Bayard v. Lombard
50 U.S. 530 (1850)

Annotate this Case

U.S. Supreme Court

Bayard v. Lombard, 50 U.S. 9 How. 530 530 (1850)

Bayard v. Lombard

50 U.S. (9 How.) 530

Syllabus

Where land was sold under an execution, and the money arising therefrom about to be distributed amongst creditors by an order of the circuit court, a controversy between the creditors as to the priority of their respective judgments cannot be brought to this Court either by appeal or writ of error.

Although the state in which the judgment was given allowed appeals by statute in similar cases arising in the courts of the state, yet it does not follow from the adoption of the forms of process in execution that the courts of the United States adopted the modes of reviewing the decisions of inferior courts.

An appeal to this Court is given in chancery cases alone.

Nor is the case a proper one for a writ of error. Such a writ cannot be sued out by persons who are not parties to the record, in a matter arising after execution, by strangers to the judgment and proceedings, and where the error assigned is in an order of the court disposing of certain funds in their possession accidentally connected with the record.

The creditors should have filed their bill in equity, or stated an issue in due legal form, with proper parties, setting forth the merits of their respective claims, in order to lay the foundation for an appeal or writ of error to this Court.

On 25 July, 1845, a judgment was entered on a bond and warrant of attorney, given by Henry M. Bayard to Israel Lombard and Charles O. Whitmore in the Circuit Court of the United States for the Eastern District of Pennsylvania,

Page 50 U. S. 531

upon which a writ of fieri facias was issued, returnable to April session, 1846, which was returned by the marshal for that district as levied on certain tracts of land, the property of the said Henry M. Bayard, in the County of Lancaster in said district, and which were condemned by the inquisition returned with said writ as not of a clear yearly value beyond all reprises sufficient within the space of seven years to satisfy the debt and damages in the said writ mentioned.

A writ of venditioni exponas was issued, returnable to April session, 1847, upon which the said tracts of land were sold to Ann Caroline Bayard for the sum of $61,200, of which the sum of $60,333.80, being the net amount, after deducting commissions and costs, was agreed to be considered as paid into court.

Upon a motion made on behalf of the Dauphin Deposit Bank to take out of court the amount of the judgment recovered, on 28 August, 1845, by the said bank against the said Henry M. Bayard in the District Court for the County of Lancaster, for $2,500, James Hepburn, Esquire, was appointed by the court, on 7 June, 1847, auditor, to report who are entitled to the moneys so considered as in court, who, on 20 September, 1847, filed his report, which directed that the judgments against the said Henry M. Bayard be paid according to their priority, without regard to the court in which they were recovered.

As this report examines a point of great interest to the profession throughout the United States -- namely the extent of the lien upon real estate which is created by a judgment in the circuit courts of the United States -- and as the report was confirmed by the Circuit Court of the Eastern District of Pennsylvania, it is thought proper to insert it.

"To the Honorable, the Judges of the Circuit Court of the United States for the Eastern District of Pennsylvania."

"The undersigned, the auditor appointed by your Honorable Court, as per certificate annexed, marked A, with instructions to report who are entitled to the moneys in the said certificate mentioned, as being in court, by the agreement of the parties claiming the same, secured by a sale of the property of the defendant, situated in Lancaster County, Pennsylvania, by an execution directed to the marshal of this district, in the suit of Lombard and Whitmore v. Henry M. Bayard in this Court, respectfully reports:"

"That he gave notice to all persons interested in the matter referred to him, by advertisements published for three weeks in the 'Democratic Union' at Harrisburg, and in the 'Pennsylvanian'

Page 50 U. S. 532

at Philadelphia, as directed by the order of court, stated in the said certificate, and as will appear from schedule B, hereto annexed, and that he was attended at the time and place in the said advertisements mentioned, and at the several adjournments of the case, by John M. Read, Esq., who appeared for Lombard and Whitmore, for the use of Haldeman and McCormick; C. B. Penrose, Esq., who appeared for the Middletown Bank; Calvin Blythe, Esq., and W. Harris Esq., who appeared for the Dauphin Deposit Bank; William H. Rawle and William Rawle Esquires, who appeared for R. H. Bayard; and Mr. Wilson, President of the Farmers' Bank of the State of Delaware, who attended on behalf of the said bank."

