This case was assigned to me in Division Two, where I wrote an opinion holding that the judgment below should be reversed and remanded with directions. My brother WHITE there wrote an opinion, which was labeled a dissenting opinion, and took the contrary view. As there was no opinion in division, the case was transferred to Court en Banc. Here the majority of the court rejected my opinion and the case was reassigned to Judge WHITE and he has written the opinion of the court. I have carefully considered his opinion and cannot yield my concurrence therein and respectfully dissent. I will use by divisional opinion, omitting the statement of facts. Certain other suggestions have been added.
The sole question, presented by the record below and by the briefs and arguments of counsel in this court, *Page 436 is whether or not a judgment of a Federal district court is a lien upon real estate of the judgment debtor, situated in the county where such judgment is rendered, from the date of its rendition, without a certified transcript thereof having been filed in the office of the clerk of the circuit court of such county. If so, the judgment should be reversed. If not, the judgment should be affirmed.
It is conceded that in Congress rests the sole power to legislate upon the subject of liens of judgments of courts of the Federal Government. We must, therefore, first look to the acts of Congress. Section 1 of the Act of August 1, 1888 (25 Statutes at Large, 357) reads as follows:
"Judgments and decrees rendered in a circuit or district court of the United States within any State, shall be liens on property throughout such State in the same manner and to the same extent and under the same conditions only as if such judgments and decrees had been rendered by a court of general jurisdiction of such State; provided, that whenever the laws of any State require a judgment or decree of a State court to be registered, recorded, docketed, indexed or any other thing to be done, in a particular manner, or in a certain office or county, or parish in the State of Louisiana before a lien shall attach, this act shall be applicable therein whenever and only whenever the laws of such State shall authorize the judgments and decrees of the United States courts to be registered, recorded, docketed, indexed or otherwise conformed to the rules and requirements relating to the judgments and decrees of the courts of the State."
Section 2 of said act throws no particular light upon the subject of our inquiry. It merely provides that clerks of the courts of the United States shall keep records and indices of judgments of said courts. The court of general jurisdiction mentioned in Section 1 is the circuit court in Missouri. That court and the Supreme Court and the several courts of appeals, together with *Page 437 the county court and the probate court, are courts of record in this State. [Sec. 2323, R.S. 1919.] Section 1555, Revised Statutes 1919, provides that "judgments and decrees rendered by any court of record shall be a lien on the real estate of the person against whom they are rendered, situate in the county for which the court is held." Section 1556 provides that such lien shall commence on the day of rendition and continue for three years.
It is appellant's contention that, as the circuit court is the State court of general jurisdiction and as its judgments are liens upon the real estate of judgment debtors situate in the county for which such court is held and, as Section 1 of the Federal act, above quoted, provides that judgments of the Federal courts "shall be liens on property throughout such state in thesame manner and to the same extent and under the same conditionsonly" as judgments rendered by the circuit court, appellant's judgment against Mrs. Whitlock became a lien against the real estate here involved from and after its rendition in the Federal court and that appellant's title, acquired by purchase at the sale under execution issued on such judgment, is superior to the title of respondent by virtue of a deed from the judgment debtor, executed and delivered after such judgment was rendered. To arrive at the correct conclusion, it is necessary to understand the history, nature and extent of liens of Federal court judgments prior to the enactment by Congress of the Act of August 1, 1888. At that time judgments of Federal courts were liens upon real estate of the judgment debtor, not only in the county where such judgments were rendered, but in all counties within the territorial jurisdiction of the court rendering same.
The majority opinion quotes from the opinion of Judge CALDWELL in Dartmouth Savings Bank v. Bates, 44 F. 546, where such history is discussed, but omits a very important part of such opinion and I here quote it in connection with the quotation set out in Judge WHITE'S opinion, to-wit: *Page 438
"The first clause of the act places judgment liens in a Federal court on the same footing in all respects as a judgment lien in a State court of general jurisdiction. But the power of Congress was not adequate to the task of extending the territorialoperation of a judgment lien in the mode provided by State laws for a judgment in the State court. Congress was confronted with the difficulty pointed out by Mr. Justice McLEAN, the law of a State might provide for filing and docketing a transcript of a judgment of a State court in the clerk's office of any county in the State, and in this way extend the lien of a judgment beyond the county in which it was rendered. But there was no Federal clerk's office, or other like office, in each county in the State in which a judgment rendered in a Federal court could be docketed; and Congress could not make it obligatory on the State clerks to docket and enter a judgment of a Federal court on their records. But it was entirely competent for the State to require her clerks to perform this service, and the proviso in Section 1 of the act declares, in legal effect, that when the laws of a State provide for docketing in her clerks' offices, or other offices, the judgments of Federal Courts, in the same manner that judgments in her own courts may be docketed, then, and not before, the territorial extent (in other respects they werealready the same) of the lien of a judgment in a Federal court in that State shall be the same as that of a judgment in the State court. Where the laws of a State provide for docketing the judgments of its own courts in any county in the State, but do not make a like provision as to the judgments of the Federal court, the act of Congress is not operative; and in such Statesthe lien of a judgment of a Federal court continues to becoextensive with its territorial jurisdiction." [Italics my own.]
