By the law of Mississippi, a judgment is a lien upon personal as
well as real estate from the time of its rendition.
Where there has beets a judgment, an execution levied upon
personal property, and a forthcoming bond, the property levied upon
is released by the bond, and the lien of the judgment
destroyed.
If, therefore, after this, another judgment be entered against
the original defendant, this second judgment is a lien upon the
property which has been released by the bond.
The lien thus acquired by the second judgment is not destroyed
by subsequently quashing the forthcoming bond. The effect of such
quashing is not to revive the first judgment, and thus restore the
lien which was superseded by the execution of the bond.
If the forthcoming bond had been shown to have been void
ab
initio, the result would be different.
In cases of conflicting executions issued out of the federal and
state courts, a priority is given to that under which there is an
actual seizure of the property first.
The mode in which bills of exceptions ought to be taken, as
explained in
Walton v. United
States, 9 Wheat. 651, and in
29 U. S. 4 Pet.
102, will be strictly adhered to by this Court.
This was a writ of error to the District Court of the United
States for the Northern District of Mississippi, to bring up for
review certain instructions delivered to the jury in an action of
trover, brought by the defendant in error against the plaintiff in
error, and in which the plaintiff below obtained the verdict.
The case was this. Brown, the defendant below, obtained a
judgment of $8,640.37, by confession, against one Haywood Cozart,
in the Circuit Court of Lafayette County, Mississippi, which was
docketed on 18 May, 1840. Upon which execution was issued on 6 and
delivered to the sheriff on 20 June following, and a levy made the
same day on several slaves, the property of the defendant on the
execution. A forthcoming bond was given by the defendant, with H.
M. Cozart as surety, and which was approved of by Brown, the
plaintiff.
This bond is in the penalty of double the amount of the
judgment, made payable to the plaintiff in the execution, and
conditioned well and truly to deliver the property levied on to the
sheriff on 17 August (then) next, the day of sale, at a certain
place, to be sold to satisfy the judgment, unless the same should
be previously paid.
Clarke, the defendant in error, recovered a judgment of
$2,117.31 against the same Haywood Cozart, in the District Court of
the United States for the Northern District of Mississippi, at the
June term of said court, 1840; upon which an execution was issued
to the marshal of the district, and a levy made, on 9 November
following, upon six of the slaves in the possession of Cozart, and
which had been before levied on under Brown's execution. They were
sold by the marshal on 7 December thereafter, and purchased in by
Clarke, the plaintiff, the highest bidder.
Page 45 U. S. 5
The sheriff returned upon the execution in the case of
Brown
v. Cozart, and upon the forthcoming bond, that the property
was not delivered in pursuance of the condition, nor the money
paid, and that it was therefore forfeited. And Brown, at the
November term of the Circuit Court of Lafayette County, at which
the execution was returnable, made a motion to the court to quash
the bond, which was granted accordingly; the ground of the motion
is not stated. And on the same day, 23 November, 1840, he sued out
an alias
fieri facias on the original judgment, returnable
at the next term of said court.
To this execution, the sheriff returned that he had levied upon
six slaves, naming them, in the hands of the Marshal of the
Northern District of Mississippi, and also on other property which
it is not material to notice. And further, that after the sale of
the slaves by the marshal, he was indemnified by Brown, and
required to make a levy upon them on 7 December, 1840, and that, on
4 January following, he sold them, by virtue of the execution, to
Brown, the highest bidder.
It further appeared that, at the time the marshal levied on the
slaves, 9 November, 1840, Cozart had some fifteen or eighteen other
slaves in his possession; that the marshal took those levied on
into his custody, and on the sale under the execution delivered
them to Clarke, the purchaser; and that they were afterwards taken
out of his possession by the sheriff, under his execution, by the
direction of Brown; that Hiram M. Cozart, the surety in the
forthcoming bond, was a brother of Haywood Cozart, was a man of but
little property, and lived with his brother, some six miles distant
from Prown; and that after the levy by the marshal, and before the
sale, the two Cozarts left the State of Mississippi for Texas, and
carried away with them the fifteen or eighteen slaves not levied on
by this officer.
