Prior to the Revised Code of Virginia in 1819, the lien created
upon land by a judgment was the same as in England. In both
countries, the following rules prevailed
1. That the lien of the judgment resulted entirely from the
right of the plaintiff to sue out an
elegit and charge the
goods and the moiety of the lands of the debtor.
2. That the election so to charge them by an
elegit
executed discharges from liability the body of the defendant and
the remaining moiety of the lands.
3. That the
capias ad satisfaciendum executed is,
pro tanto, a satisfaction of the judgment which releases
proprio vigore any previous lien upon the lands and
inhibits all recourse against the goods and chattels or lands of
the debtor, with the exceptions of the instances of death whilst
charged in execution or of an escape from prison or a rescue.
A discharge under the act of Congress for the relief of persons
imprisoned for debt, 2 Stat. 4, sec. 2, did not restore the lien
originally created by the judgment and waived by issuing a
ca.
sa.
In 1819, the State of Virginia revised her code. By a part which
went into operation on 1 January, 1820, it was enacted that
thereafter the issuance of a
ca. sa. should constitute a
lien upon lands.
But as it did not relate to past liens, the purchaser of a lien
created under the Revised Code had a good title when compared with
a claimant under the lien which existed in 1817, but which had been
waived by issuing a
capias ad satisfaciendum.
After a case had been argued and was under advisement, a motion
to permit the complainant to file a further bill by way of
supplement and amendment, which would have made an essential change
in the character and objects of the cause, was properly overruled
in the circuit court.
Page 53 U. S. 408
The facts in the case are fully set forth in the opinion of the
Court.
Page 53 U. S. 409
MR. JUSTICE DANIEL delivered the opinion of the Court.
This is an appeal from a decree of the Circuit Court of the
United States from the Eastern District of Virginia dismissing the
bill of the appellant who was plaintiff in that court.
On 3 December, 1814, Seekamp's administrators recovered a
judgment in the Circuit Court of the United States for the Eastern
District of Virginia against Neill McCoull for $5,688 damages and
costs. In February, 1817, this judgment was affirmed with costs,
and damages at the rate of six percentum, for which the circuit
court gave judgment accordingly in May, 1817, when the mandate was
produced.
Page 53 U. S. 410
On the judgment a
ca. sa. issued 29 July, 1817, which
was returned executed upon McCoull, and a bond taken with condition
that he should remain within the bounds of the Superior Court of
Henrico County. This admission to the jail limits seems to have
been under the Act of Congress of January 6, 1800, 2 Stat. 4,
expounded in
United States v.
Knight, 14 Pet. 316.
See 13 Hen.Stat. 373,
§ 37, and 1 Rev.Code of 1819, 535, § 30.
In what way McCoull got back into the custody of the marshal
does not clearly appear, and perhaps it is not material. He seems
while imprisoned to have petitioned to have administered to him the
oath prescribed by the act of Congress for the relief of persons
imprisoned for debt. The oath was administered on 18 July, 1821,
and McCoull then discharged from his imprisonment on this
judgment.
Although this proceeding was under the act of Congress, which
has no provision requiring a conveyance from the debtor, a deed
seems to have been executed by McCoull under the idea that the
state law in 1 Rev.Code of 1819, 537, was in some way to be applied
to the case. The deed is to John Pegram, then Marshal of the
Eastern District of Virginia, and conveys to him and his successors
in office, to be disposed of according to law, such interest as
McCoull, on the day of his discharge, had in any lands or other
property, stating, however, on the face of the deed that all the
property had theretofore been conveyed by deeds of record.
It appears that on 20 September, 1812, a tract of land in
Henrico known by the name of Marion Hill was conveyed by Walter
Shelton, as commissioner, to McCoull, and by McCoull to John
Parkhill as trustee to secure the purchase money. McCoull paid to
Shelton the money secured by this deed of trust, but failed to get
a deed of release from Parkhill.
Between June, 1814, and December, 1817, McCoull sold and by
deeds of bargain and sale conveyed to individuals certain lots
which were part of the Marion Hill tract.
McCoull died intestate, leaving a widow, Julia, and five
children, to-wit: Ann, Charles L., Mary P., Julia L., and John J.,
the three last of whom were infants when this suit was brought.
On 19 February, 1829, by an agreement under seal, the widow and
two eldest children of McCoull, in consideration of $1,000,
transferred and surrendered to William Selden a certain part of the
Marion Hill tract, it being agreed that if they should within six
years make to Selden a good title, he should in addition pay to
them or their order $20 for each acre to which
Page 53 U. S. 411
such good title should be made, and if within six years they
should not make him a good title, then they were to surrender all
right of property as well as possession.
