The district attorney of the United States filed an information
in his own name in behalf of the United States in the District
Court for the Northern District of New York to enforce a mortgage
given to the United States by Woolsey, one of the defendants. This
form of proceeding has been for a long time used without objection
in the courts of the United States in New York, and was doubtless
borrowed from the form used in analogous cases in the courts of the
State of New York, where the state itself was the plaintiff in the
suit. The United States may be considered as the real party,
although in form it is the information and complaint of the
It is certainly desirable that the practice should be uniform in
the courts of the United States and that in all suits where the
United States is the real plaintiffs, the proceeding should be in
its name unless it is otherwise ordered by act of Congress.
The District Attorney of the United States for the Northern
District filed in the District Court of the Northern District an
information on behalf of the United States for the purpose of
foreclosing a mortgage executed by Melancthon T. Woolsey to the
United States in July, 1825, as a security for the payment of a
debt due by him to the United States in one year after its date.
The mortgage comprehended land in the County of Jefferson and in
the County of St. Lawrence, New York, and it was recorded in
Jefferson County on 26 November, 1830, and in the County of St.
Lawrence on 10 June, 1831.
The Bank of Utica had obtained a judgment against Melancthon T.
Woolsey, in the supreme court of New York on 17 October, 1816, for
one thousand six hundred dollars, which judgment was docketed on 24
November, 1817. No execution was issued on this judgment until it
was revived by a scire facias
on 9 July, 1828. A fieri
was then issued on the judgment, and the lands
mortgaged to the United States were sold to satisfy the debt and
were purchased by the Bank of Utica, to whom they were conveyed by
the sheriff on 3 May, 1830. The lands in
Page 37 U. S. 28
St. Lawrence County were sold by the sheriff January 30, 1829,
and conveyed to the Bank of Utica on 15 May, 1830, having been
purchased by the bank.
By the law of New York, the judgments in favor of the Bank of
Utica ceased to be a lien on the lands of Woolsey after ten years
against bona fide
purchasers and subsequent encumbrances,
and the district attorney, on behalf of the United States, claimed
the operation of the mortgage to the United States so as to exclude
the claim of the bank under the judgment upon which the land was
sold and purchased by the bank to satisfy their debt. No money was
paid by the bank at the time of the purchase except the expenses
attending the proceedings against the land, but the bank claimed to
hold the land as a bona fide
purchaser, the property
having been bought to satisfy the debt due on the judgment and
without notice of the mortgage to the United States, it not having
been put on record until after the proceedings under the
The district court gave a decree in favor of the defendants, and
the plaintiff appealed to this Court.
The judgment of the district court was affirmed by a divided
court, and no opinion was given on any of the questions raised and
argued in the cause except upon a question of jurisdiction. MR.
JUSTICE THOMPSON did not sit in the cause, being connected with one
of the parties to it.
The Court intimated a doubt of its jurisdiction in the case, as
the district attorney had instituted the suit in his own name.
Page 37 U. S. 29
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
In this case, a bill of information and complaint was filed by
the district attorney of the United States in behalf of the United
States in the District Court for the Northern District of New York
against Melancthon C. Woolsey, the Bank of Utica and others for the
purpose of foreclosing a mortgage upon certain real property,
executed by the said Woolsey to the United States, on 20 July,
1825, to secure the payment of twenty-nine thousand four hundred
and fifty-nine dollars and twenty-nine cents in one year from the
date, with interest. The property mortgaged was situated partly in
the County of Jefferson and partly in the County of St. Lawrence in
the State of New York, and the mortgage was recorded in the
Page 37 U. S. 30
of Jefferson, November 26th, 1830; and in the county of St.
Lawrence, June 10th, 1831.
It appears, from the answer and evidence that the Bank of Utica
obtained a judgment in the supreme court of the State of New York
against the said Woolsey on 7 October, 1817, for sixteen thousand
dollars, and the judgment was docketed November 24, 1817. No
further proceedings were had upon it until May term, 1828, when it
was revived by scire facias,
and the judgment on the
docketed July 9, 1828.
Process of fieri facias
issued on this judgment,
endorsed to levy six thousand six hundred and sixty-seven dollars
and fifty cents, and the lands mortgaged to the United States in
Jefferson County were sold by the sheriff on 24 November, 1828, and
(with the exception of a small parcel) purchased by the bank. They
were conveyed by the sheriff to the bank May 3, 1830. The lands in
St. Lawrence County mortgaged to the United States were sold by the
sheriff January 30, 1829, and conveyed by the sheriff to the bank
May 15, 1830.
The judgment obtained by the bank, in 1817, after the expiration
of ten years from the time it was docketed, ceased by the laws of
New York to be a lien upon real estate against bona fide
purchasers or subsequent encumbrances by mortgage, judgment, or
otherwise, and consequently, after 24 November, 1827, it no longer
bound the property of Woolsey.
The bank denies in its answer that it had notice of the mortgage
in question at the time it purchased and obtained the conveyances,
and there is no evidence in the record to charge them with notice.
It purchased and obtained the deeds as above stated before the
mortgage was recorded. No money was paid by the bank on the
purchase except for expenses of sale and costs. The property was
bought to secure the debt due from Woolsey, and the bank claims, by
reason of that debt, to be a bona fide
purchaser for a
valuable consideration, and, having had no notice of the mortgage
to the United States, it insists that it is entitled to hold the
lands discharged of the mortgage.
Some doubts were at first entertained by the Court whether this
proceeding could be sustained in the form adopted by the district
attorney. It is a bill of information and complaint in the name of
the district attorney in behalf of the United States. But upon
carefully examining the bill, it appears to be in substance a
Page 37 U. S. 31
proceeding by the United States, although in form it is in the
name of the officer. And we find that this form of proceeding in
such cases has been for a long time used without objection in the
courts of the United States held in the State of New York, and was
doubtless borrowed from the form used in analogous cases in the
courts of the state where the state itself was the plaintiff in the
suit. No objection has been made to it either in the court below or
in this Court on the part of the defendants, and we think the
United States may be considered as the real party, although in form
it is the information and complaint of the district attorney. But
although we have come to the conclusion that the proceeding is
valid and ought to be sustained by the Court, it is certainly
desirable that the practice should be uniform in the courts of the
United States and that in all suits where the United States are the
real plaintiffs, the proceeding should be in their name unless it
is otherwise ordered by act of Congress.
Considering the United States as the real party in the case, the
question to be decided by this Court is whether, under the Act of
the State of New York concerning judgments and executions passed
April 2, 1813, the Bank of Utica was a bona fide
at the sheriff's sale hereinbefore mentioned, the purchase being
made not upon an advance of the purchase money, but to pay a
precedent debt due to the bank by judgment.
This question has been fully argued and carefully considered by
this Court. But no opinion can be pronounced on the point because
the judges are equally divided upon it. Upon this division, the
judgment of the court below is necessarily
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Northern
District of New York and was argued by counsel. On consideration
whereof it is adjudged and ordered by this Court that the judgment
of the said district court in this cause be and the same is hereby