"The execution above mentioned issued from this Court in this case of Lombard and Whitmore v. Henry M. Bayard, whose real estate in Lancaster County was levied upon and sold by the marshal of this district to Ann Caroline Bayard, on 9 April, 1847, for the sum of $61,200, subject to a mortgage of $18,000, the marshal's deed to which was acknowledged to the purchaser on 15 April, 1847; and the sum of $61,200, the said purchase money, is the sum considered in court, and mentioned in the said certificate marked A, and is the subject of reference to the undersigned."

"A list of the judgments hereto annexed, marked C, will exhibit the several claims upon the fund, which are stated in the said list in the order of their dates respectively. The question for examination respects the liens of these judgments; and if the judgments in this Court are liens upon the lands of the defendant situated in Lancaster County at the time of the sale, then the judgments are to be paid in the order of their dates, as stated in the list; but if the judgments of this Court are not liens on the said lands, then the judgments of Richard H. Bayard, of January 20, 1844, and those of Lombard and Whitmore, of July 25, 1845, and July 29, 1845, are to be postponed as to the fund for distribution."

"The case was submitted to the auditor without argument, and having to depend upon his own research in ascertaining the law involved in the subject of inquiry, the defects that may be apparent in the view of the case now about to be submitted may be the more readily accounted for."

"It would seem that the lien of judgments on the real estate of defendants, obtained in the courts of the United States was for a long time the subject of doubt. The first case in point of date that I have met with is that of Konig v. Bayard, October term, 1829, 2 Paine, decided in the Circuit Court of the United States for the Southern District of New York. In

Page 50 U. S. 533

that case, it was held that the judgment created a lien upon the lands of the defendant, from the time it was docketed, according to the rule in the state courts, and that the lands of a debtor were liable to be taken in execution after they had passed into the hands of a bona fide purchaser by a conveyance subsequent to the judgment and prior to the issuing of the execution, and the principles upon which the judge founded his opinion may have weight in the present case."

"It was held"

"that the liability of lands to execution in the courts of the United States does not arise from any act of Congress expressly making them so liable, but from the operation of the process acts of 1789 and 1792; the state law upon the subject, being thereby adopted, should be considered as also adopting the effect and operation of the judgment as a lien. The repeated decisions in the courts of the United States, although they have not directly decided the point, had proceeded upon the presumption that the lien created by a judgment in the United States courts upon land and the mode of proceeding to obtain satisfaction of the judgments are regulated entirely by the state laws. That Congress, by the process act, adopted both the form and effect of executions as established by the state laws in 1789. That their form and effect in this state [New York] depended upon the state act of 1787, which requires the sheriff to take the goods and chattels of the defendant, and if sufficient cannot be found, then to make the debt and damages out of the land &c., whereof the defendant was seized on the day on which such lands become liable to such debt. That the execution thereupon extends to, and operates upon, the lands of which the defendant was seized on that day, and that this was its effect, which had been adopted by the process act."

"The next case in point of time that I have met with is that of Tayloe v. Thompson, in the Supreme Court of the United States, 5 Pet. 35, decided in a case taken up under the laws of Maryland. It was contended for the plaintiff in error that no statute of Maryland authorized the sale of lands for debt, and that the statute of 5 George II, antecedent to the Revolution, was the only legislation upon the subject. That that statute rendered lands in the Colonies subject to execution as chattels, and this only in favor of British merchants, and no execution having issued upon the lands in question before the title to them passed to the plaintiffs, consequently, as in the case of chattels, no lien attached upon the judgment."

"The Court, in delivering their opinion, said"

" This statute (5 Geo. II) has been adopted and in use in Maryland ever

Page 50 U. S. 534

since its passage as the only one under which lands have been taken in execution and sold. It has long received an equitable construction, applying it to all judgment creditors. As Congress has made no law on this subject, the circuit court were bound to decide the 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 their legislation. The adjudication of their courts, the settled, 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 part of the statute, and as such furnishing a rule for the decision of the federal courts. The statute and its interpretations 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 established usage, the statute 5 Geo. II has been acted on and considered as applying to all judgments in favor of any person, and that sales made under them have been held valid as titles. Though the statute does not provide that the 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."

"And the judge concludes by saying that there was"

"no doubt that the courts of Maryland had decided it as a rule of property from the earliest period, that a judgment is a lien per se on the lands of the defendant."

