Ford v. Douglas
46 U.S. 143 (1847)

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U.S. Supreme Court

Ford v. Douglas, 46 U.S. 5 How. 143 143 (1847)

Ford v. Douglas

46 U.S. (5 How.) 143

APPEAL FROM THE CIRCUIT COURT OF THE UNITED

STATES FOR THE EASTERN DISTRICT OF LOUISIANA

Syllabus

By the laws of Louisiana, where there has been a judicial sale of the succession by a probate judge, a creditor of the estate, who obtains a judgment, cannot levy an execution upon the property so transferred upon the ground that the sale was fraudulent and void. He should first bring an action to set the sale aside.

The purchaser under the judicial sale having filed a bill and obtained an injunction upon the creditor to stay the execution, it was an irregular mode of raising the question of fraud for the creditor to file an answer setting it forth and alleging the sales to be void upon that ground. He should have filed a cross-bill. Exceptions to the answer upon this account were properly sustained by the court below.

But if the court below should perpetuate the in upon the defendants' refusal to answer further, the injunction should be free from doubt, in leaving the creditor to pursue other property under his judgment, and also at liberty to file a cross-bill. If the injunction does not clearly reserve these rights to the creditor it goes too far, and the judgment of the court below must be reversed.

As the merits of the case were not involved in the decision of the court, it will only be necessary to give such a narrative of the facts as will illustrate the points of law upon which the decision turned.

On 24 November, 1837, James S. Douglas of the State of Louisiana, made his last will and testament, as follows:

"I, James S. Douglas of the Parish of Concordia, and State of Louisiana, being feeble in body, and knowing the uncertainty of this life, but of sound and disposing mind and memory, do make and publish this my last will and testament."

"First. I direct that all my just debts be paid as soon after my

Page 46 U. S. 144

decease as my executors shall realize the same from the real and personal estate entrusted to their care and management."

"Secondly. Reposing the utmost confidence in my beloved wife, Emeline Douglas I hereby constitute and appoint her executrix, and my brother, Stephen Douglas and my friend, Passmore Hoopes, executors of all my estate, real and personal, lying and being in the State of Mississippi."

"Thirdly. I also appoint my brother, Stephen Douglas and my friend, Passmore Hoopes, executors of all my estate, real and personal, lying and being in the said State of Louisiana."

"In witness whereof I have hereunto set my hand any seal this twenty-fourth day of November, one thousand eight hundred and thirty-seven."

"[Signed] JAMES S. DOUGLAS [SEAL]"

This will, being duly attested, was admitted to probate in Mississippi on 25 December, 1837, and letters testamentary granted. It is not necessary to follow the proceedings in Mississippi further.

In 1838, May 26, in the State of Louisiana, before Richard Charles Downes, Parish Judge in and for the Parish of Madison, ex officio judge of probates, came Stephen Douglas presented his petition, setting forth the death of his brother, James S. Douglas as happening in November, 1837; that he made his last will and testament, wherein he appointed the said Stephen Douglas and Passmore Hoopes testamentary executors of his estate in Louisiana; that probate of the will had been made in Claiborne County, Mississippi; therefore, praying letters in pursuance of the testament, and an inventory, whereupon the judge ordered that upon probate of the testament an inventory be taken.

On 30 March, 1839, the will was proved in Louisiana, as it had before been in Mississippi. Amongst other claims against the estate, Stephen Douglas, the executor, filed an account claiming a debt due to him of $53,150.42.

On 31 October, 1839, Emeline Douglas the widow, was appointed guardian of her four children, and Archibald Douglas a younger brother of Stephen, was appointed under tutor or guardian. A family meeting was called, and attended the parish judge, which advised the sale of the plantation and slaves, implements, cattle &c., at the head of Lake St. Joseph's, to satisfy the balance due to Stephen Douglas the executor.

The sale was accordingly ordered by the parish judge, and took place on 23 March, 1840, when Mrs. Emeline Douglas and Archibald Douglas became the purchasers.

On 1, 1840, Emeline Douglas obtained a judgment in her favor against the estate for $76,634.74, and, on 22 of April the parish judge ordered another sale to take place for the purpose of paying this debt.

