Where the marshal of the United States had levied an execution
upon certain property under a judgment in the circuit court, which
was taken out of his custody by a writ of replevin issued by a
state court, and the supreme court of the state decided adversely
to the claim of the marshal, it is within the jurisdiction of this
Court to review that decision.
It is the uniform practice of the federal and state courts in
Tennessee to test executions as on the first day of the term, and
as between creditors, the lien attaches equally to all the
judgments entered at the same term.
Where a judgment by default in an action upon a promissory note
was entered upon the 8th day of the month, but not fully entered up
as to the amount due until the 10th, and upon the 10th, a few
minutes before the court opened, the debtor recorded a deed of
trust conveying away all his property, this deed cannot defeat the
lien of the judgment.
The judgment by default created the lien; it was a mere clerical
duty to calculate and enter up the amount due.
To note the precise time when deeds are left for record is
attended with no difficulty as between deeds, but to settle the
exact comparative creation of a lien between a recorded deed and a
judgment by a court is attended with much embarrassment. The
timepiece of the register cannot settle the validity or invalidity
of a judgment lien.
The process act of 1828, passed by Congress, refers to state
laws for the creation and effect of liens, but the preparatory
steps by which they are created depend upon the rules adopted by
the United States courts.
Clements, the plaintiff in error, was the Marshal of the United
States District of Middle Tennessee.
The action was a replevin brought by Berry against Clements in
the Circuit Court of Davidson County, Tennessee (state court), and
upon the trial in that court the following statement of facts was
agreed upon.
"
DANIEL BERRY v. J. B. CLEMENTS"
"
Replevin -- Circuit Court, Davidson County"
"In this case the defendant comes and defends the wrong and
injury, when &c., and says he is not guilty in manner and form
as the plaintiff in declaration hath alleged, and of this he puts
himself on the country, and the plaintiff also, and the following
facts are agreed upon between the parties:"
"On 20 January, 1848, William H. Inskeep, Albert Moulton, Edward
D. Woodruff, and John Sibley, citizens of the State of Pennsylvania
trading in partnership under the firm Inskeep, Moulton &
Woodruff, brought an action of debt against Charles F. Berry, a
citizen of the State of Tennessee and resident of Nashville, in the
Circuit Court of the United States for the District of Middle
Tennessee, upon several notes of
Page 52 U. S. 399
hand executed by said Berry, payable to said Inskeep, Moulton
& Woodruff; the writ and copy of the declaration was served by
the marshal upon the said Charles F. Berry on 20 January, 1848. The
writ was returned to the court with the declaration at March term,
1848, and the following entries were made on the rule docket and
minutes, as by the copy hereunto annexed, and made part of the case
agreed, marked A: Inskeep, Moulton & Woodruff, debt, 20
January, 1848, executed and delivered defendant a copy of
declaration. Declaration filed March 1, 1848; ruled for plea by 8
March; no plea being filed by attorney, takes judgment by default.
Circuit Court of United States, Middle Tennessee District.
Thursday, March 9, 1848, court adjourned until tomorrow morning, 10
o'clock. Friday, March 10, 1848, court met according to
adjournment. William H. Inskeep, Albert Moulton, Edward W.
Woodruff, and John Sibley, trading under the firm of Inskeep,
Moulton & Woodruff v. Charles F. Berry. The plaintiffs appear
by their attorney, and a judgment by default having been taken in
this cause on 8 March, 1848, and no motion having been made to have
the same set aside, it is therefore considered by the court that
said judgment by default be affirmed and that the plaintiffs
recover against said defendant $1,316.68, their balance of debt in
the declaration mentioned, and the further sum of $44.22, their
damage sustained by reason of the detention thereof, and their cost
in this behalf expended, and that execution issue. Session of court
commenced on 6 March, 1848. A true copy. J. McGavock, clerk, by G.
M. Fogg, deputy. Berry's deed received at register's office 51
minutes after 9, on 10 March. Inskeep & Co. Judgment obtained
about half-past ten o'clock same day."
"The said circuit court of the United States commenced its
session on Monday, 6 March, 1848. On 10 March, 1848, Charles F.
