From a decree of the circuit court awarding a fund of $6,000 to
one claiming under a distinct title, the grantee in a deed of trust
to secure debts to various other persons exceeding that amount in
all, but of less than $5,000 each, may appeal to this Court.
A judgment duly recovered is not affected, nor the right to take
out execution upon it impaired, by an application made to the court
to set it aside and "continued until the next term, without
prejudice to either party."
All the proceedings under a levy of execution have relation back
to the time of the seizure of the property.
A levy of execution for a debt of the lessee upon the leasehold
estate and upon a cotton press, with its engine, boilers and
machinery, erected by him, under which the officer has seized the
property and given due notice of a sale thereof, is not defeated by
an order from the clerk, under seal of the court pursuant to a
direction of the judge in vacation, without notice to the judgment
creditor, requesting the officer to return the execution
unexecuted, nor by the officer's, upon receiving such order,
ceasing to keep actual possession of the property and returning the
execution, with his doings endorsed thereon, to the court for
MR. JUSTICE GRAY delivered the opinion of the Court.
This is an appeal by the grantee in a deed of trust from a
decree of the Circuit Court of the United States for the
Page 110 U. S. 265
District of Tennessee in favor of a judgment creditor of the
The undisputed facts of the case, as shown by the pleadings and
the documentary evidence, are as follows:
In January, 1878, the owners of two lots of land in the City of
Memphis County of Shelby, and Tennessee, executed to R. C. Daniel a
lease thereof for the term of six years at a certain rent, and with
a provision that any improvements or machinery made or erected by
the lessee might be removed by him at the end of the lease. Steers
and Morse, under a contract with Daniel, erected upon the land a
cotton press, engine, boilers, and machinery, and on August 8,
1878, filed the original bill in this case against him, in the
Chancery Court of Shelby County, to enforce a mechanic's lien,
under the statutes of Tennessee, upon his leasehold interest in the
land and upon his interest in the press and machinery, and obtained
a writ of attachment against the same.
On June 6, 1878, A. H. H. Dawson duly recovered against Daniel
two judgments at law upon default in the circuit court of the
United States, amounting together to the sum of $5,629.91. At the
same term, on June 13, an application was made by Daniel to vacate
each of those judgments, and was "continued until the next term of
the court, without prejudice to either party." On July 5, writs of
upon both the judgments were issued by the
clerk and delivered to the marshal. On July 9, the marshal, as
appears by his endorsement thereon, levied each of these executions
upon Daniel's interest in the land (particularly described), and
upon all his interest
"in and to the chattel property in, about and upon the foregoing
described lots and parcels of land, consisting of a Morse improved
Tyler cotton compress, with engines, boilers, machinery, etc., with
all appurtenances thereto belonging,"
and afterwards published and posted, and served upon Daniel, as
required by law, notices of a sale to be made on August 8 in
pursuance of the levy. On August 5, the circuit judge sent to the
clerk the following letter:
Page 110 U. S. 266
"KNOXVILLE, TENNESSEE, August 5, 1878"
"My DEAR SIR: I have been furnished by Messrs. Gantt &
Patterson, attorneys for Mr. R. C. Daniel, with certified copies of
the record in the suits of A. H. H. Dawson v. Daniel, pending in
your court. From this, as I construe it, judgments by default were
rendered at the last term, and then an application made to set
aside said judgments and permit defendant to plead, which
application was continued to next term of the court. This leaves
these cases pending and undetermined. Yet Messrs. Gantt &
Patterson, for their client, represent that executions have been
issued and levied on Daniel's property. If this is so, the
executions are without authority, and ought to be called in as
improvidently issued. There is no final judgment on which they can
rest. My suggestion is that you issue a paper to the marshal
reciting the fact that executions were issued without authority,
and request him to return the same unexecuted."
"I am, very truly, &.,"
"Bell W. Etheridge, Esq."
"U.S. Circuit Clerk, Memphis, Tenn."
On August 7, the clerk delivered to the marshal a paper headed
"Circuit Court of the United States for the Western District of
Tennessee," with the names of the cases and their numbers on the
docket, and the rest of which was as follows:
"To the United States Marshal, Western District of
"In accordance with the instructions of Judge Baxter,
communicated by letter, a copy of which is hereto attached, I
notify you that the executions in the two above named cases were
issued without authority, and request you to return the same
unexecuted. You will therefore act accordingly."
"Witness my signature, and the seal of said court, this, the
seventh day of August, 1878."
"[Seal] BELL W. ETHERIDGE, Clerk"
The marshal's return upon each execution, after stating the levy
and notice, concluded as follows:
"And on 17th August, 1878, in obedience to an order of court
issued by Hon. John Baxter, I return this writ without further
Page 110 U. S. 267
The Coroner of Shelby County thereupon, on the same day, took
possession of the property under the writ of attachment issued upon
the bill in equity of Steers and Morse.