Page 46 U. S. 145

On 8 June, 1840, the parish judge made sale of a plantation called Buck Ridge, slaves, cattle, corn &c., all of which belonged, jointly, to James S. Douglas the deceased, and Stephen Douglas the executor. This property was purchased by Emeline Douglas and Archibald Douglas for $83,000.

In December, 1840, and January, 1842, Ford, a citizen of Virginia, obtained the three following judgments against the executor, in the circuit court of the United States, viz., the one judgment obtained on 23 December, 1840, for $9,180, with interest, at the rate of eight percent per year, from 15 January, 1838, on one-half thereof, and from 15 January, 1839, on the other half thereof, besides costs.

Another judgment, of 26 December, 1840, for $4,590, with interest at same rate from 15 January, 1840, besides costs.

The third, of January 3, 1842, for $4,590, with interest at same rate until paid, besides costs -- making together $18,360, besides interest and costs.

Executions were issued upon these judgments and levied upon the property which had been purchased by Emeline Douglas and Archibald Douglas.

On 21 December, 1842, Archibald Douglas Maxwell W. Bland and Emeline, his wife (late Emeline Douglas), filed their bill in the Circuit Court of the United States for the Eastern District of Louisiana against Christopher Ford and the marshal, praying for an injunction to stay further proceedings under the judgments, and that they might be quieted in their possession of the property which they had purchased.

On 30 December, 1842, an injunction was issued accordingly.

On 21 April, 1843, Ford filed his answer, in which he alleged that the proceedings under the will, as well in Mississippi as in Louisiana, were the result of fraud, collusion, and combination, in consequence of which they were null and void and passed no title to the complainants. The answer then proceeded to set forth with great particularity the acts of which he complained and concluded as follows:

"This respondent, having answered the allegations in said petition set forth, prays this Honorable Court that the said petition may be decreed to be dismissed, and the injunction had and obtained in this case may be dissolved, and a judgment rendered against the said petitioners and the sureties on their injunction bond for damages, according to law. That this Honorable Court make such other judgment, orders, and decrees as may be found legal and proper to declare void and null the sales relied on in said petition, to finally dissolve the said injunction with legal damages in favor of this respondent, to dismiss said petition and relieve this respondent from the opposition of said petitioners, to order the marshal to proceed

Page 46 U. S. 146

to the sale of said property under the said three writs of fieri facias, for the satisfaction of the said judgments of this respondent, and that this respondent have judgment for his costs."

"And this respondent will ever pray, &c."

"[Signed] CHRISTOPHER FORD"

On 22 April, 1843, the following exception to the answer was filed:

"The said plaintiffs except to the answer filed by the said defendants in this behalf because the matters and things set forth in the said answer cannot by law be inquired into in the present suit or proceedings instituted by the said plaintiffs. And the said plaintiffs, not admitting any of the facts or matters set forth and alleged in the said answer of the said defendants, but on the contrary denying and protesting against the truth of all and every part thereof and alleging that the truth thereof cannot be inquired into in this action, pray that they may have the benefit of their injunction and that the same may be made perpetual, &c."

"[Signed] JNO. R. GRYMES, for Plaintiffs"

And on the same day and year aforesaid, to-wit, on 22 April, 1842, the following agreement was filed:

"Douglas v. C. Ford et al."

"Circuit Court of the United States, Eastern District of Louisiana:"

"It is agreed that this case may be set down for argument on the matters of law arising on the petition and answer, as on an exception to the answer, and that if the judgment of the court on the matters of law should be for the defendant, the plaintiffs may join issue on the facts, and the testimony taken in the usual manner. The plaintiffs to be at liberty at any time before hearing, to file special exceptions in writing."

"[Signed] JNO. R. GRYMES, for Plaintiffs"

On 22 April, 1843, the cause came on for trial upon the plaintiffs' exceptions to the answer of the defendant, and on the 24th the following order of court was entered of record:

"Monday, April 24, 1843"

"The court met pursuant to adjournment. Present, the Honorable John McKinley, Presiding Judge; the Honorable Theodore H. McCaleb, district Judge."