"And therefore the lien of the judgment in the circuit court was sustained from the date of its rendition."

"In the case of Manhattan Company v. Evertson, 6 Paige 465, the question that bore upon the doctrine of lien depended upon the question whether a judgment in the United States Circuit Court for the Southern District of New York was a lien upon lands lying within the Northern District of the same state, and in delivering his opinion, the Chancellor says --"

" There is no act of Congress making a judgment in a court of the United States a lien on lands, either within the general territorial jurisdiction of the court or elsewhere. The existence of such a lien must therefore depend upon the local law of the state where the land is situated upon which such a lien is claimed."

" By the common law, a freehold could not be reached by a judgment except in the case of an heir, upon a judgment bond or other specialty. The statute of 13 Edward I, which gave the writ of elegit, by which one-half of the land of the judgment debtor might be taken in extent, did not in terms create a lien so as to prevent a sale by the debtor before execution, but the uniform construction of the statute has been to give such a lien from the entry of the judgment upon the lands

Page 50 U. S. 535

which could be reached by the process of the court. And when the British statute of 5 George II, ch. 7, subjected lands in the Colonies to sale on execution, the same principle was adopted in the Colony of New York and in most of the Colonies as to the lien of the judgment upon real estate which might be thus sold, and this lien was held to extend to all freehold lands which could be reached by an execution out of the court in which the judgment was entered. And when a judgment was removed from an inferior into the supreme court and there affirmed, such judgment became a lien upon all lands of the debtor throughout the state from the time of the docketing of the judgment in the supreme court. Such was the state of the law here [New York] at the time of the Revolution."

" The act of 1787, which was substituted in the place of the British statute subjecting lands to execution, recognizes the existence of such lien in the form of the execution which is directed by the statute to be issued against the lands of the debtor, as the sheriff is directed, in case the personal estate is insufficient to pay the judgment and costs, to levy the same on the lands and tenements whereof the judgment debtor was seized on the day the lands become liable, or at any time afterwards."

" And that a judgment of a court of the United States is a lien upon the real estate of the debtor, in accordance with the local law of the place where the land lies, is settled by the Supreme Court. 30 U. S. 5 Pet. 358."

" Upon the principle which has been adopted by Congress and by the Supreme Court of the United States, the legal effect of a judgment as a lien upon the real estate of a defendant, whether such judgment is rendered in a court of the state or in a federal court, where no direction on the subject has been given by the sectional legislature, must necessarily be governed by the local law, although the mode of proceeding to enforce such lien, where it exists, may not be the same in the courts of the state and federal courts. I have no doubt, therefore, that the lien of a judgment recovered in one of the circuit or district courts of the United States within the limits of this state is a lien upon the lands of the debtor lying within the territorial jurisdiction of such court, for the term of ten years from the docketing of such judgment, in the same manner that a judgment of a court of record in one of the state courts is a lien."

" And the only difficulty is in determining whether the lien, according to the true principle of the local law, extends to all lands which may be reached by the execution of the court,

Page 50 U. S. 536

or only to such as are within the territorial jurisdiction to which the original process of such court extends."

"And the Chancellor concluded by saying,"

"but with some hesitation, that a judgment recovered in the circuit court in either of the districts is a lien upon real property lying in any part of the state within which the circuit court is held."

"And he added that if a county court were authorized to issue execution throughout the state, the principle of the local law would extend the liens of the judgments thereafter recovered throughout the state; that such was the construction of Virginia, permitting execution upon a judgment in a local court to be issued to other counties, and cited 2 McCall 186."

"In the case of Konig v. Bayard, heretofore referred to, the same doctrine is held, that the lien of a judgment upon the lands of a defendant existed by virtue of the right to take it in execution and sell it in satisfaction of the debt."

"The case of United States v. Morrison, 4 Pet. 124, was taken up to the Supreme Court of the United States by appeal from the Circuit Court for the Eastern District of Virginia. The Chief Justice, in delivering the opinion, says --"

" In Virginia there is no statute which, in express terms, creates a lien upon the lands of the debtor. As in England, the lien is a consequence of the right to take out an elegit. Different opinions seem to have been entertained of the effect of any suspension of the right. By the construction of the circuit court, the party who sued out a fi. fa. could not resort to an elegit until the remedy on the fi. fa. was shown by the return to be exhausted;"

"that is, that the lien was suspended until the return of the fi. fa., and the adverse right, having attached in the meantime, was preferred to that claimed under the judgment."

