The principle of the common law undoubtedly is that no property
but that in which the debtor has a legal title is liable to be
taken in execution, and accordingly it is well settled in the
English courts that an equitable interest is not liable to
execution. In the United States, different views have been taken of
this question in the courts of the several states. Except as
against the mortgagee, the mortgagor is regarded as the real owner
of the property mortgaged, and this rule has very extensively
prevailed in the states of the United States that an equity of
redemption is vendible as real property on an execution and that it
is also chargeable with the dower of the wife of the mortgagor.
The equity of redemption of a mortgagor of land in that part of
the District of Columbia ceded by the State of Maryland to the
United States cannot be taken in execution under a
fieri
facias. At the time of the cession to the United States, the
rule of the common law was the law of Maryland.
It is not necessary to refer to authorities to sustain a
proposition that a chose in action is not liable to be levied on by
a
fieri facias.
In November, 1836, the appellant filed a bill in the circuit
court against Alpheus Hyatt and others. The following were the
important facts in the case, as sustained by the evidence:
In December, 1818, William Cocklin leased to James Shields a lot
of ground in the City of Washington, for ten years from January 1,
1819, for the rent of thirty-five dollars per annum. The lessee
covenanted to erect and build within twelve months a two-story
brick house upon the lot, and the parties agreed that if at or
before the expiration of the lease, the lessee should pay to the
lessor the sum of three hundred and seventy-five dollars, the rent
should cease, and so if a portion or part of the sum of three
hundred and seventy-five dollars should be paid within the time,
the rent should be diminished according to the sum or sums paid. On
the payment of the whole of the sum, William Cocklin was to make to
the lessee a good and sufficient title in fee simple to the
lot.
James Shields, on 23 September, 1823, mortgaged the lot and
improvements upon it to John Franks, to secure a debt of $1,127,
and on 7 May, 1825, the mortgagee assigned all his right and title
under the mortgage to Alpheus Hyatt, one of the appellees, and on 9
May, 1825, James Shields released all his interest in the lot to
Alpheus Hyatt for the consideration of two hundred dollars.
Subsequently, in May, 1826, Alpheus Hyatt, having paid to the heirs
and representatives of William Cocklin the whole sum of three
hundred and seventy-five dollars and the intermediate rent, they
released to him the premises and conveyed to him in fee simple all
their right, title, and property in the same.
On 8 November, 1823, John P. Van Ness, the
Page 38 U. S. 295
appellant, obtained, before a magistrate of the County of
Washington, a judgment for thirty dollars and twenty-five cents
against James Shields, and he caused a
fieri facias to be
issued on the judgment on 10 June, 1824, under which a levy was
made by the constable having the process, on the right, title,
interest, estate, and claim of James Shields in and to the lot
originally held by him under the lease and agreement with William
Cocklin. The property levied upon was sold by the constable under
the process for the sum of fifty-four dollars, on 10 July, 1824,
and John P. Van Ness, the appellant, became the purchaser thereof
on 19 August, 1825; the constable conveyed the premises sold by
him, to the appellant, by a deed of indenture which was recorded on
9 January, 1826.
The appellant having filed his bill stating all the facts, and
alleging the conveyances made by Shields and Franks, and the heirs
and representatives of William Cocklin to have been erroneous and
fraudulent, and averring his full readiness to pay the heirs and
representatives of William Cocklin, or to the representatives of
Franks, all that Shields was bound to pay to them; prayed a decree
that the property should be assigned to him, and that he should be
quieted in the possession of the same, and for general relief.
There was no evidence to support the allegations of fraud stated
in the bill, nor was there any proof given of notice to the
appellees of the same. The answers, as far as they were responsive
to the bill, and the several exhibits with the bill and the
answers, were the only proofs in the cause.
The circuit court, after a hearing of the parties by their
counsel, dismissed the bill with costs; and the complainant
prosecuted this appeal.
Page 38 U. S. 296
MR. JUSTICE BARBOUR delivered the opinion of the Court.
