Tayloe v. Thomson's Lessee
30 U.S. 358

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U.S. Supreme Court

Tayloe v. Thomson's Lessee, 30 U.S. 5 Pet. 358 358 (1831)

Tayloe v. Thomson's Lessee

30 U.S. (5 Pet.) 358

ERROR TO THE CIRCUIT COURT OF THE COUNTY

OF WASHINGTON IN THE DISTRICT OF COLUMBIA

Syllabus

It seems there is no act of assembly of Maryland which declares a judgment to be a lien on real estate before execution issued and levied. But by an Act of Parliament of 5 George II ch. 7, lands in the colonies are subject to execution as chattels in favor of British merchants. This statute has been adopted and in use in Maryland ever since its passage as the only one under which lands have been taken in execution and sold.

It is admitted that though this statute extends in terms only to executions in favor of British merchants, it has long received an equitable construction applying it to all judgment creditors, and that this construction has been uniform throughout the state.

As Congress has made no new law on this subject, the circuit court were bound to decide this case according to the law of Maryland, which does not consist merely of enactments of their own or the statutes of England in force or adopted by the legislature. The decisions of their courts, the settled and uniform practice and usage of the state in the practical operation of its provisions evidencing the judicial construction of its terms, are to be considered as a part of the statute, and as such furnish a rule for

the decisions of the federal courts. The statute and its interpretation form together a rule of title and property which must be the same in all courts. It is enough for this Court to know that by ancient, well established, and uniform usage, it has been acted on and considered as extending to all judgments in favor of any persons, and that sales under them have always been held and respected as valid.

Though the statute of 5 George II does not provide that a judgment shall be a lien from the time of its rendition, yet there is abundant evidence that it has always been so considered and acted on.

The plaintiff in a judgment has an undoubted right to an execution against the person and the personal or real property of the defendant; he has his election; but his adoption of any one does not preclude him from resorting to the other if he does not obtain satisfaction of the debt on the first execution. His remedies are cumulative and successive, which he may pursue until he reaches that point at which the law declares his debt satisfied.

A capias ad satisfaciendum executed does not extinguish the debt for which it issued. If the defendant escape or is discharged by operation of law, the judgment retains its lien, and may be enforced on the property of the defendant; the creditor may retake him if he escape or sue the sheriff.

We know of no rule of law which deprives the plaintiff in a judgment of one remedy by the pursuit of another or of all which the law gives him. The doctrine of election, if it exists in any case of a creditor, unless under the statutes of bankruptcy, has never been applied to a case of a defendant discharged under an insolvent act by operation of law.

The greatest effect which the law gives to a commitment on a capias ad satisfaciendum is a suspension of the other remedies during its continuance; whenever it terminates without the consent of the creditor, the plaintiff is restored to them as fully as if he had never made use of any.

Page 30 U. S. 359

The escape of the defendant by his breach of prison bounds could not effect the lien of the judgment; the plaintiff was not bound to resort to the prison bond as his only remedy; a judgment on it against the defendant was no bar to proceeding by fieri facias.

The 5th section of the act of Congress for the relief of insolvent debtors declares that no process against the real or personal property of the debtor shall have any effect or operation except process of execution and attachment in the nature of execution, which shall have been put into the hands of the marshal antecedent to the application. The application of this clause in the section was intended only for a case where one creditor sought to obtain a preference by process against the debtor's property after his application. In such case, the execution shall have no effect or operation, but where the encumbrance or lien had attached before the application, it had a priority of payment out of the assigned fund.

This was an ejectment brought by the defendant in error in the circuit court for the recovery of a lot of ground in the City of Washington. The defendant pleaded the general issue, and on the trial a verdict was given for the plaintiff below, subject to the opinion of the court on a case agreed, which is stated at large in the opinion of the Court.

Page 30 U. S. 364

MR. JUSTICE BALDWIN delivered the opinion of the Court.

In the court below this was an action of ejectment, brought by Thomson to recover possession of a lot in the City of Washington. It came up on a case stated by the parties, which contains all the facts on which the cause depends, and is as follows:

"In this case it is agreed that one Charles Glover was seized in fee of the messuage, &c., in dispute, on and before 15 May, 1815, and so continued seized until 4 January, 1819, when he bargained and sold the premises to the defendant, John Tayloe, as hereinafter mentioned; that on 15 June, 1818, Owen & Longstreth obtained two judgments at law against the said Glover, as endorser of two

Page 30 U. S. 365

promissory notes, passed to the said Owen & Longstreth, the one for $680.74, with interest from 15 February, 1817 till paid, and costs, the other for $674.20, with interest from 15 December, 1816 till paid, and costs, which judgments, by an arrangement between said Owen & Longstreth and the lessor of the plaintiff or the lessor of the plaintiff together with his partner Maris, trading under the firm of Thomson & Maris, were transferred, with other choses in action, by Owen & Longstreth to the lessor of the plaintiff, or to said Thomson & Maris, so as to place the proceeds of said judgments at the disposal of said Thomson or Thomson & Maris and make the same applicable to the security of said Thomson, or Thomson & Maris, against certain engagements entered into by him or them, for Owen & Longstreth, and were prosecuted for the benefit of said Thomson or Thomson & Maris."