"But soon after the judgment in the circuit court and before the case came up to be heard in the supreme court, the Court of Appeals of the state decided that the right to take out an elegit was not suspended by suing out a fi. fa., and consequently that the lien of the judgment was continued pending the proceedings on that writ. And upon the ground of this decision of the Court of Appeals, establishing the law of the state, the judgment of the circuit court was reversed, and the cause remanded, the Chief Justice observing that 'this Court, according to its uniform course, adopts that construction of the act which is made by the highest court of the state.'"

"The above case recognizes the position that where a lien is dependent upon the right to issue execution, and that right is suspended, the lien is suspended also, and is remarkable for the strong expressions used by the Chief Justice in reference

Page 50 U. S. 537

to the deference paid by the courts of the United States to state laws."

"The Supreme Court, in the case of Tayloe v. Thompson, rather assign the local law of the state, recognized in its highest tribunals, establishing the lien of judgments, without special regard to the reasons by which it became established, as the ground of their decisions, and in that case the judgment is held to be a lien per se."

"And in 29 U. S. 4 Pet. 366, the Supreme Court has held that in Kentucky a judgment does not bind land; that the lien attaches only from the delivery of the execution to the sheriff; and in that state, therefore, the right to issue execution does not carry with it a lien upon lands."

"In Ohio, the lien of a judgment is lost if execution is not sued out and levied within a year from its rendition."

"In Tennessee, a judgment of a county court is a lien for one year after its rendition on defendant's lands throughout the state, and prior judgments take precedence of executions. Mart. & Yerg. 26."

"Judgments in the Circuit Court of the United States in the State of Ohio rendered previous to May, 1828, attached as liens upon the lands of defendant throughout the state in virtue of the adoption by that court of the execution laws of the state in the regulation of its practice. Sellers v. Corwin, 5 Ham. 398."

"Here are presented a variety of local laws of different states on the subject of the lien of judgments, some derived from one principle and some from another, and it may be remarked that the statute of George II, the construction of which by the state courts of New York is the ground of the chancellor's opinion above quoted, could have no application to any state formed since the Revolution, and after the states were colonies of Great Britain, to whom in that relation alone it applied. But hence the strong propriety of a broader ground of decision, on the part of the federal courts, to adapt their proceedings to the local laws, and this is comprehended in the view of the Supreme Court, taking the established law of the state as the basis of their judgments in matters of local character. And this ground of decision embraces all states, whatever may be the date of their creation or the peculiarity of their laws, and this, I conceive, is the ground taken in the case of Tayloe v. Thompson, before referred to."

"It is not, however, deemed material in this case whether one principle or the other be adopted, as either will lead, it is believed, to the same conclusion in accordance with the local laws of Pennsylvania. "

Page 50 U. S. 538

"Antecedent to the act of the Pennsylvania Legislature of 1799, a judgment in the supreme court of the state was held to bind the lands of the defendant throughout the state, and the powers of the supreme court were held to be the same as those of the Court of King's Bench in England, and that, the liens of judgments in the latter court being only bounded by its territorial jurisdiction, those of the former had equal extent. That act, however, provided that no judgment of the supreme or circuit court of the state should be a lien on real estate excepting in the county in which such judgment should be rendered. Prud.Dig. 432."

"This is the only act of the Pennsylvania Legislature fixing territorial limits to the lien of judgments."

"There are several acts familiar to everyone fixing limits as to time which, it is conceived, have no bearing on the case, and which therefore call for no special notice. The act of 1798, however, limiting the lien of judgments to five years unless revived by scire facias, having been considered in this Court, and the general argument having, as it is deemed, a bearing upon the question under discussion, will be presently noticed."

"The general doctrine of the lien of judgments has, however, been considered in the case of Krause's Appeal, 2 Whart. 402, in the supreme court of this state. In that case the court said that"

"neither the act of Parliament which subjected lands, sub modo, to the payment of debts nor our acts of 1700 and 1705, which made them liable to be sold absolutely expressly provided that a judgment should be a lien on land. In both countries, however, it was held to bind land. Both there and here, it is expressly assumed by the legislatures of the different countries, and the time when the lien is to commence, and how long it is to continue, and by what proceeding prolonged, are expressly provided by different laws,"

"&c. We may content ourselves with saying, that a judgment is in Pennsylvania a lien on real estate, by acts of assembly, and the nature and extent of the lien are according to the provisions of these enactments."

