Wilson v. Benton.

1878, during his official term, was good, the collector and his sureties being liable therefor: Otis v. Boyd, 8 Lea, 679.

The act itself, as we have seen, is entitled "An act for the more rigid collection of the revenue." All of its provisions are directed to the end of securing the assessment and collection of property which has been omitted from the regular assessment. To this end, it prescribes the mode of procedure by which the assessment shall be secured and the collection made, increasing for this specific purpose the jurisdiction of justices of the peace. The details of the act are all included in the subject of the caption. The caption is general, but that is no objection to it, so long as it is not made a cover to legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection. The Legislature must determine for itself how broad and comprehensive shall be the object of a statute, and how much particularity shall be employed in the title in defining it: Cooley Const. Lim., 176; Woodson v. Murdock, 22 Wall., 351; State ex rel. v. Whitworth, 8 Lea, 594. There is no error in the judgment, and it will

be affirmed.

Mann v. Roberts.

HIRAM MANN v. A. W. ROBERTS.

LIEN. Execution. Lis pendens. Lost, when. The lien on land of the levy of a justice's execution, and the lis pendens created by the filing of the papers in the circuit court for the condemnation of the land, the order of condemnation, and the supersedeas of the venditioni exponas thereon by the debtor, will be lost by a failure to prosecute the suit for nearly five years, as against an innocent purchaser for value and without notice, who bought the land from the debtor about three years and six months after the commencement of the period of neglect, and the greater part of whose purchase money had been used to pay off other encumbrances.

FROM HAYWOOD.

Appeal from the Chancery Court at Brownsville. H. J. LIVINGSTON, Ch.

A. C. ESTES for complainants.

E. J. & J. C. READ and MCCORRY & BOND for defendant.

COOPER, J., delivered the opinion of the court.

Bill to enjoin further proceedings under an order of the circuit court condemning to sale a house and lot in Brownsville under the levy of a justice's execution, upon the ground that the lien had been lost by laches, the complainant being an innocent purchaser from the judgment debtor. The chancellor granted the relief sought, and the defendant appealed.

On February 1, 1873, the defendant, Roberts, re

11L 57 2pi 307

Mann v. Roberts.

covered a judgment before a justice of the peace against Thomas Bond for $312.87 and costs, which judgment was stayed by H. T. Grant. On October 31, 1873, an execution issued on the judgment, and was levied upon the lot in controversy as the property of Grant, he then owning and residing upon it. At the October term, 1873, of the circuit court the papers were returned to that court, and the land condemned and ordered to be sold. On February 7, 1874, Grant, by petition filed for the purpose, superseded the execution of the order of sale, upon the ground that Bond, the principal debtor, had property in the county at the time of the levy on petitioner's land, subject to execution and unencumbered, more than sufficient to satisfy the judgment. On March 19, 1874, the motion of Roberts to dimiss the petition and discharge the supersedeas was refused, an entry to that effect being made on the minutes of the court in the cause under the style of A. W. Roberts v. Thomas Bond and H. T. Grant. From that time no step was taken in the cause until the October term, 1877, when there is an entry on the minutes that the cause was continued by consent. Up to this time, the cause had been permitted to slumber on the reference docket, which docket, the proof shows, was not called during that period. Afterwards, the memoranda of the cir cuit judge on the trial docket show either that nothing was done, or continuances by consent, until the February term, 1879. At this term, the minutes. show a continuance as on affidavit of the defendant. At the June term, 1879, the cause was tried, the

Mann. Roberts.

supersedeas discharged, and a venditioni exponas ordered to issue upon the order of condemnation of the October term, 1873. At the October term, 1879, it was suggested to the court that Grant was dead, and that he had previously sold and conveyed the land to Hiram Mann, whereupon a scire facias was ordered to issue to Mann requiring him to show cause why the suit of A. W. Roberts v. Thomas Bond and H. T. Grant should not be revived against him. This bill was

then filed.

On August 7, 1877, Grant, then in the actual occupancy of the land, sold and conveyed it to the complainant for $2,500 in cash, all of which was paid, and the greater part of which was used in removing encumbrances, in the shape of judgments, mortgages and tax sales, then existing on the land. The proof leaves no doubt that the complainant was an innocent purchaser of the land for its full value, without notice of the defendant's judgment, the levy of the execution thereon, or the subsequent proceedings in the circuit court until served with the scire facias on, December 19, 1879. The complainant went into possession of the land at the time of his purchase, and has since continued to occupy it.

An order of condemnation of land upon the levy of a justice's execution is not a judgment, but only a mode of executing the levy: Ashworth v. Demier, 1 Baxt., 323; Overton v. Perkins, M. & Y., 367. It is not notice to third persons, nor would it be if a judgment, the notice implied from a pending litigation ceasing with its determination: Worsley v. Earl of

Mann v. Roberts.

Scarborough, 3 Atk., 392; Dudley v. Witter, 46 Ala., 664. An order of condemnation gives no lien, but merely continues the lien of the levy, to which the title of the purchaser under the sale would relate.

The only proper use of an execution is to enforce the collection of a debt, and to enforce it, so far as the rights of third persons are concerned, with reasonable diligence. The creditor cannot use it merely as a security for his debt by a levy on property, for the lien thus created is a secret lien, and may operate to the prejudice of innocent third persons if the debtor be left in possession of the property : Freem. on Ex., sec. 206. The lien may be lost by inaction. or negligence in not properly and promptly pursuing it: Etheredge v. Edwards, 1 Swan, 429; Snell v. Allen, 1 Swan, 208. Adelay of seventeen months in one case, and of three years in another, has been held sufficient to deprive a creditor of a priority of lien by levy Owens v. Patterson, 6 B. Mon., 489; Deposit Bank v. Berry, 2 Bush., 236. And this court has held that the lien of a levy on land of a justice's execution may may be lost, be lost, as against an intermediate. innocent purchaser, by a purchaser, by a failure to file the papers in the circuit court for condemnation in a reasonable time: Anderson v. Talbot, 1 Heis., 407; Zook v. Smith, 6 Baxt., 213. These cases also hold that the proceedings of condemnation become a lis pendens from the date of such filing. And the effect of the lis pendens

in this case is thus raised.

The doctrine of lis pendens, by which a bona fide purchaser without notice is held bound by the result