This is an appeal from the Circuit Court for the County of
Washington, in a suit in equity brought by the appellant in that
court, in which a decree was made dismissing the bill with
costs.
The case was this. On 31 December, 1818, an agreement was
entered into between William Cocklin and James Shields by which
Cocklin leased to Shields part of a lot in the City of Washington,
for ten years, from 1 January, 1819, for the yearly rent of
thirty-five dollars. The lessee was to build a two story brick
house on the lot, within twelve months from the date of the lease.
And it was agreed between the parties, that if, at the expiration
of the lease, Shields should pay to Cocklin three hundred and
seventy-five dollars, then the rent should cease to be paid, or if
all or any part of the three hundred and seventy-five dollars were
paid before the expiration of the lease, then such part
Page 38 U. S. 297
of the rent of thirty-five dollars should cease, as should bear
an equal proportion to the money so paid. And on the receipt of the
whole of the purchase money, and not before, Cocklin should make to
Shields a good and sufficient title in fee simple to the lot of
ground described in the lease.
On 23 September, 1823, Shields, the lessee, mortgaged the
premises to a certain John Franks to secure a debt of $1,127.48. On
7 May, 1825, Franks assigned all his right and title to the
appellee, who also, on 9 May, 1825, procured from Shields a release
of his interest, and from the representatives of Cocklin a
conveyance of all their title, on 16 April, 1826.
On 8 November, 1823, the appellant obtained, before a magistrate
in Washington County, a judgment against Shields for $30.25, and a
fieri facias issued thereon, on 10 June, 1824, which was
levied by the constable upon the right, title, estate, interest,
and claim of Shields in the lot in question. At the sale of the lot
under this execution, the appellant became the purchaser at the
price of $54, and the constable, by a deed dated 19 August, 1825,
and recorded 9 January, 1826, conveyed the right and title of
Shields in the lot to the appellant.
The bill was brought by the appellant against the appellee,
Shields, the representatives of Cocklin and of Franks, stating the
above facts, which are all that are material to a correct
understanding of the case, charging that the mortgage of Franks was
fraudulent and covinous and that all the conveyances to the
appellee were made with full knowledge by all parties of the
appellant's purchase and rights; averring his readiness to pay all
that Shields was bound to pay for the property in question at the
time of his purchase to Cocklin or his heirs or to the
representatives of Franks, then deceased, and praying that all the
parties might be compelled to assign their pretended rights and
claims to the property in question to the complainant and deliver
up quiet possession of the premises, and for general relief.
The view which we have taken of the case renders it unnecessary
to state the grounds of defense taken in the several answers. It
will be sufficient to say that there is no proof in the cause,
except the answers, as far as they are responsive to the bill, and
the several exhibits with the bill and answers; that all the facts
stated above are contained in the bill itself, and proven by the
exhibits; and that there is no evidence to sustain either fraud, or
notice, as alleged in the bill.
Upon this state of the case, the question arises whether the
appellant is entitled to the relief which he prays for. The only
interest which the appellant can claim in the property in question
is derived from the levy made by the officer under his execution
and the purchase made by him at the sale under that execution of
whatever right, title, and claim Shields had in the property. Now
it must be borne in mind that not only before the sale, but even
before the levy, Shields had mortgaged the lot to Franks, and
Page 38 U. S. 298
consequently his right was only an equity of redemption. Was
this such a right or interest as that a
fieri facias could
be levied upon it? The principle of the common law undoubtedly is
that no property but that in which the debtor has a legal title is
liable to be taken by this execution, and accordingly it is well
settled in the English courts that an equitable interest is not
liable to execution. 1 Vesey Jr. 431; 8 East 467; 5 Bos. &
Pull. 461.