"That ca. sas. were issued on said judgments on 10 May, 1820, returnable to June term, 1820, and duly served on said Glover, who was duly committed to the jail of the county aforesaid under the said execution. That he was thereupon admitted to the benefit of the prison rules, upon giving bonds and securities, pursuant to the act of Congress in such case provided. That the said Glover having broken the prison rules and the conditions of his said bonds, suits were brought upon the same against him and his security, returnable to October term, 1822, at the instance and for the benefit of the said assignee or assignees of the said judgments, and judgments were duly obtained in said suits against said Glover (but not prosecuted to judgment against his security, he having died, and no administration on his estate in this district), for the respective amounts of said original judgments, with interest and costs, at October term, 1823, upon which judgments so obtained against Glover, on said prison bounds bonds, fi. fas. were duly issued, returnable to December term, 1824, and then returned nulla bona. That at the same term of December, 1824, the attorney, upon the record of the said Owen & Longstreth, still acting at the instance and for the benefit of the said assignee or assignees of the said original judgments, moved the court to recommit the said Glover,

Page 30 U. S. 366

under the original ca. sas., issued on said judgments and before execution as aforesaid, the ground of which motion was that more than twelve months had expired since the said Glover had been admitted to the benefit of the prison rules as aforesaid, and that the act of Congress in such case provided had limited the benefit of such prison rules to the term of twelve months, upon which motion the said Glover was recommitted, by order of said court, under the said ca. sas. to the common jail aforesaid; where he remained, in virtue of his said recommitment, until 5 February, 1825, when he was duly discharged as an insolvent debtor pursuant to the act and acts of Congress for the relief of insolvent debtors within the District of Columbia, he, the said Glover, having in all things complied with the requisites of the said act to entitle him to such discharge."

"That after the said original judgments were rendered against the said Glover as aforesaid, to-wit on 4 January, 1819, he bargained and sold the said messuage, &c., now in dispute to the said John Tayloe in fee simple for and in consideration of the sum of _____, then and there duly paid to him by the said Tayloe, in fee, by a deed of bargain and sale duly executed, acknowledged, certified, and recorded according to law, by virtue of which bargain, sale, and sold premises, and Tayloe entered upon said bargained and sold premises, and ever since has held, possessed, and enjoyed the same."

"That no evidence is offered by plaintiff that at the time of the said bargain, sale, and conveyance and of the payment of the said purchase money to Glover, Tayloe had any actual notice of the said original judgments, or either of them -- that is, no other than the constructive notice arising from the records of said judgments. That after said Glover had been discharged as an insolvent debtor as aforesaid, fi. fas. were issued from the clerk's office on the said original judgments at the like instance, and for the like benefit of the said assignee or assignees of those judgments, returnable at May term, 1825; and were levied upon the said bargained and sold premises (besides other real property, which had been before sold and conveyed to other persons by said Glover) then in possession of and held by said Tayloe under his said purchase, and the said bargained and sold premises were afterwards exposed to

Page 30 U. S. 367

sale by the marshal under said executions and purchased by the lessor of the plaintiff, to whom they were conveyed by the said marshal by a deed in the usual form, duly executed acknowledged and recorded."

"That the lessor of the plaintiff, by whose order the said executions issued, had actual notice of the said bargain, sale, and conveyance from Glover to Tayloe and of the possession of Tayloe before the issuing of the said executions."

"That for the purchase money, the lessor of the plaintiff paid nothing, but entered credit on said judgments, or one of them, for the amount of the same."

"Upon the foregoing case stated, it is submitted to the court, if the lessor of the plaintiff be entitled to recover the said messuage, &c., and if the law be for the plaintiff upon the facts aforesaid, then judgment in the usual form to be entered for the plaintiff, otherwise for the defendant. It is agreed the premises in dispute are of the value of $1,000 and upward."

Upon the case stated, judgment in the court below was given for the lessee of the plaintiff for his term yet to come and unexpired, &c. To which judgment the defendant below sued this writ of error.

The first point made by the plaintiff in error is that by the law of Maryland, which, it is admitted is the rule by which this point is to be determined, a judgment is no lien on real estate before execution issued and levied.