When the testimony closed, the counsel for the plaintiff,
Clarke, requested the court to give the following instructions to
the jury, namely, that if they believed the marshal made lawful
levy on the property in dispute, the sale under his execution was
valid, and vested in the purchaser a good title against other
executions, whether founded on judgments of the state or federal
courts; and that if they believed that the sheriff levied his
execution on the slaves and took a forthcoming bond, which was
afterwards forfeited, the same was a satisfaction of the original
judgment, and the subsequent quashing of the same did not affect
the rights of the plaintiff, acquired by virtue of the marshal's
levy after such forfeiture of the bond, and also, if they believed
that the sheriff, after his levy, took a forthcoming bond, which
was afterwards forfeited, and that the salves therein named
remained in the possession of the defendant Cozart, the levy of the
marshal, made after the forfeiture of said bond and sale in
pursuance thereof, were
Page 45 U. S. 6
valid, notwithstanding the bond was quashed before the sale, but
after the levy. And, further, if the jury believed that the
defendant, Brown, agreed to approve of the surety on the
forthcoming bond, and thereby permitted the slaves to remain in the
possession of the said Cozart, the subsequent quashing of the bond
upon his own motion did not place him in any better situation than
if he had not issued an execution on the judgment. And, also, if
they believed the approval of the bond by Brown was with a view to
allow Cozart to remain in possession of said slaves, and to keep
off and delay other creditors, then they should find for the
plaintiff, and, also, if they believed the conduct of Brown was
fraudulent in obtaining proceedings on his judgment, then they
should find for the plaintiff. All which instructions were objected
to by the defendant's counsel, but the objection was overruled by
the court, and the instructions given.
The counsel for the defendant proposed the following
instructions, namely that, if the jury believed from the evidence,
the defendant, Brown, obtained a prior judgment in the circuit
court of Lafayette County to the judgment obtained by the
plaintiff, Clarke, in the district court of the United States,
Brown thereby obtained a prior lien upon Cozart's property for the
satisfaction of his judgment, and that said lien could only be
defeated and postponed by some act of Brown fraudulent in law; that
the taking of the forthcoming bond by the sheriff, and the quashing
of the same, were not acts deemed fraudulent in law; that the levy
and sale of the slaves of Cozart by the marshal, by virtue of an
execution on a junior judgment, was subject to the lien of the
prior judgment, and communicated no title to the purchaser
paramount to the lien of the prior judgment; that the forfeiture of
a forthcoming bond, which is quashed for want of conformity to the
statute, is not such an one as has the force and effect of a
judgment, because not in conformity to the statute. Which
instructions were objected to by the counsel for the plaintiff, and
were refused by the court.
The record adds the jury returned a verdict for the plaintiff,
and the defendant moved the court to set it aside and grant a new
trial, which motion was overruled. To all which the defendant
excepts, and tenders this his bill of exceptions, which he prays
may be signed and sealed by the court.
Page 45 U. S. 12
MR. JUSTICE NELSON delivered the opinion of the Court.
By the law of the State of Mississippi, a judgment is a lien
upon the personal as well as real property of the defendant, from
the time of its rendition,
Smith v.
Everly, 4 How. 178;
Commercial Bank of
Manchester v. Coroner of Yazoo County, 6 How. 350,
and if the first judgment obtained by Brown against Cozart could be
upheld against the objections taken to it, there is no doubt,
according to the law of Mississippi, that the instructions given by
the court below to the jury were erroneous. That judgment was
docketed on 18 May, 1840, whereas Clarke's was not recovered till
16 June following.
It is insisted, however, that the seizure of the property of the
defendant by the sheriff, under the first judgment, an discharge of
it on the execution and delivery of the forthcoming bond, operated
to extinguish the lien, and let in that of the junior judgment of
Clarke, so as to give it the preference. This raises the principal
question discussed in the case.