On 14 September, 1829, a deed of release was made from Parkhill
and Shelton, the parties to the deed of trust of 20 September,
1812, to Selden which, after reciting Selden's purchase of part of
the Marion Hill tract, supposed to be of 100 acres, and the desire
of the widow and heirs that a deed of release should be executed to
Selden for that part, contains a full release of the legal title
from Parkhill to Selden.
About 14 years after, McCoull was discharged as an insolvent,
to-wit in May, 1835, Seekamp's administrators filed their original
bill claiming that by their judgment they acquired a lien upon the
lands of McCoull; alleging that of the land purchased from Shelton
a considerable portion remained in McCoull's possession unsold at
the date of the deed to Pegram, "which by the provisions of the
said deed was subjected to the payment of the said judgment;"
charging that Selden purchased with knowledge of the said judgment
and of the deed to Pegram, given to secure it; that Selden knowing
from the situation of the affairs of McCoull, and the lien of the
plaintiffs, that no good title could be made him by the widow and
heirs of McCoull, did in fact pay them a very trivial consideration
for the said 100 acres, compared with the full value thereof, and
claiming that they have a valid subsisting lien upon the said 100
acres and that the same should be applied in satisfaction of their
judgment.
The bill also mentions certain lands sold and conveyed by
Bartlett Still to McCoull, states that these lands remained in
McCoull's possession till his death, and claims that they are
liable under the deed to Pegram to satisfy said judgment.
The plaintiffs further claim that they have a right to subject
all the other lands and property conveyed in said deed executed for
their benefit to the satisfaction of said judgment in whatever
hands they may be found, as said deed operated to bind the property
thereby conveyed from the date of its admission to record.
The bill makes defendants the widow, heirs and administrators of
McCoull, William Selden and Edmund Christian, the successors as
marshal of John Pegram, and besides asking certain discoveries,
prays the court to decree a sale of the said 100 acres of land
conveyed Selden and the two parcels conveyed by Still to McCoull,
and whatever land or other property, subject to the debt of
Seekamp's administrators, may have descended or come to the hands
of the widow and heirs of McCoull, and that so much of the proceeds
of said sale as may be necessary
Page 53 U. S. 412
to pay off and discharge said judgment with interest and costs,
may be applied in satisfaction thereof.
Selden alone filed answer. In this answer he insists that by the
deed of September 14, 1829, from Parkhill and others the legal
title is vested in him, and states that, being aware of many
outstanding encumbrances upon the equitable right, he has
endeavored to take in those encumbrances which gave preferable
liens.
The answer of Selden sets forth, amongst other encumbrances
prior in time to the deed to Pegram, one created by a judgment of
Taylor and Hay rendered in their favor in April, 1821, in a state
court of Virginia against McCoull, and a
ca. sa. levied on
his body 28 April, 1821, under which he was discharged 21 July,
1821, by taking the oath of an insolvent debtor, and states that
Selden being advised that this execution of
ca. sa. being
levied after the 1st of January, 1820, when the act in the 1st vol.
of Rev.Code of 1819, 528, § 10, commenced, bound the real estate of
McCoull from the time when it was levied, obtained an assignment of
this judgment from the representatives of William Dandridge, for
whose benefit the judgment was obtained. This lien being prior to
the date of the deed to Pegram, under which the plaintiffs claim,
he insists has preference over their claim.
He insists that the lien of the plaintiff's judgment was
extinguished by the levy of his execution on the body of McCoull,
and that the plaintiff can have no other lien on the property of
McCoull except the deed made to Pegram. That amongst the deeds made
by McCoull prior to that last mentioned was one bearing date on 26
May, 1814, and another on 2 January, 1821, for the benefit, amongst
others, of the wife of McCoull in consideration of the
relinquishment of her dower in the property of her husband sold and
aliened by him, which deeds, as Selden claims also under the widow
and heirs of McCoull, he insists should enure to his protection
against the claim of the plaintiff. After this answer, an order was
made June 6, 1836, giving leave to the plaintiff to amend his bill.
Nothing was done under this leave for six years,
viz.,
until June 9, 1842, when a bill of revivor was filed in the name of
the administrator
de bonis non of Seekamp against Charles
L. McCoull, administrator of Neill McCoull. By an order made on 19
December, 1843, it is stated that the suit was abated as to the
widow of McCoull and that the plaintiff had by leave on that day
filed an amended bill making defendants the representatives of
Dandridge, for whose benefit the judgment in favor of Taylor and
Hay had been rendered, and that those representatives had filed
their answer.
