John Marshall

“ If in a real action, where the land itself is recovered, and the demandant suffers the year to elapse without execution, the purchaser is protected; the reason is much stronger where money only is recovered, and other executions may issue than those which affect the land.
The reason of the doctrine in the case of Eppes vs. Randolph, requiring either the actual issuing of an elegit within the year, or the entry on the record book of an election to do so, is rendered manifest by seeing the beneficial results which flow from it. ”

“ The decision in the first case proceeds on the ground, that the judgment creditor shall not, by indulgence to the defendant, save his property from other creditors; so he ought not to be allowed to grant that indulgence by a delay which deceives purchasers and indeed involves them in loss. He ought not to be allowed to retain a more general lien produced by judgment, when he extends to the defendant an indulgence; which, in case of a specific lien produced by the actual levy of the fieri facias, would be sufficient to divest it, and subject the property to other executions. ”

“ A fieri facias was issued on the second judgment, the return on which was, that the costs were made, and all further proceedings suspended by order of the agent of the treasury department. The conveyances under which the defendants claim were dated in February and March 1823. The United States contend that the judgment of April 1822 created a lien on these lands which overreaches these conveyances.
There is no statute in Virginia which, in express terms, makes a judgment a lien upon the lands of the debtor. As in England, the lien is the consequence of a right to take out an elegit. ”

“ In the circuit court, the United States filed a bill the object of which was to make certain real property, assigned on the 22d of October 1823 by John Morrison to Robert G. Ward, subject to a judgment obtained in their favour in the western district of Virginia, in October 1819. The assignment made by Morrison to Ward was general, of all his property, in trust for the payment of his debts to sundry persons. ”

“ It is confidently believed that no such case can be found. And it is understood that the circuit court concurred in the principle; but rested its decision on two grounds. 1. That the elegit would not overreach the title of an incumbrancer or purchaser, unless at the time that the conveyance was made to the incumbrancer or purchaser, the judgment creditor could sue out an elegit; and 2. That after a partial levy of a fieri facias, an elegit could not be sued out until another fieri facias was sued out, and a return of nulla bona had thereon. ”

“ Randolph were referred to, and not overruled, but distinguished from them. Such a decision as is supposed, would be against the justice of the case; against the settled rules in Eppes vs. Randolph, and against the opinion of this court in Conard vs. The Atlantic Insurance Company, 1 Peters, 443. ”