Berry, the debtor, executed a deed of trust to the plaintiff in
this cause, a copy of which is hereunto annexed, and made a part of
this case agreed: "
" Know all men by these presents that I, Charles F. Berry, of
the County of Davidson and State of Tennessee, of the one part, and
Daniel Berry, of the county and state aforesaid, of the other part,
witnesseth that I, the said Charles F. Berry, for and in
consideration of the sum of $5, to me in hand paid by the said
Daniel Berry, and the other consideration hereinafter mentioned,
hath this day bargained, sold, transferred, and conveyed, and do by
these presents bargain, sell, transfer, and convey, to the said
Daniel Berry all my stock of dry goods of every description and all
sorts of ware now in
Page 52 U. S. 400
the storehouse occupied by me on the public square in Nashville,
and also in a storeroom occupied by me in Nashville, amounting
together to the sum of about $12,000, as per invoice book made out
this day; three horses, one negro man slave, named Abraham, one
buggy, all my accounts of every description, and the book
containing the same; all the notes &c., that are due me, and
also my interest, whatever it may be, in the unsettled business of
the firm of A.D. & C. F. Berry; also, all the interest I have
in and to the following-described lots or pieces of ground,
viz., lots No. 5 and 6, as described in a plat made by C.
W. Nance, of lots adjacent to the town of Nashville, on Cherry
Street, fronting thirty feet each on Cherry, and also lots A and B,
in No. 20, in the plan of South Nashville, and lots No. 3 and 4
adjoining F. B. Fogg's lot on Cherry Street. To have and to hold
said property, of every description to the said Daniel Berry, his
heirs and representatives forever. I, the said Charles F. Berry,
bind myself, my heirs and representatives to warrant and defend the
title to the same, or any part thereof, to the said Daniel Berry,
his heirs and assigns, against the lawful claims of all persons
whomsoever. But this deed is made for the following use and trust,
and for no other purpose -- that is to say that the said Daniel
Berry and A.D. Berry are my accommodation endorsers on the notes,
most of them, embraced in schedule A, and whereas I am anxious to
secure them, and also the payment of all the claims therein
specified, to the persons to whom said claims are due, and also to
secure the claims specified in the schedule B to the person therein
named, which schedules are to be registered with this deed. Now if
I, the said Charles F. Berry, shall well and truly pay off and
satisfy said debts mentioned in schedules A and B on or before 1
December, 1849, then this deed to be void, but if I shall fail to
do so, then the said Daniel Berry shall sell whatever remains of
said property upon such terms as will be most for the interest of
the creditors and apply the proceeds to the payment first, of the
debts mentioned in schedule A, until they are all paid and
satisfied, and secondly to the payment of the debts mentioned in
schedule B, if there shall be enough after paying the expenses of
executing this trust; if not, to make a
pro rata
distribution of the proceeds amongst them. In order to make it more
certain that said debts shall be paid within the time specified, I
hereby authorize the said Daniel Berry, as trustee, to take
immediate possession of all the above-described property, and that
he may proceed to sell the same upon such terms as will make it
yield the most money, and that he take possession of all my books
of accounts, notes &c.,
Page 52 U. S. 401
and proceed to collect the debts due me as speedily as he can,
and to apply the proceeds of the goods and property, and the money
collected by him, to the payment of the debts in the order above
specified; but that he shall not be forced to make a general sale
of said property, goods &c., until the expiration of said
time."
" In testimony whereof, I, the said Charles F. Berry, have
hereunto set my hand and seal, this 10 March, 1848."
"C. F. BERRY"
"
State of Tennessee, Davidson County"
" Personally appeared before me, Robert B. Castleman, clerk of
the county court of said county, the within-named C. F. Berry, the
bargainer, with whom I am personally acquainted, and who
acknowledges that he executed the within deed of trust for the
purposes therein contained."
" Witness my hand at office, this 10 March, 1848."
"R. B. CASTLEMAN"
"
State of Tennessee, Davidson County"
"Register's Office, March 11, 1848"
" I, William James, register of said county, do hereby certify
that the foregoing deed of trust and certificate are duly
registered in my office, Book No. 10, pages 574, 575, and that they
were received March 10, 1848, 9 51/60 o'clock, A.M., and entered in
Note Book 2, page 20."