"In the case of Thompson v. Phillips, 1 Baldwin 273, one of the questions considered by the circuit court was whether the state law of 1798, limiting the lien of judgments on real estate to five years, was obligatory upon the federal courts, and it was held that it was, for a variety of reasons. 'The terms of the act,' it was said, 'extend to all judgments,' in any court of record,"

"within this state and are broad enough to take in those of this Court. Its object is declared to be to prevent

Page 50 U. S. 539

the risk and inconvenience to purchasers of real estate, by suffering judgments to remain a lien for an indifferent time, without any process to continue or revive the same, which applies in whatever courts such judgments are rendered. We cannot consider it as a mere process act; it is a part of a great system of jurisprudence, for the safety and protection of purchasers &c. The questions arising under it are those of property, title, and the rights of purchasers for a valuable consideration. It cannot be doubted that this law should be the rule of decision in a state court, and it is difficult to perceive a reason why a different rule should be adopted in this Court, merely because the plaintiff, being a citizen of another state, may bring his suit here or in the state courts, at his option. Both the courts administer the laws and jurisprudence of the state; the rules of property and title are the same, as well as the modes of transmission by judicial process; all regulated by state laws, there ought to be one uniform course of adjudication upon them. . . . That over the subject-matter Congress possesses no constitutional jurisdiction, nor has, in any manner, assumed its exercise. These are subjects of internal police and state regulation, over which the states have delegated no power to the general government, on which the states can legislate to any extent, and in any manner not prohibited by the constitution of the state or the Union."

"And the judge affirmed that the case came strictly within the thirty-fourth section of the Judiciary Act."

"Although the argument of the court in the above case is applied to a question of limitation as to time, yet it is apprehended that its general doctrines are as applicable to a limitation in reference to territory as to that of time. A restriction imposed upon the lien of a judgment as to territory would enter as fully into questions of property, title, and the rights of purchasers, as that of a restriction as to the period of its duration; and therefore, if the local law is the rule of decision in the one case in the federal courts, no reason is perceived why it should not be in the other."

"But a state legislature can impose no rule upon a federal court, directly or indirectly, that cannot be sustained by the Constitution of the United States. Such legislatures have full power over their own tribunals, where it is not controlled by the state constitution, and they may enact what rules they please for their government within this limit, and if they were to abolish liens on real estate altogether, obtained through the medium of judgments, I apprehend the United States courts, in accordance with the doctrines of the cases quoted, would be

Page 50 U. S. 540

bound by it. But if a state were to restrict the liens of all judgments obtained in courts of record to the counties in which they were recovered, it might well be doubted if the federal courts would be bound by such enactment, literally construed; for, in that case, the lien of a judgment in these courts would be excluded from every county composing the district except that in which the court might be located. This therefore would form a different rule for the federal courts from that which would operate upon the state courts. The rule in the supposed case, it may be observed, can have no reference to locality, as distinct from the jurisdiction intended to be acted upon, and the term 'county,' used in this connection, would be deemed merely a word used to designate the known limits of a given jurisdiction, and would, by applying the rule instead of a particular word to the federal courts, embrace the district. If such would not be the construction, there would be no uniformity of decision between the federal courts and those of the state, and the evils pointed out in the case in 1 Baldwin 273, as likely to arise out of a collision between the state and federal tribunals would be without remedy. The state laws cannot be made to have any special and direct bearing upon the United States tribunals. The latter merely administer the laws of the state as they find them, and because they are the laws of the state; but a law that would operate upon a federal court exclusively, so as to restrain its action or the efficacy of its judgments beyond the restraints imposed upon the state courts, could scarcely be called a state law, and it might well be doubted if there would be any obligation upon the federal courts, either under the thirty-fourth section of the Judiciary Act, or any acknowledged principle, to observe its provisions. This is, however, supposing a difficulty that does not exist."

"But it appears that Congress has legislated upon the subject of liens so far as to designate the period when liens on judgments shall cease. By the Act of July, 1840, c. 20, § 4, it is provided,"

" That judgments and decrees thereafter rendered in the circuit and district courts of the United States within any state shall cease to be liens on real estate or chattels real in the same manner and at like periods as judgments and decrees of the courts of such state now cease by law to be liens thereon."

