In 1874, B conveyed to H, for a term of 50 years, all the
mineral coal upon and under a described tract of land, in Knox
County, Indiana, with the exclusive right to enter on the land to
dig for the coal, and remove it, and to occupy with constructions
and buildings, as might be necessary and useful for the full
development and enjoyment of the advantages of the coal, H to have
the right to remove all buildings or fixtures placed on the land,
when the agreement should expire, and to pay a fixed royalty for
the coal mined. Under a judgment against H, the Sheriff of Knox
County sold, on execution, to the judgment creditor at the
courthouse door in that county, in the manner prescribed by statute
for the sale of real estate, the interest of H in the term of
years, and certain buildings and articles belonging to him, which
were a part of the structures and machinery for operating a coal
mine on the land, and which were firmly attached to the land. In a
suit in equity brought by the purchaser against another judgment
creditor and the sheriff, to enjoin interference with the property
so purchased,
held that under the Revised Statutes of
Indiana of 1852, 2 Rev.Stat., part 2, c. 1, Act of June 18, 1852,
vol. 2 of Davis' edition of 1876, art. 24, sec. 520, p. 232, and
art. 22, secs. 463, 466 and 407 (as amended February 2, 1855), pp.
215, 217, the sale of the property as real estate was valid.
The Vincennes National Bank, of Vincennes, Indiana, and the
Washington National Bank, of Washington, Indiana, having severally
recovered judgments against William Helphenstine and others,
composing the firm of William Helphenstine & Co., issued
executions thereon, under which, and under an execution on another
judgment, the Sheriff of Knox county, Indiana at the courthouse
door, in Vincennes, in that county, on a notice advertised for
three weeks successively in a weekly newspaper, and notices posted
as required by law for twenty days, offered at public sale the
rents and profits, for a term not exceeding seven years, of certain
real estate and chattels real on which he had levied, and, having
received no bid for such rents and profits, exposed to public sale
the fee simple of the
Page 113 U. S. 409
real estate and chattels real and the improvements thereon,
to-wit:
"One engine and boiler and hoisting machine, steam pump,
Fairbanks' railroad scales, wagon scales, four screens,
blacksmith's shop, one office building, one engine building and
dump house, one stable, one lime house, two dwelling houses, track
in coalmine, railroad track, switches, and all fixtures belonging
to the coal mine on said real estate and leasehold."
The levy and sale included the interest of the judgment debtors
for the residue of terms of years unexpired under certain mining
leases of real estate, embracing that covered by the Bunting
agreement, hereinafter mentioned. The two banks became the
purchasers at the sale, on June 9, 1877, and received a
certificate, which stated that they would be entitled to a deed
unless the property should be redeemed within one year from the
date of the sale. On the 25th of December, 1877, they filed a bill
in equity, in the Circuit Court of the United States for the
District of Indiana against the members of the firm of William
Helphenstine & Co., and the members of the firm of Hyatt,
Levings & Co. The latter were judgment creditors of William
Helphenstine & Co. The object of the suit was to restrain
interference with the purchased property. The bill was afterwards
amended by making the sheriff a defendant, and by alleging that
Hyatt, Levings & Co. had caused a levy to be made, under an
execution on their judgment, on iron rails and other property,
which Helphenstine had detached, and on articles which constituted
a part of the machinery for operating the mine, and which were
firmly attached to the real estate and leasehold, and were part of
the property so purchased by the plaintiffs.
The question in the case arises in respect to an agreement or
lease in writing, executed by one Bunting and his wife and William
Helphenstine & Co., in July, 1874, by which the former conveyed
to the latter, their heirs, successors and assigns, for a term of
fifty years, "all the mineral coal, iron ore, fire and potters'
clay, limestone, building stone, and other minerals upon and under
the farm or tract of land" described, with the exclusive right to
enter on the land to dig for the articles named, and, when found,
to remove the same from
Page 113 U. S. 410
the land,
"together with all rights and privileges incident to mining and
securing the minerals aforesaid, including the right of ingress and
egress, and to dig, bore, mine, explore, and occupy with
constructions and buildings, as may be necessary and useful for the
full development and enjoyment of the advantages of said coal and
other minerals as aforesaid."