"Christopher Douglas et al v. Christopher Ford et al."

"The consideration of exception filed in this case to the answer of the defendant was this day resumed before the court, the complainants not appearing either in person or by his solicitor, and F. Houston, Esq., for the defendant. Whereupon, the arguments of counsel being closed, it is ordered, adjudged, and decreed by the

Page 46 U. S. 147

court that the exception of the complainants to defendants' answer be sustained, and that the defendant answer over."

"Archibald Douglas v. Christopher Ford et al."

"The defendant, Christopher Ford, by his counsel, declines to answer further in this case the bill of the plaintiffs, relying and insisting on the sufficiency of the ample and conclusive answer filed by him in this cause and the utterly null and void character of the title set up by said plaintiffs, apparent on their said bill, and the record of the mortuary proceedings of the succession of the said James S. Douglas deceased. The defendant having declined to answer further in this case and to submit it to the court to render such final decree in the case as may appear to them to be proper, it is therefore ordered, adjudged, and decreed that the injunction heretofore awarded in this case be and the same is made perpetual, and it is further ordered, adjudged, and decreed that the plaintiffs recover the costs of suit, without prejudice to the right of the defendant to any action he may think proper."

From this decree, Ford appealed to this Court.

Page 46 U. S. 163

MR. JUSTICE NELSON delivered the opinion of the Court.

The complainants below, the appellees here, filed their bill against Christopher Ford, the appellant, and Robertson, the marshal of the district, for the purpose of obtaining injunctions to stay proceedings upon the several judgments and executions which Ford had recovered in the circuit court of the United States against one Stephen Douglas as executor of J. S. Douglas deceased.

The judgments amounted to some $18,000, and the marshal had levied upon two plantations, and the slaves thereon, of which the testator, J. S. Douglas had died seized and possessed.

The bill set forth that Stephen Douglas against whom the judgments had been recovered, neither in his own right nor as executor of J. S. Douglas deceased, had any title to or interest in the plantations and slaves which had been seized under and by virtue of the said executions, and that the same formed no part or portion of the succession of the testator in the hands of the said executors to be administered. But that the whole of the said plantations and slaves, including the crops of cotton, and all other things thereon, were

Page 46 U. S. 164

the true and lawful property of the complainants; that they were in the lawful possession of the same, and had been for a long time before the issuing of the executions and seizure complained of, and had acquired the said property and the title thereto at a probate sale of all the property belonging to the estate and succession of the said testator -- which sale was lawfully made and vested in the complainants a good and valid title. All which would appear by the proces verbal of the said ajudications and the mortuary proceedings annexed to and forming a part of the bill.

An injunction was granted in pursuance of the prayer of the bill staying all proceedings on the judgments rendered in the three several suits and also on the executions issued thereon against the property.

Christopher Ford, the adjudged creditor, in answer to the bill, denied the validity of the probate sales of the plantations and slaves to the complainants and charged that they were effected and the pretended title thereto acquired by fraud and covin between the executor, Stephen Douglas and the executrix, the widow of the testator, and one of the complainants, for the purpose of hindering and defrauding the creditors of the estate, that in furtherance of this design, a large amount of simulated and fraudulent claims of the executor and executrix were presented against the succession, to-wit, $53,000 and upwards in favor of the former, and $76,000 and upwards in favor of the latter, which were received and allowed by the probate court without any vouchers or legal evidence of the genuineness of the debts against the estate, that these simulated and fraudulent claims were made the foundation of an application to the said probate court for an order to sell the two plantations and slaves thereon, under whom the widow and one Archibald Douglas became the purchasers at the probate sale, that neither had paid any part of the purchase money to the executor or probate court, and which was the only title of the complainants to the property in question, upon which the defendant had caused the executions to be levied.

