In Kentucky, the creditor obtains a lien upon the property of
his debtor by the delivery of a
fi. fa. to the sheriff,
and this lien is as absolute before the levy as it is
afterwards.
Therefore a creditor is not deprived of this lien by an act of
bankruptcy on the part of the debtor committed before the levy is
made, but after the execution is in the hands of the sheriff.
The following is the entire record in the case:
"The following statement of questions and points of law which
arose in this case, and the adjournment thereof into the Supreme
Court of the United States for decision, was ordered to be entered,
to-wit: "
"Savage had the title to the land; the plaintiff claimed under
the decree of his bankruptcy, the defendant, under a sheriff's sale
under an execution."
"The act of bankruptcy of Savage was committed on 27 April,
1842; the petition of his creditors was filed against him in the
district court on 25 day of June, 1842, and he was declared a
bankrupt on 26 October, 1842; the plaintiff was appointed the
assignee, and this is his title."
"An execution of
fieri facias on a judgment against the
estate of Savage was delivered to the sheriff on 9 April, 1842,
before the act of bankruptcy, and was levied on the land on the day
of before the petition; but after the act of bankruptcy the
defendant purchased at the sheriff's sale, had his deed, and this
was his title."
"The question was, has the plaintiff, by the decree of
bankruptcy and its relation back to the act of bankruptcy, the
elder and better title, or has the defendant, by the prior delivery
of the execution into the hands of the sheriff, and his levy of it
before the petition was filed, the prior and superior title?"
"On this question the judges were divided and opposed in
opinion; whereupon, on motion of the counsel of the plaintiff, the
question is stated and ordered to be certified to the supreme court
for decision. "
Page 44 U. S. 118
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
This case comes before the court upon a certificate of division
between the judges of the Circuit Court of the United States for
the District of Kentucky upon the following statement:
"Savage had the title to the land; the plaintiff claimed under
the decree of his bankruptcy; the defendant, under a sheriff's sale
under an execution."
"The act of bankruptcy of Savage was committed on 27 April,
1842; the petition of his creditors was filed against him in the
district court on 25 June, 1842, and he was declared a bankrupt on
26 October, 1842; the plaintiff was appointed the assignee, and
this is his title."
"An execution of
fieri facias on a judgment against the
estate of Savage was delivered to the sheriff on 9 April, 1842,
before the act of bankruptcy, and was levied on the land on the ___
day of _____ before the petition; but after the act of bankruptcy,
the defendant purchased at the sheriff's sale, had his deed, and
this was his title."
"The question was has the plaintiff, by the decree of bankruptcy
and its relation back to the act of bankruptcy, the older and
better title, or has the defendant, by the prior delivery of the
execution into the hands of the sheriff and his levy of it before
the petition was filed, the prior and superior title?"
The statute of Kentucky upon this subject provides
"That no writ of
fieri facias or other writ of
execution shall bind the estate of the defendant or defendants but
from the time such writ shall be delivered to the sheriff or other
proper officer to be executed."
According to the laws of that state, a judgment is not a lien
upon land and the real as well as personal estate is not bound
until the process of execution against the property of the
defendant is delivered to the officer. The question to be
determined is whether the delivery of the
fieri facias to
the sheriff to be executed created a lien on the property of the
defendant for the amount for which the execution was
Page 44 U. S. 119
issued? If it, did, the title of the defendant is the superior
and better title, and protected by the last proviso in the 2d
section of the act to establish a uniform system of bankruptcy
throughout the United States.
In construing the statute above mentioned, the decisions of the
courts of Kentucky have not been entirely uniform. In the case of
Tabb v. Harris, 4 Bibb 29, decided in 1816, it was held
that the delivery to the sheriff created no lien on the property of
the defendant. In a subsequent case, however, in the same volume,
Daniel v. Cochrane's Administrator, 4 Bibb 532, decided in
1817, the court, in delivering their opinion, speak of the lien of
fieri facias, from the time it was delivered to the
sheriff to be executed, as if it were a known and settled principle
of law in that state. But this was out the main point in that case,
which turned upon the question, whether the execution continued to
bind the property of the debtor until the judgment was satisfied.
The court held that it did not, and that the lien ceased after the
return day of the execution, if it was not levied before. The
question, as to the lien acquired by the delivery to the officer,
again arose in the case of
Kilby v. Haggin, 3 J.J.Marsh.
208, and in this case, which was decided in 1830, the doctrine in
the case of
Tabb v. Harris was fully sustained, and it was
directly and distinctly decided that the delivery to the sheriff
created no lien against any other creditor and that an execution
afterwards placed in the hands of the sheriff, if first levied upon
the property, was entitled to a preference.
But in the case of
Million v. Ryley, 1 Dana 360,
decided in 1833, the court held that the plaintiff obtained a lien
by the delivery to the sheriff, and that the title acquired by the
purchaser, when the execution was regularly levied and the property
sold, related back to the delivery to the officer, and they speak
of this lien as secured to the creditor by the Kentucky statute. In
1837, this subject again came before the court, in the case of
Addison v. Crow, 5 Dana 274, and in this case the question
appears to have been very fully considered, and the case of
Million v. Ryley was referred to and commented on, and the
principle decided in it in relation to the lien of an execution
reaffirmed. In this case, the court said
"the levy of a
fieri facias upon the land of the debtor
undoubtedly renders the lien more specific, and being a necessary
step in the execution of a writ, completes the authority of the
officer to sell, and has the further effect of giving continuance
both to the authority and the lien, which would otherwise expire
with the return of the writ. And we do not perceive any necessity
or reasonable ground for ascribing to it any other efficacy than
this,"
and in page 277 of the same case, the court again said,
"no reason appears for attributing to a levy any efficacy except
as one step towards the consummation of the lien arising from the
delivery of the execution to the officer. "
Page 44 U. S. 120
This is the latest decision in the courts of the state to which
we have been referred, or of which we are aware, and, as we have
already said, it appears to have been well considered. And whatever
doubts might before have been entertained, we must, under the
authority of this case, regard it as the settled law of the state,
that the creditor obtains a lien upon the property of his debtor by
the delivery of the
fieri facias to the sheriff; that it
acquires no additional validity or force by being actually levied,
but that the lien is as absolute before the levy as it is
afterwards, and continues while the process remains in the hands of
the sheriff to be executed.
In this view of the subject, it is unnecessary to examine or to
remark upon the cases which have been decided in other states or in
England, because the question depends altogether upon the law of
Kentucky. And as by the laws of that state a
fieri facias,
when delivered to the sheriff, is a lien upon the property of the
debtor while it continues in the hands of the officer to be
executed, the creditor is not deprived of this lien by an act of
bankruptcy on the part of the debtor committed before the levy is
made, but after the execution is in the hands of the sheriff. In
the case before us, therefore, the Court is of opinion that the
defendant, by the prior delivery of the execution and the
subsequent levy and sale, has the prior and superior title, and we
shall
Certify accordingly to the circuit court.