Where a Judgment was obtained in the Circuit Court of the United
States for the District of Mississippi in 1839, and in 1841 the
State of Mississippi passed a law requiring judgments to be
recorded in a particular way in order to make them a lien upon
property, this statute did not abrogate the lien which had been
acquired under the judgment of 1839, although the latter had not
been recorded in the manner required by the statute.
The facts are fully set forth in the opinion of the Court, as
delivered by MR. JUSTICE McLEAN, to which the reader is
referred.
Page 48 U. S. 764
MR. JUSTICE McLEAN delivered the opinion of the Court.
This action was brought in the Southern District of Mississippi,
to try the right of property which had been levied on. The
plaintiffs showed a judgment of the circuit court, entered the
first Monday of November, 1839, for $3,716.43, with interest
&c., against one J. J. Chewning and others, on which an
execution had been issued and levied upon certain slaves claimed by
A. C. Downs. At the time of the levy, the property was in
possession of the defendant Chewning. Downs produced a mortgage on
the slaves, executed by said Chewning, and regularly recorded, in
favor of the "Commercial Railroad Bank of Vicksburg," to show a
title in the bank adverse to the right of the plaintiffs. This
mortgage bears date subsequent to that of the judgment.
On these facts, the court were requested by plaintiffs to
charge
Page 48 U. S. 765
the jury
"to disregard the mortgage, because of the paramount right of
the plaintiffs to have execution of their judgment by means of said
levy, although no abstract or brief of the judgment had been
recorded or enrolled in the county where the property was
situated."
And on this prayer for instruction to the jury, the opinions of
the judges were opposed, and at the request of the counsel on both
sides the point was certified to this Court.
By the first section of the Act of Mississippi of February 6,
1841, it is provided that
"All judgments and decrees of any circuit, district, or superior
court of law or equity holden within this state shall operate as
liens from the date of their rendition upon the property of the
debtor, being within the county in which the sitting of such court
may be holden and not elsewhere, unless upon compliance with the
conditions hereinafter enacted."
By the second section,
"That any judgment or decree heretofore rendered shall be a lien
from the date of its rendition upon the property of the debtor,
situated in any other county than that in which the same was
rendered, on condition that an abstract thereof, on or before the
first day of July next, be filed in the office of the circuit court
of the county in which said property may be situate, in pursuance
of the subsequent section of this act."
The third section provides that where an abstract of a judgment
or decree is filed in the office of the clerk of the circuit court,
which it is made his duty to record, it shall be a lien on the
property of the defendant within the county from the time of such
filing.
The judgment under which the levy was made was rendered more
than a year before the above act was passed.
Prior to the act of 1824, there was no statutory lien of a
judgment in Mississippi. A lien was created in that state, as in
England, by the delivery of the execution to the sheriff. The Stat.
of Westm. 2, or 13 Ed. I, ch. 18, gave the
elegit which
subjected real estate to the payment of debts, and this, as a
consequence, it has always been held, gave a lien on the lands of
the judgment debtor. 3 Salk. 212; 1 Wils. 39.
"There is no statute in Virginia which in express terms makes a
judgment a lien upon the lands of the debtor. As in England, the
lien is the consequence of a right to take out an
elegit."
United States v.
Morrison, 4 Pet. 136. And in
Bank of the United
States v. Wooster, 2 Brock. 252, the Chief Justice says "The
lien depends on the right to sue out an
elegit."
The same doctrine was held by the Supreme Court of Indiana
Page 48 U. S. 766
before the act of 1818 of that state, which gave a lien on the
real estate of the defendant by the judgment.
Ridge v.
Prather, 1 Blackf. 401.
In North Carolina, the lien on lands is created by the delivery
of the execution to the sheriff, there being no statute in that
state on the subject. And in other states of the Union the same
principle has been long established.
Now in all these cases the lien arises from the power to issue
process to subject real estate to the payment of the judgment
either by an extension or sale. In Maryland, this rule has been
extended by long usage, so that a lien is created by the judgment
without execution.
Tayloe v.
Thompson, 5 Pet. 369.
The circuit courts of the United States exercise jurisdiction
coextensive with their respective districts. And it has never been
supposed that by the Process Act of 19 February, 1828, which
adopted the process and modes of proceeding of the state courts,
the jurisdiction of the circuit courts was restricted. The "process
and modes of proceeding" in the state were adopted by Congress in
reference to the jurisdiction of the circuit courts, and not with
the view of limiting the jurisdiction of those courts.