The lessees were given "the right to remove all buildings or
fixtures placed on said land when said agreement has been forfeited
or may have expired," and they were to pay fixed royalties for the
articles mined and removed. The answers of Helphenstine & Co.,
and of Hyatt, Levings & Co., aver that the property in question
was personal property, situated fifteen miles distant from the
courthouse of the county, and was used in and about the operation
of the mine under the mining contract.
Before the hearing the parties stipulated in writing
"that the plaintiffs are entitled to a decree as prayed for,
unless the property sold should have been sold as personal
property, as provided for by the statutes of the State of Indiana;
that the sheriff's sale was made at the courthouse door, in the
City of Vincennes, in Knox County, and more than twelve miles from
the property."
The circuit court entered a decree that, by virtue of their
purchase and the certificate thereof, the plaintiffs became the
equitable owners, subject to the right of redemption, "of the real
estate, fixtures, machinery, and chattels real," which the decree
went on to describe, and of the right, title, and interest of
William Helphenstine & Co., being the residue of terms of years
unexpired under certain mining leases of specified real estate,
including that covered by the agreement with the Buntings; that on
said land and leaseholds were situate and sold, as aforesaid, to
the plaintiffs, the chattels real before described as sold to them,
and that the sheriff had levied on property which at the time of
the sale to the plaintiffs, was annexed to and constituted part of
said real estate and chattels real, and was part of the property
sold to the plaintiffs, and intended to sell it. The decree
enjoined the defendants from selling the property so levied on.
Subsequently the defendants moved to modify the decree by
striking
Page 113 U. S. 411
out so much as enjoined the sheriff from selling the machinery,
buildings, fixtures, and improvements situate on the premises held
under the agreement with the Buntings, because they were personal
property when levied on under the execution of the plaintiffs, and
the sale was void because they were not sold as personal property
but as real property, and the plaintiffs acquired no title under
the sale made at the courthouse door. The motion was overruled. The
defendants have appealed to this Court, setting forth, in their
petition of appeal, that they appeal from that part of the decree
which relates to the machinery, buildings, fixtures, and
improvements situated on the Bunting premises and held under the
Bunting agreement, on the ground that it was personal property and
not real estate, and was not sold as personal property, in the
presence of the officer making the sale.
MR. JUSTICE Blatchford delivered the opinion of the court. He
recited the facts as above stated, and continued:
The only question for decision is, by the stipulation of the
parties, whether the property in question should have been sold in
the manner in which personal property was required by the statute
of Indiana to be sold.
The statute in force at the time, in regard to the sale of
personal property on execution, 2 Rev.Stat. Ind. 1852, pt. 2, c. 1;
Act June 18, 1852, art. 22, §§ 468, 469, vol. 2 Davis' ed. 1876, p.
218, provided as follows:
"SEC. 468. Previous notice of the time and place of the sale of
any personal property on execution shall be given for ten days
successively, by posting up written notices thereof in at least
three of the most public places in the township where the sale is
to be made."
"SEC. 469. Personal property shall not be sold unless the same
shall be present and subject to the view of those attending the
sale, and it shall be sold at public auction in such lots and
parcels as shall be calculated to bring the highest price."
The Revised Statutes of Indiana of 1852, in force at the time,
in regard to the sale of real estate on execution, 2 Rev.Stat. pt.
2, c. 1; Act of June 18, 1852, vol. 2 Davis' ed. 1876, provided as
follows, Art. 24, § 526, p. 232:
"SEC. 526. The following real estate shall be liable to all
judgments and attachments, and to be sold on execution against the
debtor owning the same, or for whose use the same is holden,
viz., first, all lands of the judgment debtor, whether, in
possession, reversion, or remainder;
second, lands
fraudulently conveyed with intent to delay or defraud creditors;
third, all rights of redeeming mortgaged lands; also,
all
Page 113 U. S. 414
lands held by virtue of any land office certificate,
fourth, lands and any estate or interest therein holden by
anyone in trust for or to the use of another;
fifth, all
chattels real of the judgment debtor."