It is apparent from reading the first section of the Act of August 1, 1888, that Congress intended to change the existing rule that Federal court judgments are a lien upon lands throughout the territorial jurisdiction *Page 439 of such courts, only in those States which passed laws authorizing Federal court judgments to be registered, recorded, docketed, indexed or otherwise conformed to the rules and requirements relating to the judgments and decrees of State courts, and that, where any State has not passed such laws, the rule that Federal judgments are a lien throughout the territorial jurisdiction of such courts is still in full force and effect.
In Lineker v. Dillon, 275 F. 460, VAN FLEET, J., in discussing laws of such character passed by the State of California, said, at page 475:
"I am satisfied that the legislation, whether from inadvertence or otherwise, does not, for the reasons stated, afford that degree of `conformity' which the act of Congress contemplates as essential to bring it within the latter and put judgments of Federal courts on an equality with those of the State; that consequently the act of Congress does not take effect in this State, but the judgments of these courts must be regarded as constituting therein liens on the real estate of judgment debtors throughout the extent of their territorial jurisdiction."
This State has enacted legislation enabling transcripts of Federal court judgments to be filed in the offices of the clerks of the circuit courts of the counties of the State and thereupon to become liens upon the real estate belonging to judgment debtors, situate therein, in the same manner as judgments of courts of one county may be transcripted to another county. [Secs. 1554 and 1583, R.S. 1919.]
Taking by itself the language of that part of Section 1 of the Federal act preceding the proviso, I think there can be no doubt that the judgment we are considering became a lien upon the property here involved from the day of its rendition. The language "in the same manner and to the same extent and under the same conditions" is broad enough to make a Federal court judgment a lien in the county where it is rendered without filing a transcript thereof, if a judgment of the State court of generaljurisdiction constitutes such lien. "In *Page 440 the same manner" and "under the same conditions" can mean nothing else. "To the same extent" may refer to the kind of property to which such lien attaches or to the territorial extent of the lien or to both. If a State makes its judgments a lien on real estate only, then Federal judgments become liens on such property only. If such lien extends only to the county, then the lien of the Federal court judgment is so limited. The status of the lien of a judgment of the State court of general jurisdiction fixes the status of the lien of Federal court judgments in every respect. Such is the only meaning which can fairly be given to Section 1 of the Federal act.
Respondent argues and the majority of my brethren seem to hold that the repeal by Congress in 1916 (39 Statutes at Large, p. 531) of Section 3 of Act of August 1, 1888, as amended in 1895, shows that it was the intention of Congress to make a Federal court judgment a lien upon real estate in the county where same was rendered only upon filing of a transcript therein. Section 3, as enacted, read as follows:
"Nothing herein shall be construed to require the docketing of a judgment or decree of a United States court or the filing of a transcript thereof, in any State office within the same county or parish in the State of Louisiana in which the judgment or decree is rendered in order that such judgment or decree may be a lien on any property within such county."
In 1895 the following words were added thereto: "If the clerk of the United States court be required by law to have a permanent office and a judgment record open at all times for public inspection in such county or parish." (28 Statutes at Large, 814.)
