Beebe v. United States
161 U.S. 104 (1896)

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U.S. Supreme Court

Beebe v. United States, 161 U.S. 104 (1896)

Beebe v. United States

No. 71

Argued November 18, 1895

Decided March 2, 1896

161 U.S. 104

Syllabus

In Alabama, a judgment in itself imposes no lien upon the property of the judgment debtor, but the issue of an execution and its delivery to the officer are necessary to create a lien.

According to the settled rule in Alabama, when an execution comes to the hands of the sheriff, the lien attaches and continues from term to term, provided alias and pluries writs are duly issued and delivered, and while it is so kept alive, the lien is, upon levy and sale, paramount to any intermediate conveyance by the debtor, and as in this case the facts show that valid executions were issued and delivered to the marshal as early as January 23, 1877, and on return alias executions were duly issued and duly levied, the subsequent sale related back to the original issue, and took the legal title out of the plaintiff in error prior to his deed of March 22, 1877.

When it appears by a memorandum on judgment records that "by consent, execution is stayed until" a date named, and execution issues before that date, it will be presumed, nothing appearing to the contrary, that it was rightly issued, and that either the agreement lacked consideration, or was not authorized, or had been by mutual assent annulled, or that the terms of the agreement had not been complied with by defendant.

This was an action "in the nature of ejectment," as so denominated in the Alabama Code, brought by the United States against Eugene Beebe, Sims Phillips, and Adeline Thomas, for the recovery of an undivided one-fourth interest in a tract of land known as the "Montgomery Race Track," containing eighty acres, in the Circuit Court of the United States for the Middle District of Alabama. Beebe defended as landlord, and Phillips and Thomas were his tenants. Trial was had, a verdict rendered for plaintiffs, and judgment entered thereon accordingly. On the trial, plaintiffs put in evidence a deed executed by Josiah Morris and wife, June 14, 1873, to Eugene Beebe and Ferrie Henshaw, of an undivided one-half of the eighty acres in question, of which, it was admitted, Morris was seised and possessed at that date. The records

Page 161 U. S. 105

of two separate judgments recovered in favor of the United States against Beebe and others, December 19, 1876 at the regular November term, 1876, of the Circuit Court of the United States for the Middle district of Alabama, for the sums, respectively, of $991 and $1,638.68, were put in evidence. The consideratum clause in each instance concluded, "for which let execution issue." Above the record of each judgment appeared the amount thereof in figures, followed by the words: "Stay of ex. till 25th March, 1877. R." And at the foot of each judgment were these words: "And, by consent, execution is stayed until the 25th day of March, A.D. 1877."

Two alias executions issued on said judgments May 10, 1877, "with the endorsements thereon," were put in evidence. They ran in one of the forms of an alias writ, "Again you are hereby commanded," and were entitled on the back, "Alias Fi. Fa." Each had endorsed upon it (in almost verbally identical words) the following:

"Received in office January 23d 1877"

"Geo. Turner, U.S. Marshal"

"To satisfy the within execution, I have levied, this 5th day of April, 1877, on an undivided half interest in the following described property, to-wit:"

"* * * *"

"2d. The tract of land known as 'Montgomery Race Track,' near Montgomery, containing eighty acres, more or less."

"* * * *"

"Notice in writing given the defendant."

"Geo. Turner, U.S. Marshal"

"Returned for alias; not advertised and sold, for want of time. April 6th, 1877."

"Geo. Turner, U.S. Marshal"

"P'r F. Jost, Dep."

Below these endorsements, on each writ, the clerk of the court certified, under his hand and seal, May 10, A.D. 1877,

Page 161 U. S. 106

"The foregoing page to contain a true copy of the return of the marshal on the execution issued next last preceding this in the aforesaid cause, as the same appears of record and on file in my office as clerk of said court.\"

There was also endorsed on each writ, "Received in office May 10th, 1877," and a levy, May 10, 1877, which included said tract of land.

On the execution for $1,638.68 appeared this return:

"The property of the defendant Beebe, herein described [certain property being named as excepted], was on the second day of July, 1877, sold to the United States for one thousand dollars, and deed made to the United States for the same. George Turner, U.S. Marshal."