In those states where the judgment on the execution of a state
court creates a lien only within the county in which the judgment
is entered, it has not been doubted that similar proceeding in the
circuit court of the United States would create a lien to the
extent of its jurisdiction. This has been the practical
construction of the power of the courts of the United States,
whether the lien was held to be created by the issuing of process
or by express statute. Any other construction would materially
affect and in some degree subvert the judicial power of the Union.
It would place suitors in the state courts in a much better
condition than in the federal courts.
That by the course of practice in Mississippi, the lien of a
judgment in the circuit court extended throughout the district,
prior to the act of 1841, is not controverted. And the question is
whether that act can impair or affect in any respect a judgment
rendered in the federal court before its passage. The point
certified does not require us to consider whether the law can
operate on judgment liens entered subsequent to its date. The
plaintiffs in the above judgment acquired a right under the
authority of the United States, and that right may be protected
from any judgment of the supreme court of the state which shall
impair it under the twenty-fifth section of the Judiciary Act.
Page 48 U. S. 767
It is contended that the lien in Mississippi exists by the
statute of the state, and that under the thirty-fourth section of
the Judiciary Act of 1789 it is a rule of property, and that it is
consequently a rule of decision for the courts of the United
States, and that the process act of 1828 has no bearing upon the
question.
The above section provides that
"The laws of the several states, except where the Constitution,
treaties, or statutes of the United States shall otherwise require
or provide, shall be regarded as rules of decisions in trials at
common law, in the courts of the United States in cases where they
apply."
No state statute is of more frequent application in the federal
courts than the above section, and it has often been held that the
settled construction of a state statute by its supreme court is
considered as a part of the statute. And the statute, as thus
expounded, is regarded as a rule of decision in the courts of the
United States where it applies "except where the Constitution or
acts of Congress otherwise provide."
The thirty-fourth section has never been considered as an act to
regulate process. And it is argued that a statutory lien, being a
rule of property, is applied to judgments in the circuit courts
under this section, without being influenced in any degree by the
Process Act.
We have seen that where there is no statutory lien, it is
created by issuing and delivering to the sheriff an execution,
which authorizes the sale or extension of the real estate of the
defendant. In those states, it is the process authorized by the
judgment which creates the lien, and in such cases we necessarily
look to the nature of the process and the extent of its operation
to determine the lien. It must act upon the land of the defendant,
and consequently the land must lie within the jurisdiction of the
court.
What is a judgment lien? In the argument, it was compared to a
mortgage.
"A mortgage is often called a lien for a debt, but it is
something more. It is a transfer of the property itself as security
for the debt. This is true in law and in equity."
Conard v. Atlantic
Insurance Company, 1 Pet. 441. A judgment lien on
land constitutes no property or right in the land itself.
"It only confers a right to levy on the same, to the exclusion
of other adverse interests subsequent to the judgment, and when the
levy is actually made on the same, the title of the creditor for
this purpose relates back to the time of the judgment to cut out
intermediate encumbrances."
Subject to this charge, the defendant may convey the land. "A
judgment creditor has no
jus in re, but
Page 48 U. S. 768
a mere power to make his general lien effectual by following up
the steps of the law." What law? The law which authorizes the
judgment, and the issuing of the process through which means the
judgment may be satisfied. A failure to do this releases the charge
on the property.
Ibid.
The lien, if not an effect of the judgment, is inseparably
connected with it. And this is the case whether the lien was
created by the judgment and execution or by statute. And in either
case, where the right has attached in the courts of the United
States, a state has no power, by legislation or otherwise, to
modify or impair it. Retrospective laws of a remedial character may
be passed, but no legislative act can change the rights and
liabilities of parties, which have been established by a solemn
judgment.
This Court therefore direct that it be certified to the
circuit court that the right of lien claimed by the plaintiffs
under the judgment is paramount to that of the defendant claimed
under the mortgage.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of Mississippi, and on the point or question on which the
judges of the said circuit court were opposed in opinion, and which
was certified to this Court for its opinion, agreeably to the act
of Congress in such case made and provided, and was argued by
counsel. On consideration whereof it is the opinion of this Court
that the right of lien claimed by the plaintiffs under the judgment
is paramount to that of the defendant claimed under the mortgage;
whereupon it is now here ordered and adjudged by this Court that it
be so certified to the said circuit court.