In confirmation of the fraud thus alleged in the probate sales in the Parish of Madison and State of Louisiana, the defendant further charges that the testator died seized and possessed also of a large plantation and slaves and personal property therein situate in the County of Claiborne and State of Mississippi, inventoried at upwards of $70,000, besides notes and accounts to the amount of $161,000 and upwards, that the said plantations and slaves were, on application of Stephen Douglas the executor, to the probate court in that state, and an order for that purpose obtained, sold, and purchased in by the widow and executrix for about the sum of $40,000, and that the personal estate of $161,000 and upwards, of notes and accounts, were not and have not been accounted for by the executor to the court of probate.

Page 46 U. S. 165

In short, according to the answer of the defendant, the estate and succession of the deceased debtor, inventoried at about the sum of $300,000, and for aught that appears available to that amount, has been sold and transferred through the instrumentality and agency of family connections, under color of proceedings apparently in due form in the probate court, into the hands of the widow and a brother of the deceased without adequate consideration, if consideration at all, and with the intent to hinder, delay, and defraud the creditors of the estate, and particularly the defendant.

The complainants excepted to the answer filed by the defendant because the matters and doings set forth therein could not in law be inquired into in the present suit or proceedings instituted by the said complainants, and prayed that they might have the benefit of their injunction and that it might be made perpetual.

And thereupon it was agreed that the case might be set down for argument on the matters of law arising on the bill and answer and that if the judgment of the court in matters of law should be for the defendant, the complainants might join issue on the fact, and testimony be taken in the usual manner.

The court, after argument of counsel, decreed that the exception of the complainants to the defendant's answer was well taken, and gave leave to answer over, which was declined, and therefore the court adjudged and decreed that the injunction theretofore awarded in the case should be made perpetual, and it was further adjudged and decreed that the complainants recover the costs of suit, without prejudice to the right of the defendant to any action he might think proper.

The decision of the court below and the view which we have taken of the case here do not involve the question whether the matters set forth in the answer sufficiently established the fact that a fraud had been committed by the complainants against creditors in the several sales and transfers of the property in question through the instrumentality of the probate court, nor, as it respects the effect of the fraud, if established, upon the title derived under these sales. If the case depended upon the decision of these questions, we entertain little doubt as to the judgment that should be given.

The ground of the decision below and of the argument here is that the complainants were not bound to answer the allegations of fraud against their title in the aspect in which the case was presented to the court, that a title derived under a public sale, in due form of law, by the probate judge, protected them in the full and peaceable possession and enjoyment of the property until the conveyance was vacated and set aside by a direct proceeding instituted for that purpose, and that this step on the part of the judgment creditors was essential, upon the established law of the State of

Page 46 U. S. 166

Louisiana, before he could subject the property to the satisfaction of his judgment.

We have accordingly looked into the law of that state on this subject, and find the principle contended for well settled and uniformly applied by its courts in cases like the present. The judgment creditor is not permitted to treat a conveyance from the defendant in the judgment made by authentic act, or in pursuance of a judicial sale of the succession by a probate judge, as null and void, and to seize and sell the property which had thus passed to the vendee. The law requires that he should bring an action to set the alienation aside and succeed in the same before he can levy his execution. And so firmly settled and fixed is this principle in the jurisprudence of Louisiana as a rule of property and as administered in the courts of that state that even if the sale and conveyance by authentic act, or in pursuance of a judicial sale, are confessedly fraudulent and void, still no title passes to a purchaser under the judgment and execution, not a creditor of the vender, so as to enable him to attack the conveyance and obtain possession of the property. In effect the sale, if permitted to take place, is null and void, and passes no title. Henry v. Hyde, 5 Mart. N.S. 633; Yocum v. Bullitt, 6 id. 324; Peet v. Morgan, 6 id. 137; Childres v. Allen, 3 La. 477; Brunet v. Duvergis, 5 id. 124; Samory v. Hebrard, 17 id. 558.

The case of Yocum v. Bullitt, among many above referred to, is like the one before us.

The court there said:

"The record shows that the slaves had been conveyed by the defendant in the execution by a sale under the private signature recorded in the office of the Parish Judge of St. Landry, where the sale was made. If the sale was fraudulent, it must be regularly set aside by a suit instituted for that purpose; that it was not less a sale and binding upon third parties until declared null in an action which the law gives, Curia Phil. Revocatoria, n. 2; that the possession of the vendee was a legal one, until avoided in due course of law."

