Clements v. Berry
52 U.S. 398

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U.S. Supreme Court

Clements v. Berry, 52 U.S. 11 How. 398 398 (1850)

Clements v. Berry

52 U.S. (11 How.) 398

Syllabus

Where the marshal of the United States had levied an execution upon certain property under a judgment in the circuit court, which was taken out of his custody by a writ of replevin issued by a state court, and the supreme court of the state decided adversely to the claim of the marshal, it is within the jurisdiction of this Court to review that decision.

It is the uniform practice of the federal and state courts in Tennessee to test executions as on the first day of the term, and as between creditors, the lien attaches equally to all the judgments entered at the same term.

Where a judgment by default in an action upon a promissory note was entered upon the 8th day of the month, but not fully entered up as to the amount due until the 10th, and upon the 10th, a few minutes before the court opened, the debtor recorded a deed of trust conveying away all his property, this deed cannot defeat the lien of the judgment.

The judgment by default created the lien; it was a mere clerical duty to calculate and enter up the amount due.

To note the precise time when deeds are left for record is attended with no difficulty as between deeds, but to settle the exact comparative creation of a lien between a recorded deed and a judgment by a court is attended with much embarrassment. The timepiece of the register cannot settle the validity or invalidity of a judgment lien.

The process act of 1828, passed by Congress, refers to state laws for the creation and effect of liens, but the preparatory steps by which they are created depend upon the rules adopted by the United States courts.

Clements, the plaintiff in error, was the Marshal of the United States District of Middle Tennessee.

The action was a replevin brought by Berry against Clements in the Circuit Court of Davidson County, Tennessee (state court), and upon the trial in that court the following statement of facts was agreed upon.

"DANIEL BERRY v. J. B. CLEMENTS"

"Replevin -- Circuit Court, Davidson County"

"In this case the defendant comes and defends the wrong and injury, when &c., and says he is not guilty in manner and form as the plaintiff in declaration hath alleged, and of this he puts himself on the country, and the plaintiff also, and the following facts are agreed upon between the parties:"

"On 20 January, 1848, William H. Inskeep, Albert Moulton, Edward D. Woodruff, and John Sibley, citizens of the State of Pennsylvania trading in partnership under the firm Inskeep, Moulton & Woodruff, brought an action of debt against Charles F. Berry, a citizen of the State of Tennessee and resident of Nashville, in the Circuit Court of the United States for the District of Middle Tennessee, upon several notes of

Page 52 U. S. 399

hand executed by said Berry, payable to said Inskeep, Moulton & Woodruff; the writ and copy of the declaration was served by the marshal upon the said Charles F. Berry on 20 January, 1848. The writ was returned to the court with the declaration at March term, 1848, and the following entries were made on the rule docket and minutes, as by the copy hereunto annexed, and made part of the case agreed, marked A: Inskeep, Moulton & Woodruff, debt, 20 January, 1848, executed and delivered defendant a copy of declaration. Declaration filed March 1, 1848; ruled for plea by 8 March; no plea being filed by attorney, takes judgment by default. Circuit Court of United States, Middle Tennessee District. Thursday, March 9, 1848, court adjourned until tomorrow morning, 10 o'clock. Friday, March 10, 1848, court met according to adjournment. William H. Inskeep, Albert Moulton, Edward W. Woodruff, and John Sibley, trading under the firm of Inskeep, Moulton & Woodruff v. Charles F. Berry. The plaintiffs appear by their attorney, and a judgment by default having been taken in this cause on 8 March, 1848, and no motion having been made to have the same set aside, it is therefore considered by the court that said judgment by default be affirmed and that the plaintiffs recover against said defendant $1,316.68, their balance of debt in the declaration mentioned, and the further sum of $44.22, their damage sustained by reason of the detention thereof, and their cost in this behalf expended, and that execution issue. Session of court commenced on 6 March, 1848. A true copy. J. McGavock, clerk, by G. M. Fogg, deputy. Berry's deed received at register's office 51 minutes after 9, on 10 March. Inskeep & Co. Judgment obtained about half-past ten o'clock same day."

