Davis, et al. v. Helm. Although there is much prolixity and incongruity in the record, as made out in this case, yet it is conceived there are but two principal questions which require especial consideration. 1st. Under our peculiar statutory provisions, respecting the lien of judgments, was it necessary, after Moore's death, and after the execution, then in the sheriff's hands, had been returned without a levy, to run a scire facias against his personal representatives, to have execution against the intestate's property in their hands? 2dly. Is it competent to prove by parol, upon a mere motion, that the sheriff levied an execution on property, when he has returned it not levied ? In answer to the first of these questions, we conceive it to be a settled principle, that where a lien is given by an express statutory provision, as by a judgment at law upon the property of a defendant, upon entering up the judgment in Court, the lien thereby created becomes a permanent right in the judgment-creditor, and being "continuous," will remain unimpaired, unless it be postponed by some act of the plaintiff. If this position be true, we apprehend it will not be a difficult task to show, that, where a judgment has been entered up in the lifetime of a defendant, in this State, and execution has issued on it, and he dies, alias executions may issue after his death, and proceed to satisfaction without a scire facias. By our statute, How. & Hutch. Dig. 621, s. 43, it is declared, "that in all cases the property of the defendant shall be bound and liable from the time of entering up the judgment." This express provision of the statute, we conceive, gives the judgment-creditor an undoubted right to be satisfied of his judgment out of the defendant's property, without regard to any event that may occur respecting the person of the defendant. The statute refers to the property, and not to the person of the defendant; and it is an established principle, both at law and in equity, that the death of a party, even in cases of ordinary liens, will not affect such liens, if they have fully attached in the lifetime of the party. 2 East's Rep. 227, (In arguendo, 10 Peter's Rep. 607, 603;) 1 Swans. Ch. Rep. 84; Montague on Lien, 61. By the Common Law, the property of the defendant was bound from the test of the writ of execution, and if an execution on the Davis, et al. v. Helm. judgment could be tested in the lifetime of the defendant, no scire facias was necessary; the plaintiff could proceed to satisfaction in the same manner as if he were living. 6 Bac. Abr. Sci. Fa. c. 4; 1 Mod. Rep. 188; 1 Bos. & Pul. Rep. 571; 7 Term Rep. 22, n. (c); 2 Arch. Prac. 92. This proceeds upon the ground, that the property of the defendant was bound and liable from the test of the writ, which being tested in the defendant's lifetime, created and fixed a lien upon it sufficient to satisfy the debt, and thereby, by operation of law, secured the property to the creditor for the satisfaction of his judgment; and that the execution was merely an order of the Court directed to the sheriff, commanding him to consummate the right thus created and fixed by law in the lifetime of the defendant. 10 Wend. Rep. 211, 212. This is the principle of the Common Law in reference to the question under consideration. By the English statute of 29 Charles 2d, c. 3, s. 16, the Common Law was changed, so far as to make the property of the defendant bound and liable from the time of the delivery of the execution to the sheriff; and under that statute it is settled, that, after the delivery of the execution to the sheriff, if the defendant dies, the proceedings will go on in the same manner as if he were living, provided the execution be tested in his lifetime. And under a similar statute (indeed it is said to be substantially the same as the English statute of 29 Ch. 2d), the Supreme Court of Alabama, after much deliberation, decided, that if an execution was issued and delivered to the sheriff in the defendant's lifetime, and was regularly returned, the plaintiff could issue alias executions after his death, and proceed to satisfaction in the same manner as if he were living, without a scire facias, or other proceeding. Collingsworth v. Horn, 4 Stew. & Porter's Rep. 237, 244 to 251. This decision is based upon the ground, that the lien created by the delivery of the execution to the sheriff in the lifetime of the defendant is continuous, and, not being interrupted by any act of the plaintiff, remains perfect until the judgment is satisfied. See also 3 Dessaus. Rep. 539. And we think it is clear, that no act of the defendant can affect the judgment lien of the plaintiff on his property. A supersedeas, or injunction, obtained by the defendant, will not Davis, et al. v. Helm. affect the lien. 2 Burr. Rep. 660; 1 Salk. Rep. 323, n. (a); Smith v. Everly, 4 How. Rep. 185. Thus, then, we are brought to the conclusion, that if the defendant's property is made liable, and a lien is fixed upon it by express law in his lifetime, which is continuous (unless displaced by some act of the plaintiff), a judgment entered up, and execution issued upon it in the lifetime of the defendant, may proceed to satisfaction after his death, in the same manner as if he were alive; that it may be levied on his goods and chattels in the hands of his executor or administrator, without a scire facias. 