Erwin v. Lowry
48 U.S. 172 (1849)

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U.S. Supreme Court

Erwin v. Lowry, 48 U.S. 7 How. 172 172 (1849)

Erwin v. Lowry

48 U.S. (7 How.) 172

Syllabus

Where a petition for the seizure and sale of the mortgaged property of a deceased person was filed in the Circuit Court of the United States for Louisiana against the executor of that deceased person, which petition alleged the plaintiff to be a citizen of Tennessee and the defendant to be a citizen of Louisiana, and the proceedings went on to a sale without any objection to the jurisdiction of the court being made by the executor upon the ground of residence of parties, it is too late for a curator, appointed in the place of the executor, to raise the objection in a state court against a purchaser at the sale and attempt to prove that the circuit court had no jurisdiction over the case because the executor was not a citizen of Louisiana. Evidence dehors the record cannot be introduced to disprove it.

Where a lien existed on property by a special mortgage before the debtor's death, and

Page 48 U. S. 173

the property passed, with the lien attached, into the hands of an executor, and was in the course of administration in the probate court, the circuit court of the United States had jurisdiction, notwithstanding, to proceed against the property, enforce the creditor's lien, and decree a sale of the property. And such sale was valid.

The circuit court of the United States, having jurisdiction over the parties and subject matter and having issued an order of seizure and sale, the presumption must be, in favor of a purchaser, that the facts which were necessary to be proved in order to confer jurisdiction were proved. No other court can inquire into those facts.

Although the marshal did not give the notice required by law to the executor against whom the petition was filed, yet if the executor was served with process on the spot where the property was situated and where the advertisements were posted up, was present at the sale and named one of the appraisers, and requested that the land and negroes should be sold together, he cannot afterwards impeach the sale because formal steps were not strictly complied with. Nor can the curator who subsequently represented the same estate.

Where the court below ordered that a sum of money should be paid over by the party in whose favor they decided to the losing party, the reception of this money by the losing party, before the writ of error was sued out, will not be a sufficient cause for dismissing the writ of error.

In the beginning of the year 1835, Dawson and Nutt were the owners of some land situated in the Parish of Carroll, in the State of Louisiana, on the waters of the Walnut Bayou, amounting to 640 acres, and also of a number of slaves. On 8 January, 1835, they sold the land and slaves to Alexander McNeill, of the State of Mississippi, for one hundred and five thousand dollars, payable in five payments; the first four of twenty-five thousand dollars each, and the last of five thousand. McNeill gave a mortgage upon the land and slaves to secure the last four payments.

Whether notes were given for all these payments, and when they were to be made, the record did not show. But by an endorsement upon the mortgage under date of January 15, 1838, it appeared that all the payments had been made except the fourth.

About 28 May, 1839, Alexander McNeill died in Mississippi.

By his will, which contains several legacies of small value, he bequeathed the mass of his estate to Hector McNeill, also a resident and citizen of Mississippi, whom he appointed his testamentary executor. On 6 June, 1839, this executor, stating himself to be a citizen of Coahoma County, in Mississippi, presented a petition to the judge of probates of the Parish of Madison, in which, after stating that his testator had died on the date above stated, in Mississippi, and left a will, in which he was appointed sole executor and principal legatee, an authenticated copy of which was annexed to the petition, he proceeds

Page 48 U. S. 174

to say, that two large estates were in the possession of his testator, situated in this parish.

He says further that, by the laws of Mississippi, as executor of the will, he was bound to present it for probate in Warren County in that state, without delay, but as the court would not sit for some weeks, he could not then have the will proved and recorded, nor could he then present a duly certified copy of it to be recorded in the said Probate Court of Madison. He says he is

"desirous of taking on himself the succession of his deceased brother's estate, according to the terms of his last will and testament and the laws of the state; he therefore prays that an inventory of all the property in the parish, belonging to the estate of said Alexander McNeill, deceased, be taken."