Page 53 U. S. 413
This answer insists that the lien of the representatives of
Dandridge claiming through Taylor & Hay is preferable to that
of the plaintiff; that the plaintiff, by taking his
ca.
sa., released the lien of his judgment, and can claim only by
force of the surrender made by McCoull when he took the insolvent
oath; the
ca. sa. of Taylor & Hay levied 28 April,
1821, constituted by force of the statute of Virginia a lien on
lands from the time of levy, which gave their claim a priority over
that of the plaintiff; that, moreover, Taylor & Hay and in
their stead the representatives of Dandridge have a right to be
substituted for James Carter and John McCoull, sureties for Neill
McCoull to Taylor and Hay for whose benefit there was executed a
deed of 10 January, 1821.
The cause was argued at the May Term of 1846, and the court took
time to consider; at the June rules of the court in 1848, a notice
was issued by Seekamps' administrator that he would apply for leave
to file an amended and supplemental bill, which application being
opposed on the part of Selden and of those who had become sometime
previously purchasers from him, the court on 7 June, 1849, after
hearing the petition and the objections made thereto, refused leave
to file the proposed bill either as an amended or supplemental
bill, and decreed that the bill of the complainants be dismissed
with costs.
The important question upon this record and that upon the
determination of which the decree of the circuit court should be
affirmed or reversed is a question of priority between these
parties growing out of their respective acts and the legal
consequences flowing from those acts with reference to the subject
claimed by them both as having been once the property of Neill
McCoull, from whom the rights of both parties are deduced. For the
appellant it is insisted that by operation of his judgment in May,
1817, the levy of his
capias ad satisfaciendum on that
judgment in July of the same year, and the discharge from custody
of McCoull under the insolvent law of the United States, and his
deed at the time of that discharge to Pegram the marshal, there was
created a lien in behalf of the appellant on all the property held
by McCoull, including the land purchased by the defendant Selden
creating a priority in favor of the appellant which neither the
acts nor the rights of Selden nor of others deriving title from
McCoull subsequently to the judgment, execution, and deed above
mentioned could divest. On behalf of Selden and those whom he is
instructed to protect it is contended that whatever might have been
the capacity of the appellant's judgment to bind the lands of
McCoull from the date of the judgment, by a proceeding under it
such as would have been
Page 53 U. S. 414
proper to maintain and enforce that lien, yet by the election of
the appellant to take the body of McCoull and to retain him in
custody from 1817 to 18 July, 1821, the lien of the judgment was
released, and
quoad all property of the debtor at the date
of the judgment could be revived by one of two events only,
viz., the escape of the debtor from prison or his death
whilst in custody, the occurrence of neither of which events is
pretended. That the act of Congress under which McCoull was
discharged as an insolvent debtor created or preserved no specific
lien, and the deed to Pegram could have no such effect, and
conveyed, if anything, only such interest as McCoull possessed at
the date of that deed, the deed itself declaring by its terms, that
all the property of McCoull had been theretofore conveyed by prior
conveyances of record. That by the acquisition of the legal title
to the land in dispute from Parkhill, to whom the legal title had
been conveyed by McCoull three years anterior to the judgment
against him by the appellant and the purchase by Selden of the
widow and heirs of McCoull and the assignment to him of the lien
created by the judgment in favor of Taylor & Hay against
McCoull, and the discharge of the latter under a
capias ad
satisfaciendum sued on that judgment and executed on 28 April,
1821, previously to the deed to Pegram, Selden had obtained a
complete title to the land in question, which could not be
overreached or affected by the judgment of the appellant. The truth
or the incorrectness of the positions assumed by these parties
respectively must be settled by a proper construction of the laws
of the state within which the land in dispute is situated and
within which all the proceedings referred to have occurred.
By the decisions of the highest tribunal in Virginia, the law of
that state, prior to the statute of 1819, with respect to the lien
of judgments has been expounded in very close conformity with the
common and statute law of England, from which it appears to have
been adopted. Thus we find it laid down by compilers and by
commentators upon the law of England that the lien of judgments
upon lands in that country was created by the statute
de
mercatoribus, also styled the statute of Acton Burnell, 11th
of Ed. 1st, and by the statute of Westminster 2d, 13th Edward, 1st
Cap., 18, by the latter of which statutes the writ of
elegit was given by enacting that
"He who recovereth in debt or damages may have either a
fieri facias of the chattels of the debtor or a writ on
which the sheriff shall deliver to him all the chattels of the
debtor, saving only his oxen and beasts of the plough and half of
his land, until the debt be levied upon a reasonable price or
extent."