In the United States, different views have been taken on this
question in the courts of the several states. It is said in 4
Kent's Commentaries 153-154 that courts of law have, by a gradual
and almost insensible progress, adopted the views of a court of
equity on the subject of mortgages, which are founded in justice
and accord with the true intent and inherent nature of the
transaction; that except as against the mortgagee, the mortgagor,
while in possession, and before foreclosure, is regarded as the
real owner; and that in this country the rule has very extensively
prevailed that an equity of redemption was vendable as real
property on an execution at law, and that it is also chargeable
with the dower of the wife of the mortgagor, and cases are referred
to in New York, Connecticut, and other states in support of the
proposition. On the contrary, it has been held in Virginia that the
resulting interest of a grantor in a deed of trust made to secure
debts cannot be reached by execution. 6 Rand. 255. And this
principle is not without some strong reasons in its support,
independently of mere authority. Amongst others, Lord Ellenborough
very cogently remarks in 8 East 481 that the sheriff could only
sell subject to the trusts; that the execution creditor or the
vendee would still be obliged to go into equity to get an account
or to redeem prior encumbrances, which might be done in the first
instance by a judgment creditor with less expense and delay,
besides the destruction of the debtor's estate, which under so much
doubt and difficulty would sell greatly under value, so that a
large equitable interest might be exhausted in satisfaction of a
small demand, to the detriment of other creditors.
Whatsoever may have been the decisions upon this subject in the
courts of some of the states in which the courts of law have, "by a
gradual and almost insensible progress, adopted the equitable views
of the subject," we must be governed in deciding this case by that
law which Congress enacted for the District of Columbia on assuming
jurisdiction over it. It adopted the laws of Maryland then in force
as far as regards that part of the District in which this question
arises. Amongst those laws was the common law. Now we have already
seen that by the common law, an equitable interest such as an
equity of redemption is not liable to execution. This would be
decisive of the case unless there should be found to be some
legislation or some course of authoritative judicial decision which
had so far modified the common law by engrafting upon it the
principles of the court of equity in relation to mortgages as to
change the rule in this respect. It is not pretended that any
legislative act has produced this effect. Is there any course
of
Page 38 U. S. 299
judicial decision which does? Three Maryland cases have been
cited for this purpose. As to two of them,
viz., Purl v.
Duvall, 5 Harr. & Johns. 69, 74, and
Ford v.
Philpott, 5 Harr. & Johns. 312, it would be sufficient to
say, that they had been decided many years since the cession by
Maryland of that part of the district in which this question
arises, was made, and therefore, whatever respect might be due to
them, they are not authority. As to the case of
Campbell v.
Morris, which was decided in the year 1797, we are informed
that the Chief Justice of the court had declared that the covenant
for quiet enjoyment in that case was a legal estate, which was
attachable, and that the court gave no opinion whether an equity of
redemption was liable to attachment.
But without examining these cases in detail, or undertaking to
say that they would leave the question entirely free from doubt, we
think that there is enough both in the legislation and judicial
decisions of Maryland and in a decision of this Court to show how
the law is understood there.
As to legislation. By the act of assembly of 1810, sheriffs,
under a
fieri facias, are authorized to seize and expose
to sale any equitable estate or interest which the debtor may have
in any lands, tenements, or hereditaments. Now why was this act
passed? If such had been considered the principle at common law,
the act would have been mere supererogation. It is therefore in our
opinion decisive evidence to prove that the contrary was considered
to be the law before its passage, as it does not profess to be a
declaratory act.
But let us for a moment examine the judicial decisions of
Maryland and one in this Court.
In 6 Gill & John. 72, it is decided that a mortgagor cannot
maintain trespass against a mortgagee. On the contrary, in 11 John.
534, it is decided that a mortgagor may maintain trespass against
the mortgagee. In 4 Kent's Com. 154 it is said that an equity of
redemption is chargeable with the dower of the wife of the
mortgagor. On the contrary, this Court, in the case of
Stelle v.
Carroll, at the last term, 12 Pet. 201, professing
to follow the law of Maryland -- in other words, the common law --
decided that the widow of a mortgagor was not dowable of an equity
of redemption. Now why these contrary decisions upon these two
important points, in relation to the nature and character of the
interest and title of a mortgagor? There can be but one answer.
