United States v. Morrison
29 U.S. 124

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U.S. Supreme Court

United States v. Morrison, 29 U.S. 4 Pet. 124 124 (1830)

United States v. Morrison

29 U.S. (4 Pet.) 124

Syllabus

There is no statute in Virginia which expressly 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. During the existence of this, the lien is universally acknowledged. Different, opinions seem at different times to have been entertained of the effect of any suspension of this right.

Soon after this case was decided in the Circuit Court for the District of East Virginia, a case was decided in the Court of Appeals of the state, in which this question on the execution law of the State of Virginia was elaborately argued, and deliberately decided. That decision is that the right to take out an elegit is not suspended by suing out a writ of fieri facial, and consequently, that the lien of the judgment continues pending the proceedings on that writ. This Court, according to its uniform course, adopts the construction of the act which is made by the highest court of the state.

In the circuit court, the United States filed a bill the object of which was to make certain real property, assigned on 22 October, 1823 by John Morrison to Robert G. Ward, subject to a judgment obtained in their favor 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. The deed of trust referred to certain previous deeds of trust which Morrison had executed, conveying a large portion of the same property to secure particular debts. The previous deeds were all executed subsequent to the rendition of the judgment in favor of the United States in October, 1819, viz., on 14 February, 1823, 21 February, 1823, 9 March, 1823. Divers creditors of Morrison had issued their executions of fieri facias against the property of John Morrison, which had been duly levied upon the same, before the execution of the general assignment of October, 1823.

On the day the judgment was obtained by the United States, in 1819, a part of the same was enjoined and an execution

Page 29 U. S. 125

was issued for the remainder, which was levied on the property of Morrison and Roberts, and a forthcoming bond was given by John Morrison, Roberts and their sureties, and the debt not being paid, an execution was awarded against Morrison, Roberts and one of the sureties, and issued in April, 1822. While it was in the hands of the marshal, and before it was levied, the agent of the Treasury, at the instance of the defendants, instructed the marshal to forbear levying it, on condition of the defendants' paying the costs, and the costs being paid, the marshal did not make a levy, and made a return within the year 1822, that all further proceedings were suspended in pursuance of the said instructions. A second fieri facias was issued on 5 February, 1825, on which the marshal returned "no effects found, not conveyed by deed of trust."

In the bills filed by the United States, they asserted their claim to the payment of their judgment against Morrison in preference to all the other creditors, out of the property assigned to Ward, this claim extending over the property conveyed in the deeds executed prior to the assignment, and also to the proceeds of other real property levied on by executions issued by creditors. The claim was asserted upon two distinct grounds. 1. Upon the sixth-fifth section of the Act of Congress of 1799, ch. 128, which declares that in all cases of insolvency or where any estate in the hands of executors, administrators and assignees shall be insufficient to pay all the debts due from the deceased, the debt due to the United States, &c., shall be first satisfied, &c. 2. Upon the ground that their judgment against Morrison gave them a lien upon the land which, under the facts of the case, they allege was a subsisting one, to overreach the liens created by the deeds executed by Morrison.

The circuit court was of opinion that the deed of October, 1823, was a general assignment, and that the United States was entitled to priority out of the subject contained in that deed; that nothing was to be considered as effectually conveyed by that deed which had been embraced by the previous deeds, or levied upon by executions previous to that deed; that the United States had no claim, either by virtue

Page 29 U. S. 126

of their statutory priority or judgment, to the property contained in the previous deeds, and levied upon by the previous executions, except to any surpluses which might remain, and proceeded to decree in favor of the United States for the value of all the property in the deed of October, 1823, not embraced by the previous deeds and executions, there being no surplus, and dismissed their bill, so far as it asserted a claim to charge the property conveyed by said prior deeds, or covered by the executions.

From so much of the decree as dismissed their bill to the extent stated, the United States appealed to this Court.

Page 29 U. S. 135

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