It seems there is no act of assembly of Maryland which declares
a judgment to be a lien on real estate before execution issued and
levied. But by an Act of Parliament of 5 George II ch. 7, lands in
the colonies are subject to execution as chattels in favor of
British merchants. This statute has been adopted and in use in
Maryland ever since its passage as the only one under which lands
have been taken in execution and sold.
It is admitted that though this statute extends in terms only to
executions in favor of British merchants, it has long received an
equitable construction applying it to all judgment creditors, and
that this construction has been uniform throughout the state.
As Congress has made no new law on this subject, the circuit
court were bound to decide this case according to the law of
Maryland, which does not consist merely of enactments of their own
or the statutes of England in force or adopted by the legislature.
The decisions of their courts, the settled and 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 a part of the statute, and as such furnish a rule
for
the decisions of the federal courts. The statute and its
interpretation 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 ancient, well established, and uniform usage, it has been
acted on and considered as extending to all judgments in favor of
any persons, and that sales under them have always been held and
respected as valid.
Though the statute of 5 George II does not provide that a
judgment shall be a lien from the time of its rendition, yet there
is abundant evidence that it has always been so considered and
acted on.
The plaintiff in a judgment has an undoubted right to an
execution against the person and the personal or real property of
the defendant; he has his election; but his adoption of any one
does not preclude him from resorting to the other if he does not
obtain satisfaction of the debt on the first execution. His
remedies are cumulative and successive, which he may pursue until
he reaches that point at which the law declares his debt
satisfied.
A
capias ad satisfaciendum executed does not extinguish
the debt for which it issued. If the defendant escape or is
discharged by operation of law, the judgment retains its lien, and
may be enforced on the property of the defendant; the creditor may
retake him if he escape or sue the sheriff.
We know of no rule of law which deprives the plaintiff in a
judgment of one remedy by the pursuit of another or of all which
the law gives him. The doctrine of election, if it exists in any
case of a creditor, unless under the statutes of bankruptcy, has
never been applied to a case of a defendant discharged under an
insolvent act by operation of law.
The greatest effect which the law gives to a commitment on a
capias ad satisfaciendum is a suspension of the other
remedies during its continuance; whenever it terminates without the
consent of the creditor, the plaintiff is restored to them as fully
as if he had never made use of any.
Page 30 U. S. 359
The escape of the defendant by his breach of prison bounds could
not effect the lien of the judgment; the plaintiff was not bound to
resort to the prison bond as his only remedy; a judgment on it
against the defendant was no bar to proceeding by
fieri
facias.
The 5th section of the act of Congress for the relief of
insolvent debtors declares that no process against the real or
personal property of the debtor shall have any effect or operation
except process of execution and attachment in the nature of
execution, which shall have been put into the hands of the marshal
antecedent to the application. The application of this clause in
the section was intended only for a case where one creditor sought
to obtain a preference by process against the debtor's property
after his application. In such case, the execution shall have no
effect or operation, but where the encumbrance or lien had attached
before the application, it had a priority of payment out of the
assigned fund.
This was an ejectment brought by the defendant in error in the
circuit court for the recovery of a lot of ground in the City of
Washington. The defendant pleaded the general issue, and on the
trial a verdict was given for the plaintiff below, subject to the
opinion of the court on a case agreed, which is stated at large in
the opinion of the Court.
Page 30 U. S. 364
MR. JUSTICE BALDWIN delivered the opinion of the Court.
In the court below this was an action of ejectment, brought by
Thomson to recover possession of a lot in the City of Washington.
It came up on a case stated by the parties, which contains all the
facts on which the cause depends, and is as follows:
"In this case it is agreed that one Charles Glover was seized in
fee of the messuage, &c., in dispute, on and before 15 May,
1815, and so continued seized until 4 January, 1819, when he
bargained and sold the premises to the defendant, John Tayloe, as
hereinafter mentioned; that on 15 June, 1818, Owen & Longstreth
obtained two judgments at law against the said Glover, as endorser
of two
Page 30 U. S. 365
promissory notes, passed to the said Owen & Longstreth, the
one for $680.74, with interest from 15 February, 1817 till paid,
and costs, the other for $674.20, with interest from 15 December,
1816 till paid, and costs, which judgments, by an arrangement
between said Owen & Longstreth and the lessor of the plaintiff
or the lessor of the plaintiff together with his partner Maris,
trading under the firm of Thomson & Maris, were transferred,
with other choses in action, by Owen & Longstreth to the lessor
of the plaintiff, or to said Thomson & Maris, so as to place
the proceeds of said judgments at the disposal of said Thomson or
Thomson & Maris and make the same applicable to the security of
said Thomson, or Thomson & Maris, against certain engagements
entered into by him or them, for Owen & Longstreth, and were
prosecuted for the benefit of said Thomson or Thomson &
Maris."