It seems there is no act of assembly of that state applicable to the case, but that by an act of Parliament of 5 George II, ch. 7, lands in the colonies are subject to execution as chattels in favor of British merchants; that this statute has been adopted and in use in Maryland ever since its passage as the only one under which lands have been taken in execution and sold.

It is admitted that though this statute extends in terms only to executions in favor of British merchants, it has long received an equitable construction applying it to all judgment creditors. The plaintiff's counsel do not assert that this construction has ever been questioned or that it has not been uniform throughout the state, but asks this Court to review this construction, and give to the statute such an one as will confine it to the only case for which it makes a provision.

Page 30 U. S. 368

As Congress has made no new law on this subject, the circuit court was bound to decide this case according to the law of Maryland, which does not consist merely in enactments of their own or the statutes of England in force, or adopted by the legislature. The adjudications of their courts, the settled and uniform practice and usage of the state, in the practical operation of its provisions, evidencing the judicial construction of its terms, are to be considered as a part of the statute, and as such furnishing a rule for the decisions of the federal courts. The statute and its interpretation form together a rule of title and property, which must be the same in all courts. Had this question occurred in the courts of that state, they would be bound to say that it was now too late to overlook the practical construction which this statute has received for a century and on which numberless titles depend. Property would be held by a very precarious tenure and infinite confusion would be introduced if any court should now resort to its terms as furnishing the class of cases in which lands could be sold on execution and declaring it to extend to none other. It is enough for this Court to know that by ancient, well established, and uniform usage it has been acted on and considered as extending to all judgments in favor of any persons, and that sales under them have always been held and respected as valid titles. The circuit court was right in deciding that the plaintiff below was entitled to all the benefits of the statute of 5 Geo. II. Though it does not provide that a judgment shall be a lien from the time of its rendition, yet there is abundant evidence that it has always been so considered and so acted on.

Though the researches of the counsel for the defendant in error have not enabled them to furnish the court with any express judicial decision on this particular question, yet the evidence adduced is not less satisfactory to show that it has long since been settled. The case of Dorsey v. Worthington, in 4 Harris & McHenry, 533, shows, that so early as 1771, it was adopted as an established principle, and the later cases in 3 Harris & McHenry 450; 2 Harris & Johnson 64, 73; 3 Harris & Johnson 497, are founded on it as a well known preexisting rule, not questioned even by counsel, but apparently of a time so remote as to be beyond not only the memory of any living jurist, but the reported decisions of any

Page 30 U. S. 369

court. The decisions in the cases referred to are wholly unsupported and unaccountable on any other construction of the statute than the one contended for by the defendant in error.

If a judgment was not a lien from its date, an alienation before execution would prevent it from attaching afterwards. Yet the plaintiff may proceed and sell lands aliened after judgment without a scire facias, against the alienee. 2 Harris & Johnson 72. So of lands in the hands of a purchaser under a younger judgment, 3 Harris & McHenry 450, or against a terre-tenant after the defendant had been arrested on a ca. sa. on the same judgment, imprisoned, escaped, and a judgment against the sheriff. 3 Harris & Johnson 497. 4 Harris & McHenry, 533, S.P. There can therefore be not doubt that from the earliest period, the courts of Maryland had established it as a rule of property, which had become unquestioned long before the cession of this district to the United States, that a judgment is a lien per se on the lands of the defendant.

The next question which arises is whether the proceedings which have been had on the judgment in question, prior to the execution on which this lot was sold, have impaired or annulled its lien. The plaintiff had an undoubted right to an execution against the person and the personal or real property of the defendant; he has his election, but his adoption of any one does not preclude him from resorting to the other if he does not obtain satisfaction of the debt on the first execution. His remedies are cumulative and successive, which he may pursue until he reaches that point at which the law declares his debt satisfied. A ca. sa. executed does not extinguish it. If the defendant escape or is discharged by operation of law, the judgment retains its lien and may be enforced on his property. The creditor may retake him or sue the sheriff for the escape. A judgment against him does not amount to a satisfaction of the original debt, but it retains its lien until the plaintiff has done or consented to some act which amounts in law to payment, as the discharge of defendant from custody, or, in some cases, a levy on personal property. But we know of no rule of law which deprives a plaintiff in a judgment of one remedy by the pursuit of another or of all which the law gives him. The doctrine of election, contended for by the plaintiff in error, if it exists in any case of a creditor, unless under the statutes

Page 30 U. S. 370

of bankruptcy, has never been applied to a case of a defendant in execution discharged under an insolvent act by operation of law; a contrary principle is recognized as well settled in 5 East 147.