On November 22, Daniel executed a deed, which was recorded on
the next day, of his interest in the leasehold and in the cotton
press, with its engine, boiler, machinery, and appurtenances, to
John J. Freeman, in trust to secure, and to sell for the payment
of, debts due from Daniel to various persons, in sums of $6,000 or
less, and amounting in all to the sum of $18,370, for moneys
borrowed by Daniel to pay for the leasehold and fixtures.
The circuit court, at a regular term on January 6, 1879, denied
the applications of Daniel to vacate the judgments at law, and on
February 8 granted motions of Dawson for writs of venditioni
On February 10, such writs were issued accordingly,
which recited that
"Said writs of fieri facias
have been returned without
any sale of the property levied on as aforesaid, which levies this
court now adjudges as still in full force and unabandoned by the
marshal, and the property so levied on is still in his possession
by virtue of said levies."
The opinions delivered on the applications and motions are
reported in Dawson v. Daniel,
2 Flippin 301, 305.
The returns subsequently made by the marshal upon the writs of
show that upon receiving them, he went
upon the land and found the cotton press being operated by and
under the control of Charles Yerger, who claimed to be in
possession, in behalf of the sheriff and coroner, under an order of
the Chancery Court of Shelby County; that he exhibited his writs of
and demanded of Yerger possession of
the property, which was refused; that he was thereupon directed by
the attorneys for Dawson to proceed under those writs to a sale of
the property, and gave notice to Daniel of such a sale to take
place on March 11, and that on February 12, those attorneys
"directed that all proceedings hereunder be suspended until further
orders in the premises." On February 13, Steers and Morse filed in
the suit in equity an amended and supplemental bill against Dawson,
Page 110 U. S. 268
trustee, and the beneficiaries under the trust deed, and on
February 15 removed that suit into the circuit court of the United
States, and there moved for a temporary injunction to restrain
Dawson and the marshal from further proceeding against the property
under the judgments and executions at law. On March 18, that court
issued such an injunction and ordered, with the consent of all the
"that the custody and possession by the marshal of said property
shall remain as it is, undisturbed, and that for the preservation
of the property he may employ a day and night watchman for the
same, but without in any manner affecting the rights or claim of
any party hereto, and nothing herein contained shall be held in any
manner to affect or release any lien that the defendant Dawson
claims to have acquired under his said judgments, executions, and
On June 2, the marshal returned the writs of venditioni
"without further proceedings."
On June 13, 1879, after answers filed by Dawson and answers and
cross-bills filed by Freeman and the beneficiaries under the trust
deed, the suit in equity came to a final hearing in the circuit
court, and a decree was entered by consent ordering and confirming
a sale of the leasehold and of the press and machinery,
establishing the priority of the lien of Steers and Morse, and
applying to the satisfaction of that line, and to the payment of
the accrued rent and taxes, the proceeds of the sale, except the
sum of $6,000, which was reserved to abide the result of the
litigation between Dawson and Freeman. And on July 28, 1880, a
final decree was entered affirming the validity of the judgments
and executions and awarding the fund of $6,000 to Dawson. The
opinion is reported in Steers v. Daniel,
2 Flippin 310.
Freeman thereupon appealed to this Court.
By the marshal's deposition and the weight of the whole
evidence, the other material facts in the case appear to be as
The marshal, on July 9, 1878 at the time of levying the
executions issued upon the judgments at law, and with the consent
and at the expense of Dawson's attorneys, put a watchman in
possession of the premises to protect the property
Page 110 U. S. 269
against fire and depredation, and on August 8 showed the letter
of the circuit judge, and the paper received from the clerk, to
Dawson's attorneys, and was told by them that actual possession was
not required by law to maintain the levies, and thereupon by their
direction withdrew the watchman, knowing that the coroner was about
to levy the attachment granted by the state court on the bill in
equity of Steers and Morse, and the marshal did not afterwards
retain possession in fact of the property. But he did not intend to
abandon the levies, and he suspended further proceedings merely in
obedience to the order received from the clerk, and for the purpose
of submitting to the court the question of the validity of the
executions and levies.
The appellee has moved to dismiss the appeal for want of a
sufficient amount in controversy to sustain the jurisdiction of
this Court. The reason assigned for the motion is that if the
appellant's position is maintained, no one of the creditors secured
by the trust deed will receive so much as $5,000 out of the fund of
$6,000 in court. But it is admitted that the whole amount of debts
secured by the deed of trust exceeds that fund. The sole question
at issue on this appeal is of the legal title to the whole fund, as
between Dawson, the judgment creditor, on the one hand, and
Freeman, the grantee in the deed of trust, on the other, and no
question of payment to or distribution among the several
cestuis que trust
is presented. The motion to dismiss must
therefore be overruled. Ex Parte Baltimore & Ohio Railroad
Co., 106 U. S. 5
cases there cited.