And he prays the judge to grant him the succession of the deceased Alexander McNeill according to the terms of the will and the laws of the state, and that he will grant any other and whatever order may be necessary to entitle him (Hector) to the possession and succession of the property left by the deceased. Upon this petition no order or judgment was given by the probate judge, but on 2 July following, he proceeded to make an inventory of the property composing Alexander McNeill's succession, which is signed by Hector McNeill as executor. The will was probated in Warren County, Mississippi, on 24 June, 1839, and a copy of it, and the proceedings in the aforesaid court, recorded in the Probate court of Madison on 1 July, 1839, one day before the taking of the inventory, but no order taken on it further than to record it.

By the inventory and appraisement, the whole property of the deceased in that parish amounted to $245,317.

On 1 November, 1839, Hector McNeill presented the following petition:

"To the Honorable Richard Charles Downes, Parish Judge in and for the Parish of Madison, State of Louisiana."

"Hector McNeill, heretofore a resident of Warren County, State of Mississippi, respectfully represents to your honor, that he is the owner of large possessions in this parish, consisting of plantations, negroes &c.; that he is desirous of acquiring residence, and to be entitled to the privileges &c., of a resident of this parish; that he is aged thirty-one years; that he is from the State of Mississippi, as aforesaid, and that he desires to pursue planting in this parish, and to reside and make his permanent domicile and home on the Walnut Bayou, Parish of Madison, Louisiana. Wherefore he prays this notice may be duly filed and recorded."

"H. McNEILL"

"Walnut Bayou, La., Nov. 1, 1839 "

Page 48 U. S. 175

On 23 May, 1840, Andrew Erwin filed the following petition in the circuit court of the United States:

"To the Honorable the Judges of the Circuit Court of the United States for the Ninth circuit of Louisiana."

"The petition of Andrew Erwin, a citizen of the State of Tennessee, therein residing, respectfully shows:"

"That Hector McNeill, testamentary executor of Alexander McNeill, a citizen of the State of Louisiana, residing in the Parish of Madison, within the jurisdiction of this Honorable Court, is justly indebted to your petitioner in the sum of seventeen thousand five hundred dollars, besides interest on the promissory notes hereto annexed for reference and greater certainty, drawn on 8 January, 1835, and payable four years after date, and duly protested when due for want of payment, as will further appear from the protests thereof hereunto annexed for reference, one of which notes was payable to the order of Conway R. Nutt, a citizen of the State of Mississippi, and by him duly endorsed to your petitioner, and the other to Henry S. Dawson, also a citizen of the State of Mississippi, and by him duly endorsed to your petitioner, who avers that the assignors of said notes could have maintained an action in your Honorable Court on the said notes against the said Alexander McNeill, previously to the assignment thereof; that on the balance of one of said notes, seven thousand five hundred dollars interest is due at the rate of ten percent per annum, from 11 January, 1839, until paid, and on the balance of the other five thousand dollars, interest is due from the same date, 11 January, 1839, until paid, and which, though amicably requested, the said Alexander McNeill, as well as his testamentary executor, has neglected to pay."

"Your petitioner further shows that said notes were given in purchase of a plantation situated in the Parish of Madison aforesaid and certain slaves, and for securing the payment thereof, the said plantation and slaves were duly mortgaged, as will further appear from a certified copy thereof hereto annexed to make part and parcel of this present petition, and to which for greater certainty your petitioner refers, and thence your petitioner is entitled to an order of seizure and sale for the payment of the balance aforesaid of seventeen thousand five hundred dollars, with the interest from 11 January, 1839, of ten percent on the sum of seven thousand five hundred dollars, and on ten thousand dollars interest at the rate of five percent until paid, and the costs of the protests of said notes, ten dollars and fifty cents. Wherefore your petitioner prays that an order of seizure and sale may issue

Page 48 U. S. 176

against the said plantation, and the negroes mentioned and described in the act of sale and mortgage aforesaid, hereunto annexed, to pay and satisfy said sum of seventeen thousand five hundred dollars, with interest as aforesaid, from 11 January, 1839, until paid, with $10.50 costs of protest and the costs of suit. And your petitioner prays for all such other and further relief as the nature of the case may require and to equity and justice may appertain, and as in duty bound will ever pray your petitioner. (Seventeen thousand and five hundred dollars, besides interest and costs, claimed.)"