The greatest effect which the law gives to a commitment on a ca. sa. is a suspension of the other remedies on the judgment during its continuance: whenever it terminates without the consent of the creditor, the plaintiff is restored to them all as fully as if he had never made use of any. The cases cited by the defendant from Buller's Nisi Prius 69; 5 Coke 86, b.; Bloomfield's Case and those in the courts of Maryland fully support and are decided on this principle. In 1 Vesey 195, Lord Hardwicke decided that where a defendant was in custody under a ca. sa., and a fi. fa. was afterwards taken out on the same judgment, and a farm levied on and sold, the purchaser being a stranger should hold it, as the fi. fa., though irregular and erroneous, was not void. The authority of this decision has never been questioned, and fully establishes the position that a ca. sa. neither extinguishes the debt nor annuls the subsequent proceedings on a fi. fa., though the case would have been different had the plaintiff in the judgment been the purchaser. In the present case, we must consider Thomson as the plaintiff in the judgment on which the lot in controversy has been sold, and that the sale may be open to objections, which would not be good against a stranger purchaser; but we can perceive in the case stated no facts which in any manner legally invalidate his purchase. He had a right to make use of the ca. sa. until he obtained satisfaction. The escape of Glover by his breach of prison bounds could not effect the lien of the judgment. The plaintiff was not bound to resort to the prison bond as his only remedy; a judgment on it against Glover was no more a bar to a fi. fa. than a judgment against the sheriff for an escape, and Glover could place himself in no better situation by breaking his bond than by remaining a true prisoner. Whether he escaped or remained in prison bounds, the marshal was bound to recommit him to close custody after the expiration of twelve months from the date of the bond [3d section of the Act of June 1812, Burch, 277]. This was a measure directed by law without any application to the creditor; its being done

Page 30 U. S. 371

in this case on his motion cannot vary the effects, for Glover in either case must remain in custody until the debt for which he was committed was paid or he be discharged under the act of Congress for the relief of insolvent debtors. Up to this time, no act was done by the judgment creditor which could impair the legal effect of his judgment by any rule of the common law, the laws of Maryland or the District of Columbia, or by any legal adjudication of the courts of that state on the construction of the statute.

It remains only to consider the effect of the proceedings under the insolvent law of the District, under which Glover was discharged. The counsel for the plaintiff in error relies on the last clause of the fifth section of this law as conclusive against the proceedings on the judgment subsequent to Glover's discharge.

"And no process against the real or personal property of the debtor shall have any effect or operation except process of execution, and attachments in the nature of executions, which shall have been put into the hands of the marshal antecedent to the application."

The true meaning of this clause can be ascertained from the provisions of the preceding part of the law; the debtor is to make out a list of all his property, real, personal and mixed, and offer to deliver it up to the use of his creditors; the court then appoint a trustee, who is required to give bond with security for the faithful performance of his trust. The debtor is then directed to execute to the trustee a deed conveying all his property, rights, and credits.

The lot in question was not the property of Glover at the time of his application for the benefit of the law; he had conveyed it in fee in January, 1819, and received the purchase money, and therefore neither could have any property in the lot or right or credit arising from the sale; nothing to deliver up to his creditors or convey to the trustee; no question could arise between them and the judgment creditor; and the trustee could have no right to sell the lot and distribute the proceeds among the creditors of Glover. The fifth section applies only to the property which passed to the trustee by the deed from the insolvent, not to what he had conveyed to Tayloe in 1819, six years before Glover's discharge. The trustee acquired what the debtor had at the time of his application

Page 30 U. S. 372

or was in any way entitled to that he could sell, and must distribute ratably among all the creditors after satisfying encumbrances and liens. The application of the clause of this section, before recited, was intended only for a case where one creditor sought to obtain a preference by process against the debtor's property after his application. In such case it declared it should have no effect or operation; but where the encumbrance or lien had attached before the application, it had a priority of payment out of the assigned fund.

Thus understood, the case is perfectly plain. This law can have no application to real estate which never did and never could come into the hands of the trustee for distribution, but left the judgment creditor with all his rights to enforce the lien of his judgment on lands of the debtor in the hands of the plaintiff in error, who purchased after its rendition, and must hold it as the debtor did, subject to its lien.

It is not alleged that the proceedings subsequent to the levy on the lot are erroneous or void; they appear to have been regular, and therefore vested the title to the lot in controversy in the lessor of the plaintiff.

The judgment of the circuit court is affirmed with costs.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States, for the District of Columbia holden in and for the County of Washington, and was argued by counsel, on consideration whereof it is considered, ordered, and adjudged by this Court that the judgment of the said circuit court in this cause be and the same is hereby affirmed with costs.

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