"WILLIAM JAMES"
"And the same was lodged for registration in the register's
office, at the time mentioned in the memorandum upon said deed, on
20 March, 1848; an execution, being a writ of
fieri
facias, issued upon said judgment, and came to the hands of
the marshal on 21 March, and by him, on 24 March was levied upon
the goods, wares, and merchandise particularly specified in the
levy, a copy of which is hereunto annexed, marked C, together with
the return of the marshal."
"The President of the United States to the Marshal of the Middle
District of Tennessee, greeting: "
"You are hereby commanded, that of the goods and chattels, lands
and tenements, of Charles F. Berry, in your district, you cause to
be made $1,379.85, which William H. Inskeep, Albert Moulton, Edward
W. Woodruff, and John Sibley, trading under the firm of Inskeep,
Moulton & Woodruff, in the Circuit Court of the United States
for the Eighth Circuit, in the Middle
Page 52 U. S. 402
District of Tennessee, recovered against him for balance of
debt, damages, and cost, in a certain action of debt in the said
court, lately determined, wherein the said Inskeep, Moulton &
Woodruff were plaintiffs and said Charles F. Berry was defendant,
whereof said defendant is convicted, as appears of record, and have
the said money ready to render before the judge of our said court
at Nashville on the first Monday in September next; herein fail
not, and have then and there this writ."
"Witness the Honorable Roger B. Taney, Chief Justice of the
Supreme Court of the United States, this first Monday in March,
A.D. 1848, and in the seventy-second year of our independence."
"JACOB McGAVOCK,
Clerk"
"Issued March 20, 1848; came to hand 21 March, 1848; levied this
fieri facias upon the following goods, wares, and
merchandise, as the property of Charles F. Berry, this 24 March,
1848. Then follows a long list of goods of several pages,
specifying each article, item by item, amounting in all to the sum
of $2,549.11; the prices annexed to the foregoing list of goods
were the invoice prices as furnished by the defendant, but the
defendant and myself not agreeing as to the present value of the
goods, we called in the following persons, merchants of Nashville,
to-wit, John B. Johnston, C. Connor, B. F. Shields, and A. J.
Duncan, who valued the goods to be worth $1,402, or 55 cents in the
dollar upon the invoice prices."
"J. B. CLEMENTS"
"
Marshal of the U.S. district of Middle Tennessee"
"The sale of said goods, wares, and merchandise was stopped by a
writ of replevin from the Circuit Court of Davidson County, sued
out at the instance of Daniel Berry, against me, as marshal; which
writ was executed upon me by the Sheriff of Davidson County, on 4
April, 1848, and the goods delivered up to said Daniel Berry, by
the advice and consent of the plaintiff's attorneys. September 4,
1848."
"J. B. CLEMENTS,
M.M.D.T."
"A true copy J. McGAVOCK,
Clerk"
Marshal's fees, commissions on the amount of this
execution, by G. M. Fogg, deputy, say on $1,360.90,
at 2 1/2 percent . . . . . . . . . . . . . . . . . . $34.02
Serving this
fieri facias. . . . . . . . . . . . . .
2.00
------
$36.02
These goods were in the store of Charles F. Berry, and had
Page 52 U. S. 403
not been removed therefrom, but Daniel Berry, the trustee, was
at the store at the time of the levy, and stated that the said
Charles F. was his agent, and the trustee claimed the goods as
included in the deed of trust; the goods levied upon were taken
possession of by the marshal, and after the writ of replevin was
served, they were delivered up by the marshal to Daniel Berry; the
goods, wares, and merchandise levied upon were, before the
execution of the deed of trust aforesaid, the property of Charles
F. Berry. If, upon the above facts, the law is with the plaintiff,
then judgment is to be rendered for him, with costs; if for the
defendant, the marshal, then judgment is to be rendered for him
against the plaintiff and his security, for the amount of the
judgment in the federal court; interest and cost as taxed by the
federal court.
