the judgment debtor. The defendant Lewis contends that, as was the case under our former system, the lien when it attaches relates back to the day when the judgment was docketed. This is denied by the other defendants. It is conceded that the liens of the several judgments, on after-acquired lands, attach eo instanti, and at the moment when the title vests in the judgment debtor; also that the lien of each judgment attaches at the time it is docketed on all lands then owned by the debtor. It will be observed that those liens arise from the docketing and priorities accordingly are established and not by any principle of relation. Neither the court nor counsel have been able to find any decided case on this question in any of the states, except one in Oregon which will be referred to later. We are, therefore, to construe our statute (Code, sec. 435) according to its meaning and on general principles of reasoning. At common law, no judgment, proprio vigore, was a lien upon land. Under our former system, when an execution issued and was levied upon land, the lien thereby acquired related to the teste of the execution, not by reason of any self-executing force in the fieri facias or the judgment proper, but by force of a statute (West, 2), which was enacted expressly to give the lien created by the levy a relation to the teste of the writ. The relation was not given upon any idea of rewarding the diligent creditor, but to take from the debtor the power to transfer his property to others and thus deprive the creditor of the fruit of his recovery. This reason does not now exist under our system, because the docketed judgment fixes the lien and the debtor cannot escape it, and, if he sells thereafter, the purchaser takes subject to the statutory lien of our code, and the principle of relation is not 90 necessary to protect the creditor. Cessante ratione cessat ipsa lex. Whilst this question was not presented in Sawyers v. Sawyers, 93 N. C. 321, this court remarked: "This statutory legislation (Code, sec. 435) must therefore, to no inconsiderable extent, dispense with many rules before in force, and especially that of relation of the execution to its teste, as unnecessary and inapplicable to the new procedure and practice." We must then look to the act itself for its true intent. The code nowhere directly or indirectly enacts the doctrine of relation, except in section 433, which declares that all judgments rendered in the superior court, and docketed within ten days after the term, "shall be held and deemed to have been rendered and docketed on the first day of said term." So the legislature did advert to the doctrine of relation, but failed to declare that it should prevail, except in said section 433, and its silence in all other sections af AM ST. REP., VOL. LIII.-37 fords a fair inference that it did not intend that it should prevail in section 435. Expressio unius exclusio alterius. Assuming that the legislature had power to give the lien a retroactive effect, as was done by Westminster 2, yet it has not done so, and it would be some strain on the legal mind to say that a docketed judgment, even in effect, was a lien upon land during a period when the judgment debtor had no land. A lien cannot antedate its origin without statutory aid. There seems to be no reason why priority should be allowed when the title to the land and the several liens occur at the same moment. There is no equitable ground on which to place it, because one judgment debt, in the eye of the law, is as just as any other, and there is no natural justice in the proposition. The court in Creighton v. Leeds, 9 Or. 215, under a similar statute and in a like case, held that the first docketed judgment had priority over the other judgments 91 on after-acquired lands, and this is the only case yet found. The reasoning in that case is not satisfactory. It is put: 1. On the ground that such is the meaning of the statute; 2. That the debtor has an inchoate interest in his future acquisitions on which the judgment acts and is a lien, and likens it to the inchoate interest of a married woman in the future acquired lands of her husband during coverture. We fail to see any similarity. The proposition loses sight of the true reason why dower was allowed in such lands. It is true that the marriage contract is the initial point of her rights, but the reason is the "sustenance of the wife, and the nurture and education of the younger children," and it was extended to future acquired lands in order to prevent the husband from defeating the object of the rule, which has no application to the code, section 435, as to judgments docketed before the estate falls in. The authorities quoted in the Oregon case do not support the conclusion, and are cited only to call attention to some supposed analogies under the former system. The contention in Kollock v. Jackson, 5 Ga. 153, was not between judgment creditors, but between a judgment and a factor's lien for goods and advances made to raise a crop, which factor's lien arose subsequent to the rendition of the judgment, and it was held that the judgment had preference because of their act of assembly of 1799 which declared that "all property of the party against whom a verdict shall be entered shall be bound from the signing of the first judgment." This decision does not fit the present question. Our conclusion is, that the proceeds of the land should be applied to the judgments pro rata. Affirmed. MR. JUSTICE CLARK dissented, and contended that "the distinction must be clearly kept in mind between the lien, which is the right accruing as between the judgment creditor and debtor, to subject the property to the payment of his debt, and the priority in the application of the proceeds of a sale, under execution, which is the apportionment of the rights of judgment creditors among themselves. The manner of acquiring the lien as to real estate has been changed by statute. The apportionment of the proceeds of sale according to priority has never been affected by statute, and, as the courts possess no legislative power, the law as to priorities among execution and judgment creditors necessarily remains as it has been uniformly recognized for an uncounted number of years. . . The code, section 435, provides that the docketing a judgment shall make it a lien on the real property, in the county where the same is docketed, of every person against whom any such judgment shall be rendered, and which he may have at the time of the docketing thereof in the county in which such real property is situated, or which he shall acquire at any time thereafter, for ten years, from the date of the rendition of the judgment.' It will be noted that this statute only changes the mode of acquiring liens against the debtor's realty, and does not purport to change the long settled and wellrecognized principle that though the liens may have been acquired, eo instanti, by a levy of several executions at once (or, as in this case, by the acquisition of property subsequent to docketing of the judgments), the priority among the