Rowe v. Bonneau-Jeter Hardware Co.

On Rehearing. Appellant insists that we did not properly understand his contention with reference to sections 7875 and 7806 of the Code of 1923, Code 1940, Tit. 7, §§ 585, 519. It is as we now understand it that section 7806 enumerates property subject to levy and sale under execution, which he admits includes that which had been fraudulently conveyed, but points out that section 7875 creates a lien not on the property which is subject to levy and sale under execution without more, but also that it must be property "of the defendant," and that property which had been fraudulently sold is not property of defendant though subject to levy and sale under execution against him.

We intended to make our opinion clear and again emphasize the statement which we consider the sound result of our cases that when property has been conveyed by the debtor when such conveyance was fraudulent and subject to be vacated by a creditor who subsequently obtains a judgment and a statutory lien by recording the proper certificate, if such property would be subject to levy and sale but for the fraudulent conveyance, it was still the property of the judgment debtor notwithstanding the conveyance so as to be subject to the lien of the judgment under section 7875, supra. The fact that a fraudulent conveyance is voidable as to creditors, and not void (First National Bank of Birmingham v. Love, 232 Ala. 327,167 So. 703), does not militate against this principle. For it is said in Smith's Ex'r v. Cockrell, 66 Ala. 64, 82, that "As to creditors * * * the legal title remains in the judgment debtor until the sale and conveyance by the sheriff, and then it passes to the purchaser." All property from the time when it becomes subject to levy and sale under execution against a judgment debtor is his property for that purpose and subject to the lien provided by section 7875, Code of 1923 (Title 7, section 585, Code of 1940).

The second contention now made, as we understand it, is that the lien of the judgment whose enforcement was extended beyond ten years by section 585, Title 7, Code of 1940, ceased to be the same lien as that which existed and was created by filing the certificate, and therefore did not exist more than four months prior to the bankruptcy of Mercer Rowe. It is of course true that it is only such lien as existed more than four months before bankruptcy which may be enforced in this suit. This we think is the plain import of what is stated in the foregoing opinion. But we are persuaded that when a suit is filed within the ten-year period of section 7875, supra, which created the lien, and when its purpose is to enforce it, the fact that the suit is filed after section 585, supra, became operative so as to continue the right to enforce it during the period of that litigation, and only in it, a new and different lien is not created at the expiration of the original ten-year period, but merely the remedy to enforce it is enlarged and the period of its operation is extended only for that limited purpose, but it is the one and the same lien which was created by filing the certificate more than four months before bankruptcy.

The suit was filed to enforce the lien as it existed four months before bankruptcy. Section 585, Code of 1940, supra, retained the jurisdiction thus acquired to enforce *Page 334 that lien in that suit, though the original ten-year period should thereafter terminate.

The third contention is that in holding that adverse possession is an element of the statute of limitations as a defense to an action for the recovery of land we do not abide by the case of Van Ingin v. Duffin, 158 Ala. 318, 48 So. 507, 132 Am.St.Rep. 29. We did not think it necessary to repeat what we said in Van Antwerp v. Van Antwerp, 242 Ala. 92, at page 103, 5 So.2d 73, at page 81, that for the reasons there stated and after careful consideration of the question, "[that case] is not to be treated as authority for a different view." The principle of the Van Ingin case, supra, was not followed in the later case of Waddail v. Vassar, 196 Ala. 184, 72 So. 14, which cites the older cases of Shorter v. Smith, 56 Ala. 208, 210, and Scruggs v. Decatur Mineral Land Co., 86 Ala. 173, see page 177, 5 So. 440. The case of Washington v. Norwood, supra, has been cited with approval in many cases. Davis v. Harris,211 Ala. 679, 683 (15), 101 So. 458; Drummond v. Drummond, supra. The Van Ingin case, supra, has not been followed in this respect. Attention need not be given it further on this point.

Application for rehearing overruled.

GARDNER, C. J., and BOULDIN and STAKELY, JJ., concur.