"That
ca. sas. were issued on said judgments on 10 May,
1820, returnable to June term, 1820, and duly served on said
Glover, who was duly committed to the jail of the county aforesaid
under the said execution. That he was thereupon admitted to the
benefit of the prison rules, upon giving bonds and securities,
pursuant to the act of Congress in such case provided. That the
said Glover having broken the prison rules and the conditions of
his said bonds, suits were brought upon the same against him and
his security, returnable to October term, 1822, at the instance and
for the benefit of the said assignee or assignees of the said
judgments, and judgments were duly obtained in said suits against
said Glover (but not prosecuted to judgment against his security,
he having died, and no administration on his estate in this
district), for the respective amounts of said original judgments,
with interest and costs, at October term, 1823, upon which
judgments so obtained against Glover, on said prison bounds bonds,
fi. fas. were duly issued, returnable to December term,
1824, and then returned
nulla bona. That at the same term
of December, 1824, the attorney, upon the record of the said Owen
& Longstreth, still acting at the instance and for the benefit
of the said assignee or assignees of the said original judgments,
moved the court to recommit the said Glover,
Page 30 U. S. 366
under the original
ca. sas., issued on said judgments
and before execution as aforesaid, the ground of which motion was
that more than twelve months had expired since the said Glover had
been admitted to the benefit of the prison rules as aforesaid, and
that the act of Congress in such case provided had limited the
benefit of such prison rules to the term of twelve months, upon
which motion the said Glover was recommitted, by order of said
court, under the said
ca. sas. to the common jail
aforesaid; where he remained, in virtue of his said recommitment,
until 5 February, 1825, when he was duly discharged as an insolvent
debtor pursuant to the act and acts of Congress for the relief of
insolvent debtors within the District of Columbia, he, the said
Glover, having in all things complied with the requisites of the
said act to entitle him to such discharge."
"That after the said original judgments were rendered against
the said Glover as aforesaid, to-wit on 4 January, 1819, he
bargained and sold the said messuage, &c., now in dispute to
the said John Tayloe in fee simple for and in consideration of the
sum of _____, then and there duly paid to him by the said Tayloe,
in fee, by a deed of bargain and sale duly executed, acknowledged,
certified, and recorded according to law, by virtue of which
bargain, sale, and sold premises, and Tayloe entered upon said
bargained and sold premises, and ever since has held, possessed,
and enjoyed the same."
"That no evidence is offered by plaintiff that at the time of
the said bargain, sale, and conveyance and of the payment of the
said purchase money to Glover, Tayloe had any actual notice of the
said original judgments, or either of them -- that is, no other
than the constructive notice arising from the records of said
judgments. That after said Glover had been discharged as an
insolvent debtor as aforesaid,
fi. fas. were issued from
the clerk's office on the said original judgments at the like
instance, and for the like benefit of the said assignee or
assignees of those judgments, returnable at May term, 1825; and
were levied upon the said bargained and sold premises (besides
other real property, which had been before sold and conveyed to
other persons by said Glover) then in possession of and held by
said Tayloe under his said purchase, and the said bargained and
sold premises were afterwards exposed to
Page 30 U. S. 367
sale by the marshal under said executions and purchased by the
lessor of the plaintiff, to whom they were conveyed by the said
marshal by a deed in the usual form, duly executed acknowledged and
recorded."
"That the lessor of the plaintiff, by whose order the said
executions issued, had actual notice of the said bargain, sale, and
conveyance from Glover to Tayloe and of the possession of Tayloe
before the issuing of the said executions."
"That for the purchase money, the lessor of the plaintiff paid
nothing, but entered credit on said judgments, or one of them, for
the amount of the same."
"Upon the foregoing case stated, it is submitted to the court,
if the lessor of the plaintiff be entitled to recover the said
messuage, &c., and if the law be for the plaintiff upon the
facts aforesaid, then judgment in the usual form to be entered for
the plaintiff, otherwise for the defendant. It is agreed the
premises in dispute are of the value of $1,000 and upward."
Upon the case stated, judgment in the court below was given for
the lessee of the plaintiff for his term yet to come and unexpired,
&c. To which judgment the defendant below sued this writ of
error.
The first point made by the plaintiff in error is that by the
law of Maryland, which, it is admitted is the rule by which this
point is to be determined, a judgment is no lien on real estate
before execution issued and levied.