"These words may be broad enough to comprehend liens in either relation, as regards territory or duration, but the word 'now' used in the act, according to the construction given to the Process Act in the federal courts, would confine its action to the state of things in the several states to which it refers as existing at the time of its passage. "

Page 50 U. S. 541

"However this may be, the act clearly recognizes the existence of liens on judgments in the federal courts, and as it requires that they shall cease in conformity to the state laws, it is just to infer that, in the contemplation of Congress, they exist in conformity to the same laws, and in this recognizing the doctrine held by the courts."

"The foregoing decisions have a bearing on the case under consideration too obvious to call for any remark, and what remains to be said may therefore be said very briefly."

"As regards Pennsylvania, the statute of 5 George II was never in force that I can ascertain. The act of 1705, passed by the local legislature, was in existence, and had been for several years before the passage of the former act, and superseded it. No local laws existing in the colonies of New York, Virginia, Maryland, and others, the British statute became the law, and the construction it received varied more or less in the several jurisdictions. How far the doctrine of lien, as it grew up in Pennsylvania, was dependent upon the construction given in England to the statute of 1 Edward I, which gave the writ of elegit, I am not able to trace. But that a judgment in Pennsylvania has been uniformly held to be a lien per se, liable to no suspension or interruption from any cause short of satisfaction, or its equivalent in law, for a very long time, admits, I think, of no doubt."

"We therefore find that the judgments of courts of record of the several states have liens attached to them binding real estate, but having their origin in different sources, and therefore varying in their effects, and that the local law is universally adopted in the federal courts in the decision of local questions, and especially those having connection with real estate, and that the grounds upon which the local laws have been adopted have varied. In Ohio, judgments of the federal courts are held to be liens because these courts have adopted the execution laws of the state. In New York, Virginia, and other states because of the operation of the Process Act, and in Maryland because a judgment is a lien per se."

"Is Pennsylvania an exception to this otherwise universal rule? The only statutory limitation of the liens of judgments in Pennsylvania, as regards territory, is the act of 1799, which has been heretofore referred to, and that act is confined in its operation expressly to the supreme and circuit courts of the state, and cannot be extended by any construction so as to affect such liens on the judgments of any other courts."

The case of White v. Hamilton held the doctrine that the lien of judgments in the supreme court extended throughout

Page 50 U. S. 542

the state, because the jurisdiction of the court was thus extensive. The same rule has been adopted with regard to all other courts of record of the state, without any special legislation, in reference to the subject of liens, but as an incident to the jurisdiction. In all the county courts, there is no other reason perceived why judgments obtained in them are liens throughout the county but the fact that their jurisdiction extends throughout the county. The mere act of creating a court of record and specifying the limits of its jurisdiction by state authority extends the liens of judgments throughout these limits, and the application of the same rule to the circuit courts of Pennsylvania must, in accordance with received principles, be attended with like results.

"If this is not the rule in the case under consideration, what is the limit as to territory of the lien of a judgment in the federal courts of this state? That a lien of some extent attaches upon such judgment has been shown by the authority of decided cases and by fair inference from acts of Congress. What, then, is its territorial extent? Philadelphia County, where this Court holds its sessions, is no more specially within its jurisdiction than Lancaster County, or Berks, or Northampton, or any other county of the district. They are all alike and equally within the territory assigned to the jurisdiction of the court, and to every intent and purpose are equally within its judicial action, and the same cause of argument that would go to exclude the lien of a judgment of this Court from Lancaster County would exclude it from every county of the district -- or in other words would extinguish it."

"Nor is it readily perceived how a lien on land can be obtained in Pennsylvania through judicial action unless it attach upon a judgment. In 1 Baldwin 268, the judge, in distinguishing between the effect of an execution, in its operating as a lien on real or personal estate, says --"

" As to land, the lien attaches by the judgment, and remains though no levy be made. The sheriff has no right to take possession or to enter upon it to make a levy, and after levy, he has neither the right of possession, of property, or power to sell an estate of freehold in defendant, if the property be improved,"

"&c. So in 26 U. S. 1 Pet. 386 it is held that"

"the lien by a general judgment on land gives the right to levy on the same, to the exclusion of adverse interests, and such levy, when made, relates back to the time of the judgment."