"ALFRED HENNEN, Attorney for Petitioner"

On the day of the filing of the petition, the following order was issued, viz.:

"Inasmuch as the mortgage within mentioned imports a confession of judgment, let an order of seizure and sale issue for the sale of the property mortgaged, if the sum within claimed is not paid after legal notice."

"P. K. LAWRENCE, U.S. Judge"

"New Orleans, 23 May, 1840"

Afterwards, to-wit, on 23 May, 1840, the following writ of seizure and sale was issued:

"United States of America:"

"The President of the United States to the Marshal of the Eastern District of Louisiana or his lawful deputy, greeting: "

"You are hereby commanded to seize and sell, after legal demand, for cash, the following described property, to-wit: [then followed a list of the property, namely, land and slaves]."

The return of the marshal was as follows:

"Received this order of seizure and sale on 25 May, 1840, and on 29 May I delivered the order of court and copy of mortgage issued by the clerk of this Court to the defendant; also a copy of a notice of demand, which notice is herewith returned (marked A). On 1 June, I seized the land and fifty-seven slaves, mentioned in this order of seizure and sale, and delivered to said defendant a copy of notice of said seizure, which is also herewith returned (marked B). On 4 June, 1840, I affixed copies of an advertisement (marked C), and herewith filed, to the door of the courthouse, the door of the parish judge's office, and at other places, in the Parish of Madison and State of Louisiana, in which the said

Page 48 U. S. 177

property is situated, announcing that the said property would be offered for sale on the said premises, to the highest bidder for cash on Monday, 6 July, 1840, being full thirty days, exclusive of the day on which the advertisements were posted up, viz., 4 June, 1840, and the day of sale. On the said 6 July, 1840, I repaired to the premises aforesaid, and after the appraisers, James Brooks and Jesse Couch, duly qualified citizens of Louisiana, selected by the plaintiff and defendant in this case for that purpose, were duly sworn, they proceeded to appraise the said land and forty-four of the negroes in this order of seizure and sale, and the same conveyed by deed from the marshal to the purchaser, bearing date 7 July, 1840, and of record of this Court. Thirteen of the said fifty-seven negroes which were seized by me, proving to be others than those named in this process, were not appraised, neither could the said thirteen be found, as reported by the said appraisers in their report, now filed in the court, and marked D. The said land was appraised at $13 per acre; the 640 acres at $13, amount $8,320. The said forty-four negroes were appraised separately and in families and the amount of the whole when added was $15,525, making the aggregate amount for the land and negroes $23,845. After said appraisement was completed and between the hours of 12 A.M. and 1 P.M., I offered the said land and forty-four negroes for sale; after making all the declarations required by law in relation to the nature and description of the same, and after exhibiting and reading, in an audible voice, a certificate of the recorder of mortgages of the said Parish of Madison; and after repeatedly crying the said property, James Erwin, Esq. bid the sum of $16,000, which being the highest and last bid, and more than two-thirds of the appraisement thereof, the said land and negroes were adjudged to him, and on 7 July, 1840, were conveyed by deed, now of record in this Court."

On 7 July, 1840, the marshal executed a deed of the above property to James Erwin, reciting the circumstances attending the public sale.

On 23 March, 1841, the Court of Probate in the Parish of Madison appointed Alfred J. Lowry curator of the vacant succession of Alexander McNeill.

On 16 August, 1841, Lowry, the curator, filed a petition in the Ninth Judicial District Court in and for the Parish of Madison (state court). It represented that McNeill, at his death, was the owner of the estate, and that James Erwin had illegally, and by fraud and collusion, taken possession of it. It then prayed for a restoration of the property, and an account of the rents and profits.

Page 48 U. S. 178

On 5 May, 1842, Erwin filed his answer, reciting the above facts and claiming title under the sale.

Evidence having been taken, the district court, at December term, 1842, pronounced a judgment in favor of the petitioner, the curator.

An appeal was taken by Erwin from this judgment to the supreme court of the state, which, in October, 1843, affirmed the judgment of the court below. A writ of error, sued out under the twenty-fifth section of the Judiciary Act, brought the case up to this Court.

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