That in New York and other states, following a similar course, the
courts of law had, by a gradual progress, adopted the views of a
court of equity in relation to mortgages; and considered the
mortgagor, except as against the mortgagee, whilst in possession,
and before foreclosure, as the real owner, and even as against the
mortgagee's having the right of possession, whilst in Maryland, as
we learn from the case before referred to, in 6 Gill & Johnson,
the legal estate is considered as being vested in the mortgagee,
and that as soon as the estate in mortgage is created, the
mortgagee may enter into possession, though he seldom avails
himself of that right. In these antagonist
Page 38 U. S. 300
doctrines, we have the clue to the opposing decisions of the
courts. Neither dower can be recovered, nor trespass maintained,
where there is a mere equity, nor, where that is the case, can a
fieri facias be levied. The same principle, then,
precisely, which in Maryland precludes the recovery of dower by the
widow of a mortgagor, or the maintenance of an action of trespass
by a mortgagor against a mortgagee, exempts also the equity of
redemption of a mortgagor from being liable to execution.
But there is a case decided at the last December term of the
Court of Appeals of Maryland which, we think, puts an end to all
question in this case. From a manuscript record of that case, which
has been laid before us, we extract the following language:
"The last point raised by the appellants is that the property
taken under the execution was not legally the property of Brady,
and that equitable interests in personal property are not the
subjects of an execution. With the appellant's premises on this
point, as legal propositions, we see no reason to find fault. It
cannot be denied as a legal principle that a debtor's equitable
estate in personal property cannot at law be seized and sold under
a
fieri facias."
Now this was the case of personal estate, but it proves,
clearly, that but for the act of 1810, before referred to, the same
principle would have applied to real estate, for the difficulty
does not grow out of the kind of property, but out of the kind of
interest in the property, to-wit, that it is equitable, and not
legal.
Upon these grounds, we think that Shield's interest in the lot
was not subject to execution, on account of its being an equity of
redemption.
There is one ground stated in the manuscript opinion of the
Court of Appeals of Maryland, before referred to, in relation to
this subject, which it may be proper to notice.
It is there said that, as in case of equitable interests, a
court of equity would, after an execution issued and a return
showing that there was no available remedy at law, assist the
party, by charging the equitable interest; so the court, if applied
to for that purpose, would decree a ratification of a sale of such
interest, where it had been made by the officer under the
execution. Whatever might be the authority of a court of equity on
this subject as against Shields himself, it could not be done in
this case, because here there are third parties who have, for a
valuable consideration, without notice, acquired a previous
equitable right, and gotten in, also, the legal estate. So that
they stand upon the great principle that they have the prior
equity, and that equity fortified by the legal title.
But there is another view of this case, which we will present
very briefly, which also brings us to the conclusion that Shields'
interest in the lot in question would not have been liable to
execution, even if it had not been encumbered by a previous
mortgage. And it is this: beyond the mere lease for years, Shields
had no interest whatsoever in the lot, but the right to purchase,
in case he, by a given time, complied with the particular
conditions. Now
Page 38 U. S. 301
this right to purchase, we consider nothing more than a contract
by which the party was entitled, if he had elected to have done so,
upon certain terms, to secure to himself certain benefits. In other
words, at the time of the levy of the appellant's executions,
Shields had a conditional right to purchase which in effect was
nothing more than a chose in action. We do not think it necessary
to refer to authorities to sustain a proposition so well settled,
as that an execution of
fieri facias cannot be levied on a
chose in action.
But even if this could be done, no one could derive a greater
benefit under that contract than the party himself, and Shields
could not have claimed the benefit of the election given to him to
purchase, because it depended, in its very terms, on particular
conditions to be performed by him, at a particular time, which were
not performed. Upon these grounds, we think that Shields had not
such an interest in the lot in question as was liable to execution;
that consequently the appellant acquired no right by his purchase,
which gives him a stand in a court of equity to ask for the right
of redemption or any other relief. The decree of the circuit court
is therefore right, and 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 adjudged and decreed by
this Court that the decree of the said circuit court in this cause
be, and the same is hereby, affirmed with costs.