"If land can only be levied by virtue of the lien obtained through the judgment, then the existence of the lien is necessary to sustain the levy, and if the doctrine be true that no

Page 50 U. S. 543

lien attaches upon a judgment of this Court, or that such lien does not extend to Lancaster County, then was there nothing to sustain the execution on which the land was sold, and the money raised, which is now the subject of controversy, and the whole proceedings in that connection are void."

"And it may be added that all the reasons alleged for adopting the local law of lien by the federal courts apply to judgments in this case. For, 1st, the courts have adopted the execution laws of this state, as fully as in Ohio, where this is the ground alleged for adopting the lien law of that state; 2d, the Process Act applies as entirely to Pennsylvania as to New York and Virginia; and, 3d, a judgment in Pennsylvania is as much a lien per se, and forms a rule of title and property in this state, as in Maryland, and is therefore within the provisions of the thirty-fourth section of the Process Act, which is the reason assigned for adopting the lien law of the latter state."

"The auditor therefore is of opinion that the authorities quoted sustain the position that a judgment of this court is a lien upon the lands of the defendant in Lancaster County, and therefore that the judgment creditors having prior liens are entitled to the fund in court, after payment of the costs and expenses upon the judgments as far as they may be covered by the fund, and the expenses of this reference. The judgments to be paid according to their priority, without regard to the court in which they were recovered, as follows, to-wit:"

1845, June. Judgment in the District Court of

Lancaster County in favor of the President,

Directors, and Company of the Bank of Pennsylvania,

entered at December Term 1841, revived to June

term, 1845, for . . . . . . . . . . . . . . . . . . . $24,100.00

Interest to 9 April, 1847, the day of sale.

1844, Jan. 20. Judgment in the Circuit Court of

the United States for the Eastern District of

Pennsylvania, in favor of Richard H. Bayard,

Jan. 20, 1844. Judgment for. . . . . . . . . . . . . $17,188.00

Interest to 9 April, 1847, the day of sale.

1845, July 25. Judgment of Lombard and Whitmore,

in the same court. Judgment obtained July 25,

1845, for . . . . . . . . . . . . . . . . . . . . . . $24,104.57

Interest to 9th April, 1847, the day of sale.

1845, July 29. Judgment in favor of the same

plaintiffs, in the same court. Judgment obtained

July 29, 1845, for. . . . . . . . . . . . . . . . . . $10,000.00

1845, Aug. 26. Judgment in favor of the Bank of

Page 50 U. S. 544

Middletown, in the District Court of Lancaster

County, August 26, 1845

1845, Aug. 28. And another judgment in favor of

the same plaintiff, in the same court, obtained

August 28, 1845.

The amount due on both the above judgments, as

ascertained by the parties, is. . . . . . . . . . . . $26,550.47

But from this amount must be deducted any interest

allowed in the settlement of the amount, between

9 April and 9 July, 1847, on which last-named day

the settlement is dated.

1845, Aug. 28. Judgment in favor of the Dauphin

Deposit Bank, in the District Court of Lancaster

County, obtained 28 August, 1845, for . . . . . . . . $ 2,500.00

Interest to 9 April, 1847.

1845, Aug. 30. Judgment in favor of the President,

Directors, and Company of the Farmers' Bank of the

State of Delaware, obtained in the Court of Common

Pleas of Lancaster County, for $12,000.00

Judgment obtained August 30, 1845.

Interest from August 30, 1845, to 9 April, 1847.

"All of which is respectfully submitted."

"JAMES HEPBURN, Auditor"

Afterwards, on the same day, exceptions to the auditor's report were filed, which exceptions are in the words following, to-wit:

"On behalf of the Bank of Middletown and the Farmers' Bank of Delaware, we except to the report of the auditor in this case on the ground that the auditor has erred in deciding that the judgments rendered in this court are a lien on the lands of the defendant in Lancaster County, Pennsylvania, and in awarding the proceeds of the sale of such lands to said judgments, to the exclusion of the judgments of record in the courts in Lancaster County."

"B. H. BREWSTER"

"CHARLES B. PENROSE"

"Attorneys for Bank of Middletown"

"and Farmer's Bank of Delaware"

"George W. Harris excepts to the report of the auditor in the case above referred to in awarding the money in dispute

Page 50 U. S. 545

in the said case, to the judgments obtained in the circuit court against Henry M. Bayard, instead of the judgment of the Dauphin Deposit Bank against the said Henry M. Bayard, in the District Court of the County of Lancaster, the same being No. 135 of June term, 1845."