"F. B. FOGG,
for Defendant"
"EWING & WHITWORTH,
Attorneys for Plaintiffs"
Upon this agreed state of facts, the Circuit Court of Davidson
County were of opinion that the law was with Clements, the
defendant, and gave judgment accordingly. Berry carried the case to
the Supreme Court of Errors and Appeals of Tennessee, where the
judgment of the circuit court was reversed. Clements sued out a
writ of error under the twenty-fifth section of the Judiciary Act,
and brought the case up to this Court.
Page 52 U. S. 408
MR. JUSTICE McLEAN delivered the opinion of the Court.
The jurisdiction of this Court is the first question to be
considered. The plaintiff sets up a lien on certain personal
property, under a judgment rendered by the circuit court of the
United States, held for the Middle District of Tennessee. The
defendant asserts a lien under a deed of trust for the property,
from Charles F. Berry, and the Supreme Court of Tennessee held that
the lien of the deed was paramount to that of the judgment. This
brings the case within the twenty-fifth section, as the decision
was against the right asserted by Clements, under the authority of
the United States.
The judgment was obtained by the firm of Inskeep, Moulton &
Woodruff, at March term, 1848, for $1,316.68, against Charles F.
Berry. The declaration was filed on 1 March; rule for plea by 8
March; no plea being filed within the rule, a judgment was entered
by default. On 10 March,
"The plaintiffs appear by their attorney, and a judgment by
default having been taken in this cause on 8 March, 1848, and no
motion having been made to have the same set aside, it is therefore
considered by the court that said judgment by default be
affirmed,"
&c.
The deed of trust was received at the register's office
fifty-one minutes after nine A.M. on 10 March, the same day the
deed bears date. The court, it seems, was opened on the 10th at ten
o'clock, A.M., so that the deed was deposited with the register
nine minutes before the court opened on that day. The register, by
law, is required to enter on a record the exact time that an
instrument is filed for record, and the lien attaches from such
entry.
Execution was issued on the judgment, tested the first Monday of
March, the day at which the term commenced. It was levied upon part
of the goods assigned in the deed of trust, and those goods were
replevied by Daniel Berry, the trustee, from Clements the
marshal.
It is the uniform practice of the federal and state courts of
Tennessee, to test executions as on the first day of the term, and
the lien is held equally to attach to all the judgments, as regards
creditors, entered at the same term. This rule would
Page 52 U. S. 409
not apply, perhaps, to a
bona fide purchaser of real
estate for a valuable consideration, beyond the day on which the
judgment was rendered. It is admitted that the statute of 29
Charles II as to the liens of judgments and executions is not in
force in Tennessee, and that the lien is regulated by the common
law, modified to some extent by statutes. As against a
bona
fide purchaser of personal property, the lien would not attach
prior to the award of execution. But the trustee in this case
cannot be considered a purchaser, as the assignment was made to him
not on a purchase for a valuable consideration, but for the benefit
of certain creditors.
It would present a singular anomaly in judicial proceedings if
the fruits of a judgment could be defeated by a transfer of all the
property of the defendant on the day of its rendition, and with the
express view of avoiding the claim of the plaintiff in the judgment
by giving a preference to other creditors. That such an assignment
would be fraudulent as tending to delay and defeat creditors is
clear, but no such defense was made in the state court.
The decision must turn upon the effect of the entries made on
the minutes of the circuit court. The term of the court commenced
on 6 March. The declaration was filed on 1 March, and a rule for
plea was taken in court by the 8th. The rule of court provides that
if the pleadings are not filed by the defendant on or before the
first day of the term, the court may on that day fix the time when
the pleadings are to be closed and judgment entered.
The plea not being filed within the rule, a judgment by default
was entered. Now a judgment by default is interlocutory or final.