"The said circuit court of the United States commenced its session on Monday, 6 March, 1848. On 10 March, 1848, Charles F. Berry, the debtor, executed a deed of trust to the plaintiff in this cause, a copy of which is hereunto annexed, and made a part of this case agreed: "

" Know all men by these presents that I, Charles F. Berry, of the County of Davidson and State of Tennessee, of the one part, and Daniel Berry, of the county and state aforesaid, of the other part, witnesseth that I, the said Charles F. Berry, for and in consideration of the sum of $5, to me in hand paid by the said Daniel Berry, and the other consideration hereinafter mentioned, hath this day bargained, sold, transferred, and conveyed, and do by these presents bargain, sell, transfer, and convey, to the said Daniel Berry all my stock of dry goods of every description and all sorts of ware now in

Page 52 U. S. 400

the storehouse occupied by me on the public square in Nashville, and also in a storeroom occupied by me in Nashville, amounting together to the sum of about $12,000, as per invoice book made out this day; three horses, one negro man slave, named Abraham, one buggy, all my accounts of every description, and the book containing the same; all the notes &c., that are due me, and also my interest, whatever it may be, in the unsettled business of the firm of A.D. & C. F. Berry; also, all the interest I have in and to the following-described lots or pieces of ground, viz., lots No. 5 and 6, as described in a plat made by C. W. Nance, of lots adjacent to the town of Nashville, on Cherry Street, fronting thirty feet each on Cherry, and also lots A and B, in No. 20, in the plan of South Nashville, and lots No. 3 and 4 adjoining F. B. Fogg's lot on Cherry Street. To have and to hold said property, of every description to the said Daniel Berry, his heirs and representatives forever. I, the said Charles F. Berry, bind myself, my heirs and representatives to warrant and defend the title to the same, or any part thereof, to the said Daniel Berry, his heirs and assigns, against the lawful claims of all persons whomsoever. But this deed is made for the following use and trust, and for no other purpose -- that is to say that the said Daniel Berry and A.D. Berry are my accommodation endorsers on the notes, most of them, embraced in schedule A, and whereas I am anxious to secure them, and also the payment of all the claims therein specified, to the persons to whom said claims are due, and also to secure the claims specified in the schedule B to the person therein named, which schedules are to be registered with this deed. Now if I, the said Charles F. Berry, shall well and truly pay off and satisfy said debts mentioned in schedules A and B on or before 1 December, 1849, then this deed to be void, but if I shall fail to do so, then the said Daniel Berry shall sell whatever remains of said property upon such terms as will be most for the interest of the creditors and apply the proceeds to the payment first, of the debts mentioned in schedule A, until they are all paid and satisfied, and secondly to the payment of the debts mentioned in schedule B, if there shall be enough after paying the expenses of executing this trust; if not, to make a pro rata distribution of the proceeds amongst them. In order to make it more certain that said debts shall be paid within the time specified, I hereby authorize the said Daniel Berry, as trustee, to take immediate possession of all the above-described property, and that he may proceed to sell the same upon such terms as will make it yield the most money, and that he take possession of all my books of accounts, notes &c.,

Page 52 U. S. 401

and proceed to collect the debts due me as speedily as he can, and to apply the proceeds of the goods and property, and the money collected by him, to the payment of the debts in the order above specified; but that he shall not be forced to make a general sale of said property, goods &c., until the expiration of said time."

" In testimony whereof, I, the said Charles F. Berry, have hereunto set my hand and seal, this 10 March, 1848."

"C. F. BERRY"

" State of Tennessee, Davidson County"

" Personally appeared before me, Robert B. Castleman, clerk of the county court of said county, the within-named C. F. Berry, the bargainer, with whom I am personally acquainted, and who acknowledges that he executed the within deed of trust for the purposes therein contained."

" Witness my hand at office, this 10 March, 1848."

"R. B. CASTLEMAN"

"State of Tennessee, Davidson County"

"Register's Office, March 11, 1848"

" I, William James, register of said county, do hereby certify that the foregoing deed of trust and certificate are duly registered in my office, Book No. 10, pages 574, 575, and that they were received March 10, 1848, 9 51/60 o'clock, A.M., and entered in Note Book 2, page 20."