Art. 22, § 463, p. 215:
"SEC. 463. The estate or interest of the judgment debtor in any
real estate shall not be sold on execution until the rents and
profits thereof, for a term not exceeding seven years, shall have
been first offered for sale at public auction, but, if the same
shall not sell for a sum sufficient to satisfy the execution, then
the estate or interest of the judgment debtor shall be sold by
virtue of the execution."
Art. 22, § 466, p. 217:
"SEC. 466. Real estate, taken by virtue of any execution, shall
be sold at public auction at the door of the courthouse of the
county in which the same is situated, and if the estate shall
consist of several lots, tracts, and parcels, each shall be offered
separately, and no more of any real estate shall be offered for
sale than shall be necessary to satisfy the execution, unless the
same is not susceptible of division."
Art. 22, § 467, as amended February 2, 1855, p. 217:
"SEC. 467. The time and place of making sale of real estate, on
execution, shall be publicly advertised by the sheriff, for at
least twenty days successively, next before the day of sale, by
posting up written or printed notices thereof, in three public
places in the township in which the real estate is situated, and a
like advertisement at the door of the courthouse of the county, and
also by advertising the same, for three weeks successively, in a
newspaper printed nearest to the real estate, if any such newspaper
be printed within the jurisdiction of the sheriff."
In the rules prescribed by the act, Art. 48, § 797, p. 313, vol.
2 of Davis' ed. 1876, for its construction, it is enacted that such
rules shall be observed "when consistent with the context." Among
those rules are these -- that "the word "land" and the phrases
"real estate" and "real property" include lands, tenements, and
hereditaments" and that "the phrase
personal property' includes
goods, chattels, evidences of debt, and things in action." But no
definition or construction is given of the phrase "chattels
real."
The Revised Statutes of Indiana of 843, Act of February 11,
Page 113 U. S. 415
1843, pt. 2, c. 29, Art. 1, § 1, provided as follows:
"Section 1. When, by any law of this state, real estate is
authorized or directed to be sold by virtue of any execution, the
same shall be construed to mean and include, 1. all the lands,
tenements, and hereditaments of the judgment debtor, whether, in
possession, reversion, or remainder; 2. lands, tenements, and
hereditaments fraudulently conveyed with intent to defeat, delay,
or defraud creditors; 3. all rights of redeeming mortgaged lands,
tenements, or hereditaments, and also all lands held by virtue of
any land office certificate; 4. lands, tenements, and
hereditaments, and any estate or interest therein, holden by anyone
in trust for or to the use of another, on execution issued on any
judgment against the person to whose use, or for whose benefit, the
same are holden."
The provisions of these four clauses were substantially retained
in the Revision of 1852, and the provision as to "chattels real of
the judgment debtor" was added as a 5th clause. Although, by the
Revised Statutes of 1843, part 2, chap. 29; Art. 1, § 3, p. 454,
judgments were made a lien on real estate and chattels real of the
judgment debtor, which provision is contained in the Revision of
1852, part 2, c. 1, Art. 24, § 527, vol. 2 of Davis' edition of
1876, chattels real were not specifically made liable to sale on
execution as real estate till 1852, when the 5th clause was
added.
That clause must be interpreted according to the accepted
meaning of the words "chattels real." Blackstone defines chattels
real, according to Sir Edward Coke, 1 Inst. 118, to be such as
concern or savor of the realty, as terms for years of land, and
says they are called real chattels as being interests issuing out
of or annexed to real estates, of which they have one quality,
viz., immobility, which denominates them real, but want
the other,
viz., a sufficient legal indeterminate
duration, which want it is that constitutes them
chattels.
2 Bl.Com. 386. Chancellor Kent says, 2 Kent 342:
"Chattels real are interests annexed to or concerning the
realty, as a lease for years of land, and the duration of the term
of the lease is immaterial, provided it be fixed and determinate,
and there be a reversion or remainder in fee in some other person.