When the action sounds in damages, as covenant, trover, trespass
&c., it is only interlocutory, that the plaintiff ought to
recover his damages, leaving the amount of them to be afterwards
ascertained. 1 Tidd's Pr. 568. But where the amount of the judgment
is entered by the calculation of the clerk, no further steps being
necessary, by a jury or otherwise, to ascertain the amount -- the
judgment is final. And of this character was the judgment entered
on 8 March. The action was debt, brought upon several notes of
hand; the default admitted the execution of the notes, and the
judgment which followed was final, leaving the clerk to make it up
in form. The affirmance of this judgment on 10 March was
unnecessary, as the judgment of the court on the 8th concluded the
matter in controversy. It was a mere clerical duty to make the
calculation and enter the judgment in form, and the equity on the
10th can be considered, in regard to the lien in question, in
effect as nothing more than
Page 52 U. S. 410
the performance of this clerical duty, which had been authorized
by the entry on the 8th. It was an affirmance of that which already
had been fixed by the judgment of the court. What remained to be
done was matter of form, as it added nothing to the legal effect of
the judgment by default. Had the defendant been called and a
default entered against him, the case would have stood for judgment
at a future call of the docket. But under the rule of the court,
"the pleadings were to be closed on the 8th and judgment entered."
The defendant failed to plead, and a judgment by default
consequently followed. The action being debt, founded upon notes of
hand which were admitted to be genuine by the default, the court
saw that no inquiry was necessary, and the judgment was therefore
directed to be entered. That judgment was final according to the
forms of entering judgments at the common law. The omission by the
clerk to make the calculation of the amount of the judgment and
enter it in form on 8 March was supplied by the entry on the 10th.
Such entry, therefore, we think, may be considered as having
relation to the first judgment.
It is said to be a legal absurdity to suppose that the lien of
the execution can attach prior to the judgment. An execution can be
of no validity which has not a judgment to support it. But the
judgments entered on the last day of the term, by the law of
Tennessee, have relation to the first day of the term, so as to
place all the judgments entered at the term on an equality in
regard to liens. This, it is said, is proper to do equal justice to
creditors whose judgments were necessarily entered on different
days of the term from the arrangement of the causes on the docket.
But it is said that a
bona fide purchaser for a valuable
consideration would limit the lien of the judgment and execution to
the time the judgment was rendered. If this be so, it is not
perceived how the principle can be applied to the case before us,
unless the defendant in error be considered a
bona fide
purchaser. He cannot place himself in that attitude. He holds the
property in trust for the creditors named, having paid at the time
no consideration for it and having, as may be presumed from the
circumstances, a knowledge that the assignment was made to avoid
the effect of the judgment against the assignor. It would be
difficult to maintain that this was a
bona fide
transaction, and especially that it was entitled to the favorable
consideration of the court. In no sense can it be considered a
bona fide sale for a valuable consideration. The trustee
is made the agent to pay the creditors named, and he represents
their interests as creditors. But if the property had been sold
bona fide, from the effect of the
Page 52 U. S. 411
judgment by default, and the relation to it of the formal
judgment of affirmance subsequently entered, the lien would attach
from the judgment on the 8th.
We admit that the lien of the judgment and execution in the
federal courts arises under the state laws, and that the lien may
be considered as a rule of property and a rule of decision under
the thirty-fourth section of the Judiciary Act of 1789. But the
preparatory steps by which the judgment is obtained and the lien
established depend upon the practice of the court, and that
practice is settled by the federal courts, and not by the courts of
the state. The process act of 1828
"adopted the forms of mesne process, except the style and forms
and modes of proceeding in suits in the courts of the United States
held in those states &c., subject, however, to such alterations
and additions as the said courts of the United States respectively
shall, in their discretion, deem expedient, or to such regulations
as the supreme court shall prescribe."
The entry by the register of the precise time at which all
instruments are deposited with him for record, as required by the
act of Tennessee, is no doubt a very proper regulation. It is
salutary in relation to instruments deposited for record on the
same day. In such cases, the priority of time may be ascertained
with certainty; but when the fractions of a day are to be compared,
under such entries, to a judgment lien, the propriety of the rule
is not so apparent. The case before us would present a point of no
small difficulty. From the entry, the trust deed appears to have
been deposited for record nine minutes before the court was opened.