"WILLIAM JAMES"

"And the same was lodged for registration in the register's office, at the time mentioned in the memorandum upon said deed, on 20 March, 1848; an execution, being a writ of fieri facias, issued upon said judgment, and came to the hands of the marshal on 21 March, and by him, on 24 March was levied upon the goods, wares, and merchandise particularly specified in the levy, a copy of which is hereunto annexed, marked C, together with the return of the marshal."

"The President of the United States to the Marshal of the Middle District of Tennessee, greeting: "

"You are hereby commanded, that of the goods and chattels, lands and tenements, of Charles F. Berry, in your district, you cause to be made $1,379.85, which William H. Inskeep, Albert Moulton, Edward W. Woodruff, and John Sibley, trading under the firm of Inskeep, Moulton & Woodruff, in the Circuit Court of the United States for the Eighth Circuit, in the Middle

Page 52 U. S. 402

District of Tennessee, recovered against him for balance of debt, damages, and cost, in a certain action of debt in the said court, lately determined, wherein the said Inskeep, Moulton & Woodruff were plaintiffs and said Charles F. Berry was defendant, whereof said defendant is convicted, as appears of record, and have the said money ready to render before the judge of our said court at Nashville on the first Monday in September next; herein fail not, and have then and there this writ."

"Witness the Honorable Roger B. Taney, Chief Justice of the Supreme Court of the United States, this first Monday in March, A.D. 1848, and in the seventy-second year of our independence."

"JACOB McGAVOCK, Clerk"

"Issued March 20, 1848; came to hand 21 March, 1848; levied this fieri facias upon the following goods, wares, and merchandise, as the property of Charles F. Berry, this 24 March, 1848. Then follows a long list of goods of several pages, specifying each article, item by item, amounting in all to the sum of $2,549.11; the prices annexed to the foregoing list of goods were the invoice prices as furnished by the defendant, but the defendant and myself not agreeing as to the present value of the goods, we called in the following persons, merchants of Nashville, to-wit, John B. Johnston, C. Connor, B. F. Shields, and A. J. Duncan, who valued the goods to be worth $1,402, or 55 cents in the dollar upon the invoice prices."

"J. B. CLEMENTS"

"Marshal of the U.S. district of Middle Tennessee"

"The sale of said goods, wares, and merchandise was stopped by a writ of replevin from the Circuit Court of Davidson County, sued out at the instance of Daniel Berry, against me, as marshal; which writ was executed upon me by the Sheriff of Davidson County, on 4 April, 1848, and the goods delivered up to said Daniel Berry, by the advice and consent of the plaintiff's attorneys. September 4, 1848."

"J. B. CLEMENTS, M.M.D.T."

"A true copy J. McGAVOCK, Clerk"

Marshal's fees, commissions on the amount of this

execution, by G. M. Fogg, deputy, say on $1,360.90,

at 2 1/2 percent . . . . . . . . . . . . . . . . . . $34.02

Serving this fieri facias. . . . . . . . . . . . . . 2.00

------

$36.02

These goods were in the store of Charles F. Berry, and had

Page 52 U. S. 403

not been removed therefrom, but Daniel Berry, the trustee, was at the store at the time of the levy, and stated that the said Charles F. was his agent, and the trustee claimed the goods as included in the deed of trust; the goods levied upon were taken possession of by the marshal, and after the writ of replevin was served, they were delivered up by the marshal to Daniel Berry; the goods, wares, and merchandise levied upon were, before the execution of the deed of trust aforesaid, the property of Charles F. Berry. If, upon the above facts, the law is with the plaintiff, then judgment is to be rendered for him, with costs; if for the defendant, the marshal, then judgment is to be rendered for him against the plaintiff and his security, for the amount of the judgment in the federal court; interest and cost as taxed by the federal court.

"F. B. FOGG, for Defendant"

"EWING & WHITWORTH, Attorneys for Plaintiffs"

Upon this agreed state of facts, the Circuit Court of Davidson County were of opinion that the law was with Clements, the defendant, and gave judgment accordingly. Berry carried the case to the Supreme Court of Errors and Appeals of Tennessee, where the judgment of the circuit court was reversed. Clements sued out a writ of error under the twenty-fifth section of the Judiciary Act, and brought the case up to this Court.

Page 52 U. S. 408

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