The court further remarked, that

"The same point had been determined at the preceding term, in which it had been held that a conveyance alleged to be fraudulent could not be tested by the seizure of the property or estate belonging to the vender, but an action must be brought to annul the conveyance."

The principle runs through all the cases in the books of reports in that state, and has its foundation in the Civil Code, art. 1965, 1973, 1984, and in the Code of Practice, § 3, art. 298, 301, 604, 607, and in Stein v. Gibbons & Irby, 16 La. 103. And from the course of decision on the subject, it is to be regarded not merely as a rule of practice, or mode of proceeding in the enforcement of civil rights, which would not be binding upon this court, but as a rule of property that affects the title and estate of

Page 46 U. S. 167

the vendee, and cannot, therefore, be dispensed with without disturbing one of the securities upon which the rights of property depend. It gives strength and stability to its possession and enjoyment by forbidding the violation of either except upon legal proceedings properly instituted for the purpose. Neither can be disturbed except by judgment of law. For this purpose the appropriate action is given, providing for the secession of all contracts as well as for revoking all judgments when founded in fraud of the rights of creditors.

In this Court, a bill filed in the equity code is the appropriate remedy to set aside the conveyance. In the present case a cross-bill should have been filed setting forth the matters contained in the answer of the defendant. The vendees would then have had an opportunity to answer the allegations of fraud charged in the bill, and if denied, the parties could have gone to their proofs, and the case disposed of upon the merits.

It is said that in some of the western states, an answer like the one in question would be regarded by their courts in the nature of a cross-bill, upon which to found proceedings for the purpose of setting aside the fraudulent conveyance. But the practice in this Court is otherwise, and more in conformity with the established course of proceeding in a court of equity.

We are of opinion, therefore, that the appellant mistook his rights in attempting to raise the question of fraud in the probate sales in his answer to the injunction bill, and that instead thereof he should have filed a cross-bill, and have thus instituted a direct proceeding for the purpose of setting aside the sales and subjecting the property to his judgments and executions, and that in this respect and to this extent the decree of the court below was correct.

But on looking into the decree, we are apprehensive that it has been carried further than the assertion of the principle which we are disposed to uphold, and which may seriously embarrass the appellant in the pursuit of a remedy that is yet clearly open to him.

The injunction issued on filing the bill of complainants commanded the appellant to desist from all further proceedings on his three judgments or on the executions issued against the property, and the court, on the coming in of the answer, has decreed that the same be made perpetual. And further that the complainants recover the costs of suit without prejudice to the right of the defendant to any action he may think proper.

It is at least a matter of doubt, and might be of litigation hereafter, whether, upon the broad and absolute terms of the decree used in enjoining the proceedings, the party is not concluded from further proceedings against the property in question founded upon these judgments and executions.

They must constitute the foundation of his right and title, upon filing a cross-bill, to any relief that he may hereafter show himself

Page 46 U. S. 168

entitled to. The saving clause may not be regarded as necessarily leaving a proceeding of this description open to him. A question might also be raised whether the judgments are not so effectually enjoined as to prevent their enforcement against property of the judgment debtor not in controversy in this suit. At all events, we think it due to the appellant and to justice, looking at the nature and character of the transaction and proceeding as developed in the pleadings, that the case should be cleared of all doubts and dispute upon this point. We shall therefore

Reverse the decree and remit the proceedings to the court below with direction that all further proceedings on the three judgments and executions be stayed as it respects the property seized and in question, but that the appellant have liberty to file a cross-bill, and take such further proceedings thereon as he may be advised.

Order

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel. On consideration whereof it is ordered and decreed by this Court that the decree of the said circuit court in this cause be and the same is hereby reversed with costs, and that this cause be and the same is hereby remanded to the said circuit court with directions to that court that all further proceedings on the three judgments and executions be stayed as it respects the property seized and in question, but that the appellant have liberty to file a cross-bill and to take such further proceedings thereon as he may be advised, and that such further proceedings be had in this cause in conformity to the opinion of this Court as to law and justice shall appertain.

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