It seems there is no act of assembly of that state applicable to
the case, but that by an act of Parliament of 5 George II, ch. 7,
lands in the colonies are subject to execution as chattels in favor
of British merchants; that this statute has been adopted and in use
in Maryland ever since its passage as the only one under which
lands have been taken in execution and sold.
It is admitted that though this statute extends in terms only to
executions in favor of British merchants, it has long received an
equitable construction applying it to all judgment creditors. The
plaintiff's counsel do not assert that this construction has ever
been questioned or that it has not been uniform throughout the
state, but asks this Court to review this construction, and give to
the statute such an one as will confine it to the only case for
which it makes a provision.
Page 30 U. S. 368
As Congress has made no new law on this subject, the circuit
court was bound to decide this 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 the legislature.
The adjudications of their courts, the settled and 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 a part of the statute, and as such furnishing a
rule for the decisions of the federal courts. The statute and its
interpretation form together a rule of title and property, which
must be the same in all courts. Had this question occurred in the
courts of that state, they would be bound to say that it was now
too late to overlook the practical construction which this statute
has received for a century and on which numberless titles depend.
Property would be held by a very precarious tenure and infinite
confusion would be introduced if any court should now resort to its
terms as furnishing the class of cases in which lands could be sold
on execution and declaring it to extend to none other. It is enough
for this Court to know that by ancient, well established, and
uniform usage it has been acted on and considered as extending to
all judgments in favor of any persons, and that sales under them
have always been held and respected as valid titles. The circuit
court was right in deciding that the plaintiff below was entitled
to all the benefits of the statute of 5 Geo. II. Though it does not
provide that a 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.
Though the researches of the counsel for the defendant in error
have not enabled them to furnish the court with any express
judicial decision on this particular question, yet the evidence
adduced is not less satisfactory to show that it has long since
been settled. The case of
Dorsey v. Worthington, in 4
Harris & McHenry, 533, shows, that so early as 1771, it was
adopted as an established principle, and the later cases in 3
Harris & McHenry 450; 2 Harris & Johnson 64, 73; 3 Harris
& Johnson 497, are founded on it as a well known preexisting
rule, not questioned even by counsel, but apparently of a time so
remote as to be beyond not only the memory of any living jurist,
but the reported decisions of any
Page 30 U. S. 369
court. The decisions in the cases referred to are wholly
unsupported and unaccountable on any other construction of the
statute than the one contended for by the defendant in error.
If a judgment was not a lien from its date, an alienation before
execution would prevent it from attaching afterwards. Yet the
plaintiff may proceed and sell lands aliened after judgment without
a
scire facias, against the alienee. 2 Harris &
Johnson 72. So of lands in the hands of a purchaser under a younger
judgment, 3 Harris & McHenry 450, or against a terre-tenant
after the defendant had been arrested on a
ca. sa. on the
same judgment, imprisoned, escaped, and a judgment against the
sheriff. 3 Harris & Johnson 497. 4 Harris & McHenry, 533,
S.P. There can therefore be not doubt that from the earliest
period, the courts of Maryland had established it as a rule of
property, which had become unquestioned long before the cession of
this district to the United States, that a judgment is a lien
per se on the lands of the defendant.
The next question which arises is whether the proceedings which
have been had on the judgment in question, prior to the execution
on which this lot was sold, have impaired or annulled its lien. The
plaintiff had an undoubted right to an execution against the person
and the personal or real property of the defendant; he has his
election, but his adoption of any one does not preclude him from
resorting to the other if he does not obtain satisfaction of the
debt on the first execution. His remedies are cumulative and
successive, which he may pursue until he reaches that point at
which the law declares his debt satisfied. A
ca. sa.
executed does not extinguish it. If the defendant escape or is
discharged by operation of law, the judgment retains its lien and
may be enforced on his property. The creditor may retake him or sue
the sheriff for the escape. A judgment against him does not amount
to a satisfaction of the original debt, but it retains its lien
until the plaintiff has done or consented to some act which amounts
in law to payment, as the discharge of defendant from custody, or,
in some cases, a levy on personal property. But we know of no rule
of law which deprives a plaintiff in a judgment of one remedy by
the pursuit of another or of all which the law gives him. The
doctrine of election, contended for by the plaintiff in error, if
it exists in any case of a creditor, unless under the statutes
Page 30 U. S. 370
of bankruptcy, has never been applied to a case of a defendant
in execution discharged under an insolvent act by operation of law;
a contrary principle is recognized as well settled in 5 East
147.