By the act of 1827, Laws of Miss., 123, § 2, the sheriff or
other officer is required, upon the levy of an execution upon
personal property, to take a bond, if tendered, with sufficient
security, from the debtor, payable to the creditors, reciting the
service of such execution, and the amount due thereon, in a penalty
of double the amount of such execution, with condition to have the
property levied on forthcoming at the day of sale; and if the
owners of such property or the defendant in the execution shall
fail to deliver the same according to the condition of the bond,
such sheriff or other officer shall return the bond so forfeited,
with the execution, to the court from which the same issued, on the
return day thereof; and every bond so forfeited shall have the
force and effect of a judgment, and execution shall issue against
all the obligors thereon &c.
Under this statute, it appears to have been uniformly held in
the courts of Mississippi, that the bond thus given to the creditor
on the seizure of the goods was intended as a substituted security
for the lien acquired by the judgment and seizure, and
consequently, on its execution and delivery, the goods, by
operation of law, are released from all charge, and left in the
possession of the debtors as free and unencumbered as before it
attached, and if the property is not delivered, in pursuance of the
condition, the remedy is then upon the bond, which on the breach or
forfeiture becomes, by
Page 45 U. S. 13
operation of the statute, a statutory judgment against the
defendant and sureties from that time, followed by a new lien upon
the real and personal estate of all the obligors. The original
judgment is merged and satisfied by the new and more comprehensive
statutory judgment upon the bond, and the remedy of the creditors
limited to the enforcement of this judgment.
This is, in substance, the view of the statute as expounded by
the courts of Mississippi in several cases, and particularly in the
case of
Bank of the United States v. Patton, 5 How. 200,
in the court of appeals, which was argued twice, and very fully
considered by the court.
Stewart v. Fuqua, Walk.R. 175;
Witherspoon v.
Spring, 3 How. 60;
Archibald v. Anderson,
2 How. 852;
King v. Terry, 6 How. (Miss.) 513;
Minor v.
Lancashire, 4 How. 347. In the case of
Bank of
the United States v. Patton, the Court, speaking of what would
have the effect of the forthcoming bond, if the statute had not
annexed to it the force of a judgment, say
"As it releases the levy, and restores the property to the
debtor, it is tantamount to a satisfaction of the execution, and
the creditor would be left to pursue his remedy upon the bond."
The court then liken it to the replevin bond in Virginia, which
had been held to be a substitute for the original judgment, and
operated as a satisfaction; and add
"It was no doubt in view of this principle that the framers of
our statute saw proper to relieve the creditors from the delay and
expense of a second suit upon the bond, by giving to it after
forfeiture the force of a judgment against all the obligors
therein, with a consequent right to have execution on the same, and
also to provide, that no security should be taken on the execution
which is sued out upon the new judgment."
It will be seen, therefore, that the forthcoming bond and
statutory judgment consequent upon the forfeiture, in its operation
and effect, reversed the original position of these parties in
respect to the priority of lien under their respective judgments,
and gave to Clarke, the plaintiff below, the preference, his
judgment having been docketed 16 June, and the new judgment of
Brown not taking effect till 17 August, the date of the forfeiture
of the bond.
(Minor v. Lancashire.)
If the case stood upon this footing, it is very plain that
Clarke, the purchaser under the sale of the marshal, acquired the
better title to the property in question, and that the instructions
were in conformity to the law of the case.
It is contended, however, that the quashing of the forthcoming
bond, and consequently the new statutory judgment, operated to
revive the original one, and to restore the priority of lien, the
same as it stood before any of the proceedings on that judgment had
intervened.
Page 45 U. S. 14
We do not assent to this view of the effect of the order
vacating the new judgment, so far, at least, as respects the liens
or rights of third parties which have legally attached in the
meantime to the goods of the defendant, discharged from the
original judgment by the giving of the forthcoming bond. After that
lien was suspended or discharged, the original judgment being in
contemplation of law satisfied by the new and substituted security,
the debtor was at liberty to deal with the property as his own, and
it remained in his possession, subject to any charge or lien
impressed upon it either by the act of the party or by operation of
law the same after the forthcoming bond as before the entry of the
original judgment. Possibly as between the parties the judgment
revived, but it would be against principle, and work manifest
injustice, to give to it this retrospective operation so as to
extinguish the intermediately acquired legal rights of third
persons. We deny to it this effect.