Plaintiffs then introduced in evidence a deed of the United States marshal to the United States, dated July 2, 1877, and duly acknowledged and recorded, reciting the levy of execution on the property, and the sale thereof on that date, after due advertisement, to the United States, as the highest and best bidder, and conveying all Beebe's interest in the tract.

Defendants offered in evidence a deed from Beebe to Henshaw, dated March 22 and acknowledged and recorded March 23, 1877. This instrument recited that a copartnership had existed between Beebe and Henshaw under the name of E. Beebe & Co.; that Beebe would be found, on a settlement of the affairs of the firm, to be indebted to it and also to Henshaw for moneys advanced and paid out by him in excess of his proportion as partner, the precise amount of which could not be ascertained until the debts of the firm were paid and a settlement had between Beebe and Henshaw; that Beebe and Henshaw were owners, as partners, of real and personal property, which was enumerated, and included an undivided half interest in a tract of land called the "Old Montgomery Race Track," and therefore, "to protect and secure" the creditors of the firm, and to enable Henshaw "the more easily and readily" to settle and pay its debts, and "to protect and secure" Henshaw for moneys paid out and advanced for the firm in excess of his proportion, and "to protect and secure him" for all moneys that Beebe might owe the firm or Henshaw

Page 161 U. S. 107

on a settlement between them of the firm's affairs, Beebe conveyed all his interest in the property described, as partner or otherwise, to Henshaw

"in trust, to sell the same at such times and places, and on such terms, for credit or for cash, or for part cash and part credit, and at private or public sale, as the best interests of the said creditors of said firm, and of him and myself, as he may determine, and to apply the proceeds thereof to the payment of the debts of the said firm, and to the payment of what I may be found indebted to said firm, or to said Ferrie Henshaw, on the settlement between us of the affairs and business of said firm, and if any excess should remain in his hands from the sale of said property, after the payment of said debts of said firm, and of what I may owe the said firm, or owe him, on the said settlement of the business and affairs of said firm, then he shall pay back to me such excess; and, if there should remain in his hands any of said property not required to be sold for the purposes aforesaid, then, on such final settlement between us, he shall reconvey the same to me, my heirs or assigns."

Plaintiffs objected to the introduction of this deed in evidence on the grounds, among others, that it "is void upon its face" and that it "sets up no claim superior to the title of the United States acquired at the execution sale." Beebe was then sworn as a witness, and defendants proposed to prove by him that, at the time of the execution of the deed offered in evidence, Beebe and Henshaw were in copartnership; that at that date, the partnership was indebted to various persons in amounts aggregating $40,000, and Beebe was indebted to Henshaw about $2,000 individually, and also about the same sum on account of partnership matters; that the property was purchased while Beebe and Henshaw were partners, and was purchased with partnership assets; that the deed had been delivered to and accepted by Henshaw. But defendants admitted that Henshaw had never sold any of the property conveyed by the deed, and that nothing had been done thereunder. The court sustained plaintiffs' objection to the introduction of the deed and refused to allow the same to be read in evidence, and defendants excepted.

Page 161 U. S. 108

Thereupon plaintiffs offered in evidence a deed by Henshaw to Beebe, dated February 23, 1878, which recited that the debts and business affairs of the partnership had been fully settled, without the necessity of having to sell any of the property for that purpose, and therefore Henshaw reconveyed to Beebe an undivided one-half interest in and to the property. In that connection defendants "proved" (offered to prove) that after March 22, 1877, Henshaw became incapable of attending to business, and that thereupon Beebe procured Henshaw to execute the deed of February 23, 1878, at which time the debts and business affairs of the partnership had not in fact been settled and paid.

The court instructed the jury that "if they believed the evidence, the plaintiff was entitled to recover the land sued for in the complaint filed in this cause."

The following errors were assigned:

"(1) The rejection of the deed executed by the plaintiff in error Eugene Beebe to Ferrie Henshaw on the 22d day of March, 1877, offered in evidence by the plaintiffs in error, conveying to said Henshaw the property involved in this cause."

"(2) The rejection of said deed offered in evidence by the plaintiffs in error, in connection with the facts the plaintiffs in error proposed to prove by the testimony of the said Eugene Beebe."

"(3) The rejection of the testimony of said Eugene Beebe, offered by the plaintiffs in error in connection with said deed, and to support the same."

"(4) The charge of the court to the jury 'that if they believed the evidence, the plaintiff was entitled to recover the land sued for in this cause.'"

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