creditors, in the application of the proceeds, goes to the oldest judgments in the order of their seniority. As the statute has not changed this, the courts have no power to do so. This section (Code, sec. 435) merely does away with the necessity and useless expense of issuing execution from each successive term by making the docketing a lien on all the judgment debtor's realty which he has, or may subsequently acquire, for ten years in the county where such judgment is docketed: Sawyer v. Sawyer, 93 N. C. 321. The statute gives no indication of a disposition to put the diligent creditors, who hold the oldest judgments, in any worse condition than formerly. This statute (Code, sec. 435) was indeed for their ease, by relieving them of the necessity of issuing a chain of successive executions to maintain their priority, and it is accordingly careful to make such judgments a lien also on all real property which the judgment debtor shall thereafter acquire. This view is sustained by a well-considered opinion in Creighton v. Leeds, 9 Or. 215; Kollock v. Jackson, 5 Ga. 153; 8 Am. & Eng. Ency. of Law, 988; Titman v. Rhyne, 89 N. C. 64-67. Mr. Justice Avery concurred in the dissenting opinion. LANDS.-Judgments are JUDGMENTS-AFTER-ACQUIRED generally regarded as binding by lien realty acquired by the judgment debtor after the docketing of the judgments. There is no priority between the liens of judgments rendered before the acquisition of the property by the debtor, for, as all attach at the same time, they must stand on the same footing, though the judgments may have been recovered at different times: Extended note to Filley V. Duncan, 93 Am. Dec. 357. STATE V. ELLINGTON. [117 NORTH CAROLINA, 158.] QUO WARRANTO-RIGHT TO RECOVER OFFICE.-In an action of quo warranto to recover an office, the right of plaintiff to recover depends upon his right and title to the office, and not upon the want of such right in another. ELECTION-EVIDENCE OF.-A person claiming to have been elected to an office by the state legislature may introduce in evidence the record of such legislature for the purpose of proving his election and right to the office he is claiming. PARLIAMENTARY LAW-QUORUM - PRESUMPTION.-It being shown that there was a quorum of a legislative body present in the morning, and it not appearing that there had been an adjournment, it is presumed that there continued to be a quorum present when certain proceedings were had that day. PARLIAMENTARY LAW-QUORUM – PRESUMPTION.—If the records of a legislative body show that less than a quorum of its members were present when the roll was called and a vote taken, the presumption that a quorum shown to be present earlier in the day continued present when such vote was taken is overcome. PARLIAMENTARY LAW-QUORUM.-Although a quorum of a body is actually present at the time a vote is taken, the presiding officer is powerless to make the members vote, or to count those not voting for the purpose of making up a quorum, in the absence of a rule or express authority to that effect. PARLIAMENTARY LAW.-A QUORUM OF A LEGISLATIVE BODY is a majority of all the members thereof, in the absence of constitutional provision or rule prescribed by the power creating the body. T. R. Purnell and MacRae & Day, for the appellant. E. W. Pou and Shepherd & Busbee, for the appellee. 159 FURCHES, J. This is an action in the nature of quo warranto, in which plaintiff claims to be state librarian, and alleges that defendant is in possession of the office and unlawfully withholds the same from him. Defendant, answering, admits that he is in possession of the office, performing its duties and receiving its emoluments; but he denies that he is holding it wrongfully or unlawfully, and alleges that he was duly elected thereto on the eighth day of January, 1895, for a term of two years next ensuing. Under the view we take of the case, it is not necessary for us to consider or pass upon defendant's right to this office. The plaintiff's right to recover depends upon his right to the office. If he is not entitled to it, it is a matter of no importance to him who is. It is true that if 160 plaintiff is entitled to the office, it necessarily follows that defendant is not; but it does not necessarily follow that defendant is entitled to it, if plaintiff is not. Prior to the thirteenth day of March, 1895, the board of trus tees of the state library, under existing law elected to and filled this office. On that day (March 13, 1895) the legislature passed and ratified an act repealing the law authorizing the board of trustees to elect, and provided for the election of this officer by the legislature. And on the same day, to wit, the thirteenth day of March, 1895, the plaintiff claims that he was duly elected state librarian by the legislature pursuant to said act. And this not being a bill enacted into a law, ratified and signed by the presiding officers of senate and house, and deposited in the office of secretary of state, which then becomes the evidence of its passage (Carr v. Coke, 116 N. C. 223; 47 Am. St. Rep. 801; United States v. Ballin, 144 U. S. 4) it becomes necessary for plaintiff to introduce the record of the legislature for the purpose of proving his election and right to the office he was claiming. These records show that, on the morning of the 13th of March, there was a rollcall of the house, a quorum answered, and the house proceeded to business. They also show that there was a proposition in both branches of the assembly (senate and house) to go into the election of state librarian; that these motions prevailed, and both the president of the senate and the speaker of the house appointed two tellers each to take this vote. And they reported that in the senate there were twentysix votes cast, twenty-five being for the plaintiff, and one against; and in the house there were forty-eight votes cast for the plaintiff, and none against him. It is admitted by plaintiff that there must be a quorum present to do business, or, in this case, to elect the plaintiff to the office he claims. But he claims that, it appearing there was a quorum present that morning, 161 and it not appearing there had been an adjournment since, it will be presumed that there continued to be a quorum present. We think this is undoubtedly true, that the quorum will be presumed until it shall appear there is not one: Cushing on Elections, 2d ed., 369. This is usually made to appear by what is called a division; and this is usually had after a vote by yeas and nays, when the presiding officer announces the votes and some opposing member doubts the correctness of the announcement and demands a division-a call of the body: Cushing's Law of Legislative Assemblies, sec. 1798. And, strictly speaking, this is what is called a division: Cushing's Law of Legislative Assemblies, sec. 1814. The original purpose of a division was for the purpose of ascertaining who voted "aye" and who voted "no," and it was effected in this way: the ayes occupied one part of the hall and the noes another, and there remained until the tellers ap |