The fact of such repeal furnishes respondent with a very plausible argument that Section 1 did not originally and does not now make a Federal court judgment a lien in the county where rendered unless a transcript thereof is filed in such county. I regard the argument as unsound. We are not advised of the reasons presented to Congress which actuated it in enacting Section *Page 441 3 in the first place or in later repealing said section, after it had been amended. The provision that a Federal court judgment should be a lien upon rendition in the county where such judgment was rendered without filing a transcript therein gave an advantage to Federal judgment creditors not possessed by judgment creditors in the courts of those States which require particularsteps to be taken in addition to the mere rendition of a judgmentbefore it becomes a lien in the county where rendered, and Section 3 tended to prevent the complete harmony and conformity aimed at in Section 1. A very good and completely satisfying reason for repealing Section 3 is found in the evident purpose of Congress to put Federal judgments on exactly the same footing as state judgments. The enactment of Section 3 failed to accomplish this in all cases and its repeal did effectually accomplish such purpose in all cases and in every State. It is inconceivable to me, as it is contended in respondent's brief, that, by such repeal, Congress intended that judgments of Federal courts should not become a lien in the county where rendered unless and until a transcript thereof is filed in the circuit clerk's office, while the State court judgment becomes a lien therein without such procedure. Such a purpose would be in hopeless conflict with the purpose expressed in Section 1.
Respondent places great reliance upon, and the majority opinion cites, the case of In re Jackson Light Traction Co., 265 F. 389, and same case upon appeal, 269 F. 223. Mississippi is one of the states which requires certain subsequent steps to be taken before a State court judgment becomes a lien even in the countyof rendition, and, of course, under Section 1 of the Federal act, the same steps had to be taken in that State with respect to a Federal court judgment before it became a lien. In that case the judgment creditor in the Federal court failed to have his judgment enrolled in the proper office in the county until after the judgment debtor went into bankruptcy and it was held that such judgment was not entitled to priority. The reasons advanced by the *Page 442 district court were similar to those advanced by respondent here, to-wit, that Section 3 provided that no transcript was necessary and that its repeal made the filing of such transcript necessary. HOLMES, District Judge, said: "Section 3 obviated the necessity of such enrollment, but the repeal of Section 3, by the act above quoted, which became effective January 1, 1917, rendered the same procedure as to a Federal court judgment necessary in the county where the judgment was rendered as was required in the other counties of the State in order to obtain a lien." The learned district judge seemingly erred in his reasoning, although his conclusion was correct. The enrollment was in fact necessary under Section 1 of the Federal act, because such enrollment was necessary in the case of a State court judgment in the county where rendered.
When the case came to the Circuit Court of Appeals for the Fifth Circuit, no such reasons were given for affirming the judgment. Section 1 of the Federal act was quoted, and it was said: "We cannot see, therefore, where there is any discrimination against the United States courts when they are put on the same footing with the State Supreme Court, and every other State court at law or in equity where the judgment is not rendered in the same court on whose judgment roll an abstract must be enrolled in order to give it a lien on the property of the judgment debtor." The fact of the repeal of Section 3 of the Federal act was not mentioned by the Circuit Court of Appeals, and therefore the effect of such repeal was not considered. I think the case lends no support to the contention of respondent here.
The majority opinion, as does respondent, lays much stress upon Section 1554 of our statute, which provides that judgments obtained in the Supreme Court, the court of appeals and Federal trial courts shall be liens in any county in the State wherein a transcript thereof shall be filed. Apparently this section is one making provision for a lien broader in territorial application than the *Page 443 lien attaching upon mere rendition of the judgment. It apparently has no reference to the latter sort of lien.
It required no action upon the part of the Missouri Legislature to give a lien to a judgment of the Federal District Court. That is the exclusive prerogative of Congress. Therefore, our Legislature, in enacting Section 1554, undertook to do nothing more than to put Federal court judgments upon an equality with State court judgments by authorizing the filing of transcripts thereof in any county of the State and providing for a lien therein upon such filing.
Section 1554 is the conformity statute of Missouri without the enactment of which the Act of Congress of 1888 would have no application whatever to Federal court judgments rendered in this State. If that section be construed by us as requiring the filing of a transcript of a Federal court judgment in the office of the clerk of the circuit court of the county wherein such Federal court judgment is rendered, then Missouri has passed no adequate conformity law and the judgment of appellant must be held to be a lien throughout the territorial jurisdiction of the Federal district court which rendered it, including Jasper County (Lineker v. Dillon, supra; Dermott v. Carter, 109 Mo. 21), and respondent's case is not helped in the least, because a sale under execution upon appellant's judgment gave appellant good title to the real estate under either view.
In my opinion, the judgment below should be reversed with directions to the trial court to set aside its judgment for defendant and to enter its judgment finding that, as against defendant, the plaintiff (appellant) is the owner of the real estate here involved and that defendant has no right, title or interest therein and ejecting defendant therefrom, with judgment in plaintiff's favor for the agreed rents and profits. Atwood,J., concurs herein. *Page 444