And this is to render inoperative the lien of the judgment. Now how
is the fact to be ascertained with certainty? Where shall the exact
standard of time be found. A variation of nine or ten minutes is
not uncommon in chronometers, and the timepiece of the register, it
is supposed, could have no exclusive claim to regulate judgment
liens. Whether good or bad, it would answer the purpose designed by
showing the priorities of instruments left for record. But the test
in regard to judgment liens would be uncertain and unsatisfactory.
As a rule of property it would seem to be, at least in many cases,
impracticable. How can one, five, or ten minutes be ascertained
with the requisite certainty to lay the foundation of a right? It
would hardly be contended that the entry of a ministerial officer,
though made by authority of law, should limit or defeat a judgment
lien in such a case. No other decision of the Supreme Court of
Tennessee than the one now before us is applicable to this
question. And if the case to be reviewed is to constitute the rule
for our decision, as insisted, the power of revision would be
useless.
Page 52 U. S. 412
Whilst we follow the construction of a state statute established
by the supreme court of the state, care must be taken that our
jurisdiction and practice shall not be limited or controlled by the
statutes or decisions of the state, beyond the acts of
Congress.
The judgment of the state court is reversed, and the cause
is remanded to that court for further proceedings in conformity
with this opinion.
MR. CHIEF JUSTICE TANEY, MR. JUSTICE CATRON, MR. JUSTICE DANIEL,
and MR. JUSTICE NELSON dissented.
MR. JUSTICE CATRON.
By rule of court made when only one term was held in the year
for the Districts of Tennessee, the United States circuit court
adopted a rule requiring a copy of the declaration to be sent out
with the writ, in all cases of suits on written agreements for the
payment of money, where the plaintiff desires to obtain judgment at
the return term. If a copy of this declaration is served with the
writ on the defendant thirty days before the court commences, then
the defendant is required to plead before the first day of the
term, and if he fails to do so, it is the duty of the clerk to
enter judgment by default at his office. This fact he reports to
the court in all cases. And then such further time is given for
making up the pleadings as may be deemed proper by the court
itself, thus extending the time usually three days. But at March
term, 1848, only two additional days to plead were allowed.
This office judgment has no force in itself further than to
speed the final judgment. It stands over, like other causes,
triable on an issue. When it is reached on the docket in due
course, a jury inquires of damages, or if the sum be certain, then
a regular and binding judgment is entered of record by the
court.
An execution is uniformly awarded in terms by the final
judgment, and to which the execution on its face refers by a brief
recital.
To this award of execution the
fieri facias relates,
and binds personal property of the defendant.
The United States courts are governed by the state laws creating
a lien, and the state laws are settled by uniform adjudications
that the lien attaches by a final judgment and award of execution.
From that time defendant's property is in custody of the law.
Johnson v. Ball, 1 Yerger 292.
In this case there is no allegation of fraud. The debtor
transferred his property to a trustee honestly and fairly,
according
Page 52 U. S. 413
to the face of this record. By the law of Tennessee, the deed of
trust took effect the moment it was delivered to the register to be
recorded. It was his duty by express law to endorse on the deed the
exact time of delivery. After that, all liens were cut off. This
was done before the judgment was rendered. It matters not whether
defendant parted with his property on the day the judgment was
rendered or on a subsequent day, as he was divested of it the
moment the trustee delivered the deed to be recorded. If it was
otherwise, and the execution related to a judgment by default which
might remain unconfirmed for months, all executions or final
judgments where a default had been entered would bind from the
first day of the term and overreach sales made by retail dealers to
an alarming extent -- a doctrine unknown and altogether
inadmissible in the State of Tennessee or elsewhere, so far as I
know.
The Supreme Court of Tennessee, to revise whose decision this
writ of error is prosecuted, laid down the law correctly, as I
think, in its opinion in this cause, and I am of opinion that the
judgment ought to be affirmed. And I am instructed to say for my
brother NELSON, who heard the cause, but is now absent, that this
is his opinion also.
Order
This cause came on to be heard on the transcript of the record
from the Supreme Court of the State of Tennessee and was argued by
counsel. On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the said supreme court
in this cause be and the same is hereby reversed with costs and
that this cause be and the same is hereby remanded to the said
supreme court for further proceedings to be had therein in
conformity to the opinion of this Court.
