this position well taken. Section 15th, of the organic law, enacts, “that all suits, process, proceedings, &c., shall be transferred to the district courts established in Iowa.”
If, by the organic law, judgments rendered when Iowa was Wisconsin were transferred to the district courts of Iowa, and thereby became judgments in said courts, we think they *296are as much subject to the statute as if originally rendered in the courts of Iowa. That judgments were transferred, we think there cannot be any doubt. With the construction we have placed upon the statute, this objection loses much of its apparent weight.
The instruction giyen by the court, upon their own motion, we think erroneous.
It was the duty of the court to instruct the jury upon all questions of law; but it was alone the peculiar province of the jury to find a verdict upon the facts, under the instructions of the court upon the law. In this case it appears that there was a large amount of testimony before the jury, pertaining to facts — the execution of documents, and other instruments of writing, which presented questions for the consideration of the jury; and the court went too far in ordering them to find a verdict for the defendant. Rev. Stat. p. 475, § 35.
In this country it comports well with the genius and poliey of the government to extend great latitude to trials by jury, and an innovation upon that policy ought not to be tolerated by courts of justice.
The other questions raised by the bill of exceptions, and assignment of errors, are substantially disposed of by the decision upon the first instruction.
Judgment is therefore reversed, and a new trial awarded.
See Harrington v. Sharp, ante 131; also tlie dissenting opinion of Judge Hastings in this case.