It would be otherwise if the forthcoming bond had been shown to
be void, as it might then be treated as a nullity and as affording
no foundation for the statutory judgment consequent upon the
forfeiture. Under such circumstances, the lien of the original
judgment would remain unaffected, and might be enforced by
execution; it would then, of course, continue uninterrupted by the
lien of any subsequent judgment entered up against the
defendant.
This view of the statute was taken by the court of Mississippi
in
Carleton v.
Osgood, 6 How. 285.
But no such ground is presented in the record before us; nor did
it exist in point of fact in the case. On the contrary, the
forthcoming bond was in conformity to the statute, and the only
reason for the action of the court in quashing the proceedings, for
aught that appears or has been shown, was either that the tribunal
conceded to the plaintiff the right to vacate his own judgment at
his election, and thus voluntarily give up all the rights acquired
under it, or that the surety was irresponsible, which latter ground
would probably have been unavailing had the fact appeared before
the court, the Brown himself, with full knowledge of all the
circumstances, approved of the sufficiency of the security.
At all events, it is enough to sustain the ground upon which we
have placed the priority of lien upon the property, that, for aught
appearing in the case, the new judgment of Brown upon the
forthcoming bond was regular, and existed in full force and effect
until set aside and vacated on his own motion. For, if so, it is
clear, upon the statute and decisions of the courts of Mississippi,
that the lien of his original judgment against Cozart became
thereby lost and postponed, so as to let in that of the junior
judgment of Clarke, and consequently the sale of the marshal, by
virtue of the execution under it, vested in the purchaser the
better title.
We have thus far examined this case upon the law of
Mississippi,
Page 45 U. S. 15
where the cause of action arose, as we understand it to have
been expounded and applied by the courts of that state.
Another view may be taken, leaving out of consideration the
priority of lien as acquired under the judgments of the respective
parties, and looking solely to priority as acquired by virtue of an
actual seizure of the property under execution, regarding that as
the test in cases where the conflicting executions issued out of
the federal and state courts, and to the executive officers of the
different jurisdictions.
Hagan v.
Lucas, 10 Pet. 400. In this aspect of the case, the
legal result is equally decisive in favor of the right of the
plaintiff below.
If we have not misapprehended the rule of law prevailing in
Mississippi in the view already taken, the right to the property
acquired under the seizure of the first execution of Brown became
extinguished by the operation and effect of the forthcoming bond.
No title, therefore, can be set up by virtue of that seizure.
The case, then, as it respects the right depending upon priority
of actual seizure and legal custody of the property, instead of
priority of judgment, stands thus: the marshal levied upon the
slaves on 9 November; the sheriff not till 7 December following.
The former, therefore, under the law giving effect to the first
seizure, was entitled to the property, and of course the purchaser
at his call acquired the better title.
In every view we have been able to take of the case, we are
satisfied the judgment of the district court was right, and should
be
Affirmed.
The Court has had some difficulty in noticing the exceptions
taken to the instructions in this case in the form in which they
are presented upon the record. It is matter of doubt whether they
point to the instructions given and refused to the jury, or the
refusal of the court below to grant a new trial. If to the latter,
no question is presented upon which error would lie according to
the repeated decisions of this Court.
17 U. S. 4 Wheat.
213;
19 U. S. 6 Wheat.
542.
The counsel were probably misled, in making up the record, by
the practice in Mississippi, where error will lie to the appellate
court for a refusal to grant a new trial by statute. Laws of Miss.,
p. 493, § 53. But the rule is otherwise in the federal courts. That
state has also a statute providing for the case of exceptions to be
taken in the progress of the trial in the usual form (p. 620, §
40), which is the form that should have been observed in this case.
The practice is particularly stated and explained in
Walton v. United
States, 9 Wheat. 651, and in several later cases,
29 U. S. 4 Pet.
102.
The practice is well settled and exceedingly plain and simple,
and will be strictly adhered to by the Court.