7 Term Rep. 22, n. (c) ; 1 Bos. & Pul. Rep. 571; French v. Earl of Chelsea, 3 P. Wms. Rep. 399, n. (e); Collingsworth v. Horn, 4 Stew. & Porter's Rep. 237 (quotia supra). Again, there is a decision made by the Supreme Court of the United States, under a statute of the State of Missouri, giving a lien by judgment precisely similar in principle to our act of 1824 ; and in delivering the opinion of the Supreme Court in that case, Chief Justice Marshall says: "There is no expression in the law of Missouri which can suggest a doubt on this subject. By that law, judgments are to be a lien on all the lands of the debtor. This lien commences with the judgment, and continues for five years. The principle is believed to be universal, that a prior lien gives a prior claim, which is entitled to prior satisfaction out of the subject it binds, unless the lien be intrinsically defective, or be displaced by some act of the party holding it, which shall postpone him in a court of law or equity. The single circumstance of not proceeding on it until a subsequent lien has been obtained and carried into execution, has never been considered such an act." Rankin & Schatzell v. Scott, 12 Wheat. Rep. 178, 179. It is also laid down in the same case, that "A statutory lien is as binding as a mortgage, and has the same capacity to hold the property, so long as the statute preserves it in force." Ibid. 179. By the statute of Missouri, under which this decision was made, the lien is declared to continue for five years. Ibid. 78. By our law, the lien will continue during the continuance of the judgment, which is twenty years. (See Rev. Code, p. 185, s. 9.) And further, our act of 1824 creates a lien, by entering up the judgment upon all the pro Davis, et al. v. Helm. perty of the defendant, both lands and personalty. We therefore think, that, where judgment is entered up under this act of 1824 against a defendant, and execution is issued on such judgment in his lifetime, and he dies, and it is returned without satisfaction, alias executions may issue, and may be levied on the intestate's goods and chattels in the hands of his personal representatives, without a scire facias. Although the converse of this position is contended for with much apparent earnestness on the other side, yet they do not adduce any authority to support them, except a mere dictum of this Court in the case of Smith & Montgomery v. Winston & Lawrence, 2 How. Rep. 604, which we think altogether inapplicable to the case at bar, and two or three cases decided by the late Supreme Court of this State, very imperfectly reported in Walker's Reports. We shall only notice one of these cases particularly, to wit, that of O. C. Williams v. Hubert & Hubert, p. 174; and we think it will be seen, upon a very slight examination of that case, and the authorities therein cited by the learned Judge who delivered the opinion, that he is not sustained by the authorities he quotes, but that the very reverse of the conclusion he comes to is established by those authorities. In delivering the opinion, he quotes the language of Lord Kenyon, in the case of Heapy v. Paris, 6 Term Rep. 369, where he says: "Execution issuing after a party is dead, and before revival, is irregular; and if we suffer such executions to stand, great injustice may be done to the rights of creditors; the moment a party is dead, the rights of his creditors are fixed. A judgment-debt is of a superior nature, and when docketed is to be paid before simple contract debts." Now we cannot perceive in what way this quotation from Lord Kenyon's opinion could be made to apply to the case that was then under consideration before the Supreme Court. case does not present a question of two creditors contending for precedence as to their claims, although it would seem that the learned Judge was laying down the general law in reference to the claims that might exist against a decedent at the time of his death, without taking into view the preference lien given by our statute in favor of the judgment-creditor; for, in his opinion, he further quotes the language of Lord Kenyon, in his opinion in the case referred to, where he says, "A judgment-debt is of a superior The Davis, et al. v. Helm. nature, and when docketed is to be paid before simple contract debts; the defendant's legal representatives could have no notice of the judgment, and might be paying debts of an inferior nature, which, upon suggestion of a devastavit, would render them liable, &c." But it would seem, however, that this learned Judge of our late Supreme Court, who has drawn so largely upon the opinion of Lord Kenyon, in the case of Heapy v. Paris, is not the first among the learned in the law who misconceived the true points decided in that case; for in the case of Bragner v. Langmead, 7 Term Rep. 20, where this case of Heapy v. Paris was quoted, and relied on as conclusive authority, in a case somewhat similar in principle to the case at bar, the counsel who argued the case fell into the same error, and in delivering the opinion of the Court, Lord Kenyon takes special occasion to re-examine and fully explain the decision in the case of Heapy v. Paris. He clearly draws the distinction between the two cases, and shows that the execution, in the case of Heapy v. Paris, which was moved to be quashed, was tested after the defendant's death, and consequently there was no lien which could be located in his lifetime, and that, therefore, the rules of law, as laid down in that case, were by no means inconsistent with the principles that must govern the decision in the case of Bragner v. Langmead, then before the Court. In the latter case, the execution was tested in the lifetime of the defendant, thereby fixing the lien on his property before his death; and in the argument of the counsel against the motion to set aside the execution, and, in the opinion of Lord Kenyon, it is clearly shown to be law, that if the lien on the defendant's property was fixed in his lifetime, and remained unimpaired, no scire facias would be necessary to have execution against his property in the hands of his executor; so we are constrained to believe, that the cases referred to in Walker's Reports, were decided under a misapprehension of the law, and cannot be regarded as authority in the present case. In reference to the second question, we conceive it to be a settled principle of law, that where the sheriff has made a return on process, parol testimony cannot be received to contradict or vary that return; that it becomes a matter of record, and proves itself, except where the sheriff, upon leave of the Court, may amend his return according |