Upon the merits, the priority of the mechanic's lien having been
established by the circuit court with the consent of the parties,
the single question is whether the title of Dawson, under the
judgments rendered against Daniel and the executions levied on the
property, is to be preferred to the title of Freeman under the deed
of trust to him from the judgment debtor. The judgments were duly
recovered. The filing of applications to set them aside did not
affect the validity of the judgments nor suspend the right to take
out executions thereon. The continuance of those applications to
the next term, "without
Page 110 U. S. 270
prejudice to either party," left both parties in statu
the applications of the judgment debtor to set aside the
judgments undetermined, and the right of the judgment creditor to
enforce the judgments unaffected.
The levies were duly made by the marshal and endorsed by him on
the executions. The law of Tennessee, following the rule
established in the colonies by the English statute of 5 Geo. II. c.
7, § 4, authorizes real estate, as well as personal property, to be
levied upon and sold under a writ of fieri facias.
Tennessee § 2999; Russell v. Stinson,
3 Haywood 1;
Pillow v. Love,
5 Haywood 109.
The action of the circuit judge in directing the recall of the
executions in vacation out of court without notice to the judgment
creditor was irregular and unauthorized, and of no legal validity.
The levy of an execution takes effect from the time when it is made
by seizing the property, and is not defeated by a subsequent writ
of supersedeas, but all the proceedings, by sale or otherwise, in
the due course and completion of the levy, for collecting the debt
out of the property, have relation back to the time of the seizure.
6 Pet. 648, 31 U. S. 659
United States v.
3 Wall. 688; Batedorff v. Focht,
44 Penn.St. 195; Bond v. Willett,
31 N.Y. 102; Capen
13 Allen 262.
By the common law, a leasehold interest in land is personal
property. Trade fixtures put up by the lessee, although real estate
as between the lessor and himself, while annexed to the land, yet
may, during the term of the lease, be severed by the lessee or by
one deriving title from him, and thus reconverted to their original
condition of chattels. At any time before the expiration of the
term, therefore, both the leasehold and the fixtures may be taken
on execution against the lessee, like other personal property.
Dalzell v. Lynch,
4 W. & S. 255; Kutter v.
2 Wall. 491; Van Ness
2 Pet. 137; Minshall v. Lloyd,
2 M. & W. 450; Guthrie v. Jones,
108 Mass. 191.
It is argued for the appellee that by the law of Tennessee, the
rule is different as to both leasehold and fixtures, or at least as
to the leasehold. But we have not found it necessary, for
Page 110 U. S. 271
the purposes of this case, to decide whether by the local law
the leasehold and fixtures, or either of them, should be treated as
real estate or as personal property in levying an execution on them
for the debt of the lessee.
If, as the appellee contends, the property levied on should be
considered as real estate, the judgments, having been recovered in
the county in which the debtor resided, created a lien from the
time they were rendered, which was continued in force by the taking
out of the executions and the sale of the property within a year
after the rendition of the judgments. Code of Tennessee §§ 2980,
If, as the appellant contends, the leasehold and fixtures were
personal property, the case stands thus:
The leasehold interest, though personal property, is an interest
in land. The lessee's interest in the fixtures arises out of the
agreement contained in the lease, and of the manner and purpose of
their annexation to the land, from which they could not be
separated and removed without much labor and expense. It was not
necessary that the officer should retain actual possession in order
to keep alive a levy upon such property. Ashmun v.
8 Pick. 402.
The executions have never been legally recalled or set aside.
The officer, in deference to the supposed order of the court
staying the executions, suspended further proceedings for the
conversion of the property into money to satisfy the judgment
debts, and returned the executions to the court with endorsements
showing all the proceedings under them, thereby submitting the
regularity of his proceedings and the validity of the levies to the
judgment of the court, and it was after this return that the
property was taken possession of by the coroner, under the writ of
attachment from the state court, and was conveyed by the judgment
debtor to the appellant.
The possession so taken by the coroner, and the conveyance so
made by the debtor, cannot impair the validity of the levies. The
judgment creditor and the marshal had done everything in their
power to perfect them. All the proceedings of the marshal had been
endorsed by him on the executions and returned to the court, and
thus appeared of record. The levies
Page 110 U. S. 272
having been once duly made and never abandoned or intended to be
abandoned, and not needing a continuance of actual possession by
the marshal to maintain them, had not been defeated by any
extrinsic facts. And the court, upon motion and hearing, determined
that the levies continued in force, and ordered writs of
The marshal was prevented from taking possession of and selling
the property under those writs by the fact of its being in
possession of the officer of the state court, under the attachment
issued in the present suit to enforce the mechanic's lien. But by
the removal of this suit into the circuit court of the United
States, all danger of conflict between the federal process and
state process was avoided and the circuit court, having all the
parties and all the processes before it, rightly held that the
levies of the executions upon the judgments at law continued in
force, and gave the judgment creditor a priority over the grantee
of the judgment debtor.