"
Page 113 U. S. 416
The interest of the judgment debtors in this case in the land
covered by the Bunting agreement was a chattel real, and as the
dispute here relates to machinery, buildings, fixtures, and
improvements situated on the Bunting premises and held under the
Bunting agreement, it follows that that property had impressed on
it, by the statute, for the purposes of a sale on execution, the
character of a chattel real, and became, for those purposes, real
estate, and therefore was not required to be sold as personal
property, present and subject to the view of those attending the
sale, but was property sold as real estate at the door of the
county courthouse.
The estate for years, or the interest in the land, could not be
subject to view. The machinery, buildings, fixtures, and
improvements were created under the privilege given by the
agreement to occupy the land with constructions and buildings for
mining coal and other minerals, and although Helphenstine & Co.
had the right to remove the buildings and fixtures at the
expiration of the agreement, yet, so long as they were held under
the agreement, on the premises, and were of the character referred
to, they followed the term for years and partook of its
character.
In
Barr v. Doe, 6 Blackford 335, in 1843, it was held
that a parol lease for three years was a chattel interest, and
could be sold as a chattel, on an execution issued by a justice of
the peace. But that decision does not apply to the statute now
under consideration, and no case is cited or found in the courts of
Indiana which holds to the contrary of the views above expressed.
Indeed, in the Revised Statutes of 1843, part 3, c. 47, § 347, p.
992, Form No. 10, the form prescribed for an execution by a justice
of the peace was against "goods and chattels," while in the
Revision of 1852, vol. 2 Davis' ed. 1876, pt. 5, c. 1, § 127, Form
No. 4, the form runs against "goods" only.
The case of
Buhl v. Kenyon, 11 Mich. 249, is cited for
the appellants. It was there held that an estate for years in land
was to be sold on execution as personal estate, and that a sale of
it in accordance with the statutory provisions for the sale of real
estate was void. The court proceeded on the ground that, as the
statute of Michigan provided that the words "real
Page 113 U. S. 417
estate," "when not inconsistent with the manifest intention of
the legislature," "shall be construed to include lands, tenements,
and real estate, and all rights thereto and interest therein," and
also provided that
"all the real estate of a debtor, whether, in possession,
reversion, or remainder, including lands fraudulently conveyed with
intent to defeat, delay, or defraud his creditors, and the equities
and rights of redemption hereinafter mentioned, shall be subject to
the payment of his debts, and may be sold on execution, as
hereinafter provided,"
and also enacted that all
"chattels, real or personal, and all other goods liable to
execution by the common law, may be taken and sold thereon, except
as is otherwise provided by law,"
and, as a leasehold interest of the kind in question was a
chattel interest, and was by the last-named provision classed among
personal property, it was not within the law applicable to the sale
of lands on execution. In the present case, a chattel real is
distinctly classed, by § 526, among "real estate liable to be sold
on execution," and must therefore be sold in the manner in which §
466 directs that "real estate taken by virtue of any execution
shall be sold."
The point decided in
Meni v. Rathbone, 21 Ind. 454,
467, was that a lease for years, acquired by a wife during
coverture, became the property of her husband, when reduced to
possession by him, and, being a chattel, was personal property,
under the definition before referred to, and subject to the
husband's debts, and, being a chattel real, a judgment against the
husband was, by the statute of 1852, a lien upon it.
The motion made in the circuit court to modify the decree was
based on the idea, that while the term for years might be a chattel
real, the machinery, buildings, fixtures, and improvements placed
on the land should have been sold as personal property. As the
statute requires that real estate "shall" be sold at the door of
the courthouse, the visible property could not be sold there in
view of the persons attending the sale of the real estate, unless
it was first severed from the land, and to have so treated it
would, doubtless, have rendered not only it but the term for years
worthless, as vendible articles. No such result could have been
contemplated by the lawmakers,
Page 113 U. S. 418
and none such can be allowed, if another reasonable and
consistent construction is to be found.
It is not necessary or proper to consider any question involved
in any right of redemption. Nor is it intended to decide anything
as to the status of any of the property, aside from the lawfulness
of the manner of its sale, under the statute in regard to such
sale.
The decree of the circuit court is
Affirmed.