The greatest effect which the law gives to a commitment on a
ca. sa. is a suspension of the other remedies on the
judgment during its continuance: whenever it terminates without the
consent of the creditor, the plaintiff is restored to them all as
fully as if he had never made use of any. The cases cited by the
defendant from Buller's Nisi Prius 69; 5 Coke 86, b.;
Bloomfield's Case and those in the courts of Maryland
fully support and are decided on this principle. In 1 Vesey 195,
Lord Hardwicke decided that where a defendant was in custody under
a
ca. sa., and a
fi. fa. was afterwards taken out
on the same judgment, and a farm levied on and sold, the purchaser
being a stranger should hold it, as the
fi. fa., though
irregular and erroneous, was not void. The authority of this
decision has never been questioned, and fully establishes the
position that a
ca. sa. neither extinguishes the debt nor
annuls the subsequent proceedings on a
fi. fa., though the
case would have been different had the plaintiff in the judgment
been the purchaser. In the present case, we must consider Thomson
as the plaintiff in the judgment on which the lot in controversy
has been sold, and that the sale may be open to objections, which
would not be good against a stranger purchaser; but we can perceive
in the case stated no facts which in any manner legally invalidate
his purchase. He had a right to make use of the
ca. sa.
until he obtained satisfaction. The escape of Glover by his breach
of prison bounds could not effect the lien of the judgment. The
plaintiff was not bound to resort to the prison bond as his only
remedy; a judgment on it against Glover was no more a bar to a
fi. fa. than a judgment against the sheriff for an escape,
and Glover could place himself in no better situation by breaking
his bond than by remaining a true prisoner. Whether he escaped or
remained in prison bounds, the marshal was bound to recommit him to
close custody after the expiration of twelve months from the date
of the bond [3d section of the Act of June 1812, Burch, 277]. This
was a measure directed by law without any application to the
creditor; its being done
Page 30 U. S. 371
in this case on his motion cannot vary the effects, for Glover
in either case must remain in custody until the debt for which he
was committed was paid or he be discharged under the act of
Congress for the relief of insolvent debtors. Up to this time, no
act was done by the judgment creditor which could impair the legal
effect of his judgment by any rule of the common law, the laws of
Maryland or the District of Columbia, or by any legal adjudication
of the courts of that state on the construction of the statute.
It remains only to consider the effect of the proceedings under
the insolvent law of the District, under which Glover was
discharged. The counsel for the plaintiff in error relies on the
last clause of the fifth section of this law as conclusive against
the proceedings on the judgment subsequent to Glover's
discharge.
"And no process against the real or personal property of the
debtor shall have any effect or operation except process of
execution, and attachments in the nature of executions, which shall
have been put into the hands of the marshal antecedent to the
application."
The true meaning of this clause can be ascertained from the
provisions of the preceding part of the law; the debtor is to make
out a list of all his property, real, personal and mixed, and offer
to deliver it up to the use of his creditors; the court then
appoint a trustee, who is required to give bond with security for
the faithful performance of his trust. The debtor is then directed
to execute to the trustee a deed conveying all his property,
rights, and credits.
The lot in question was not the property of Glover at the time
of his application for the benefit of the law; he had conveyed it
in fee in January, 1819, and received the purchase money, and
therefore neither could have any property in the lot or right or
credit arising from the sale; nothing to deliver up to his
creditors or convey to the trustee; no question could arise between
them and the judgment creditor; and the trustee could have no right
to sell the lot and distribute the proceeds among the creditors of
Glover. The fifth section applies only to the property which passed
to the trustee by the deed from the insolvent, not to what he had
conveyed to Tayloe in 1819, six years before Glover's discharge.
The trustee acquired what the debtor had at the time of his
application
Page 30 U. S. 372
or was in any way entitled to that he could sell, and must
distribute ratably among all the creditors after satisfying
encumbrances and liens. The application of the clause of this
section, before recited, was intended only for a case where one
creditor sought to obtain a preference by process against the
debtor's property after his application. In such case it declared
it should have no effect or operation; but where the encumbrance or
lien had attached before the application, it had a priority of
payment out of the assigned fund.
Thus understood, the case is perfectly plain. This law can have
no application to real estate which never did and never could come
into the hands of the trustee for distribution, but left the
judgment creditor with all his rights to enforce the lien of his
judgment on lands of the debtor in the hands of the plaintiff in
error, who purchased after its rendition, and must hold it as the
debtor did, subject to its lien.
It is not alleged that the proceedings subsequent to the levy on
the lot are erroneous or void; they appear to have been regular,
and therefore vested the title to the lot in controversy in the
lessor of the plaintiff.
The judgment of the circuit court is affirmed with
costs.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States, for the District of
Columbia holden in and for the County of Washington, and was argued
by counsel, on consideration whereof it is considered, ordered, and
adjudged by this Court that the judgment of the said circuit court
in this cause be and the same is hereby affirmed with costs.