"GEORGE W. HARRIS"

"Attorney for the Dauphin Deposit Bank"

"September, 20, 1847"

On the 11th of October, 1847, the exceptions were argued and overruled by the court. The report was confirmed, and distribution ordered in accordance therewith.

The counsel for the Bank of Middletown then moved the court to allow the entry of an appeal from the order of the court distributing the proceeds of the execution in this case, which motion, after the hearing of counsel, was overruled by the court.

The counsel then filed an affidavit, made by Simon Cameron, the cashier of the bank, that the appear was not intended for delay, and caused Simon Cameron and Alexander Cumming to enter into a recognizance for the prosecution of the appeal with effect. The following note was attached to it by the presiding judge, viz.:

"N.B. The above affidavit and recognizance have been sworn and acknowledged before me, at the request of counsel, valeant quantum valeant, the court having previously refused, on motion of said counsel, to allow an appeal on the ground that the party offering to appeal was not entitled to such remedy."

"October 30, 1847 R. C. GRIER"

On 15 November, 1847, Mr. Penrose moved that a final decree or order be entered, which motion was overruled by the court.

On 17 November, 1847, the following praecipe for a writ of error was filed, viz.:

"HENRY M. BAYARD, a Citizen of Pennsylvania, Plaintiff in error, v. ISRAEL LOMBARD and CHARLES O. WHITMORE, Citizens of Massachusetts &c., Defendants in error."

"Sir -- Issue writ of error to the Circuit Court of the United States for the Eastern District of Pennsylvania, to remove the record and proceedings in the suit or action wherein the said Israel Lombard and Charles O. Whitmore, citizens of the State of Massachusetts, co-partners under the firm of Lombard and

Page 50 U. S. 546

Whitmore &c., are plaintiffs, and Henry M. Bayard, a citizen of the State of Pennsylvania, is defendant, No. 28, April session, 1845, including all the final process issued therein, and the proceedings thereupon, and particularly the decree of the said circuit court making distribution of the money raised by the sale of the real estate of the defendant, the said Henry M. Bayard, and also the costs taxed therein, the appeal therefrom, the exceptions filed thereto, and the order of the court thereupon."

"Nov. 17, 1847"

"B. H. BREWSTER"

"CHAS. B. PENROSE"

"Att'ys for Plaintiff in error, and of"

"the Bank of Middletown, and the Farmers'"

"Bank of the State of Delaware"

"GEORGE PLITT, ESQ., Clerk of Circuit Court United States, E.D.P."

An affidavit and recognizance were filed on behalf of the Bank of Middletown, to which a memorandum was attached, similar to the one just mentioned.

Upon the writ of error thus issued, the case came up to this Court. The following assignment of errors was filed.

"Errors Assigned"

"1. The court erred in confirming the report of the auditor in this case, and in ordering distribution according to that report."

"2. The court erred in ordering distribution of the fund raised by the sale of real estate, in Lancaster County, to be made to judgments entered of record in the said circuit court, in the County of Philadelphia, instead of to the judgments in favor of the Bank of Middletown and the Farmers' Bank of Delaware, respectively entered of record in the County of Lancaster, which were liens on the land sold."

"3. The court erred in assuming jurisdiction to make an order for the distribution of the fund, raised by the sale of the real estate of the defendants below, among the judgment creditors of the defendants, some of such creditors having judgments of record in the state courts of the County of Lancaster, and in refusing to the Bank of Middletown, one of these creditors, an appeal to the Supreme Court of the United States, under the Act of the General Assembly of the Commonwealth of Pennsylvania passed 16 April, 1827, entitled 'An act relative to the distribution of money arising from sheriffs' and coroners' sales,' &c., which gives such jurisdiction to state courts."

"4. The court erred in overruling the exceptions to the costs

Page 50 U. S. 547

taxed by the clerk of the court, and in allowing the sum of two hundred and fifty dollars to the auditor, and a commission to the clerk on money not deposited in court, amounting to the sum of _____, to be deducted from the fund."

"5. The court erred in refusing to enter a final decree in the case."

"Filed 7 January, 1848. "

Page 50 U. S. 548

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