Vid. Bacon's Abridg. tit. Execution A, referring to the
statutes above mentioned and citing Hobart 60, and 2 Roll.Abr.
475.
Page 53 U. S. 415
It is said by Bacon, on the authority of Dalton's Sheriff 144,
that the statute of 25th Ed. 3, Cap., 17, subjected the person of
the debtor and gave the
capias ad satisfaciendum against
him in debt, detinue &c., in the case of a common person,
though by this same compiler it is said that doubts have been
suggested down to a period as late as the time of Lord Mansfield as
to the mode by which a proceeding existing at common law
confessedly in behalf of the King alone, and affecting so gravely
the personal liberty of the subject, had been placed at the
discretion of private persons. Leaving these questions concerning
the remote origin of the different modes of final process as
belonging peculiarly to the province of the antiquary, we proceed,
so far as is necessary for the decision of the case before us, to
ascertain the effect of them as settled by judicial interpretation
in England, and in the jurisprudence of Virginia, upon which by
custom and by statutes they may have been engrafted. The force and
operation of these different modes of final process in England in
reference both to the parties resorting to them and to those on
whom they are brought to bear will be seen under the several
divisions of the title Execution in the 3d vol. of Bacon. They have
also been traced with his characteristic perspicuity and method by
Mr. Justice, from 413 to 421 of the third vol. of his Commentaries,
chap. 26. In 3d Bacon Abr., Execution D., 392, the law is thus
stated:
"When the plaintiff has judgment, he has it in his election to
sue out what execution he pleases, but he cannot regularly take out
two different executions on the same judgment, nor a second of the
same nature unless upon failure of satisfaction of the first.
Therefore, if the plaintiff upon a judgment or recognizance at
common law sues out an
elegit, he can have no
capias
ad satisfaciendum afterwards to take the body, because he hath
determined his choice by that writ to the goods and chattels and a
moiety of the land, which being entered upon the record, he is
thereby estopped, and though he takes but an acre of land in
execution, yet it is held a satisfaction of the debt, be it never
so great, because in time it may come out."
The exceptions to this restriction on the plaintiff's right to
another execution are the return of
nihil on the first and
the return by the sheriff that he hath levied only on the goods of
the defendant, because the plaintiff, being entitled to levy on the
land also, should not be precluded from the benefit conferred by
the statute. But if the land be delivered, though of never so
little value, that will be a bar, for the sheriff hath delivered
the moiety of the land according to the statute. For this are cited
Bro. Elegit; 15 Roll.Abr. 896; Hob. 57; 5 Leon 87; 2 Bulstr. 97,
and other authorities. In conformity with the law as just stated is
the doctrine of Mr. Justice Blackstone, who
Page 53 U. S. 416
concludes his remarks upon this subject in the following words,
vol. 3, 419:
"This execution or seizing of lands by
elegit is of so
high a nature that after it the body of the defendant cannot be
taken, but if execution can only be had of the goods because there
are no lands, and such goods are not sufficient to pay the debt, a
capias ad satisfaciendum may then be had after the
elegit, for such
elegit is in this case no more
than a
fieri facias, so that body and goods may be taken
in execution, or lands and goods; but not body and land too, upon
any judgment between subject and subject in the course of the
common law."
The origin and effect of the
elegit have been thus
dilated upon as proper to define the foundation and effect of the
lien of a judgment upon lands, to show that it mounts no higher
than the
elegit itself or the capacity of the judgment
creditor to resort to that process, and that where such capacity
was wholly taken away or suspended, the lien was affected in the
same degree. With regard to the effect of the
capias ad
satisfaciendum upon the rights of the parties to a judgment,
we are told by Blackstone, vol. 3, 415, that
"The writ of
capias ad satisfaciendum is an execution
of the highest nature, inasmuch as it deprives a man of his liberty
till he makes the satisfaction awarded, and therefore, when a man
is once taken in execution upon this writ, no other process can be
sued out against his lands or his goods."
So in 3d Bac.Abr. tit. Execution D., 395, it is said:
"It was formerly held that if a person taken on a
capias ad
satisfaciendum died in execution, the plaintiff had no further
remedy, because he had determined the choice by this kind of
execution, which, affecting a man's liberty, is esteemed the
highest and most rigid in the law, and for this are cited
Foster v. Jackson, Hob. 52;
Williams v.
Critteris, Cro.Jac. 136; and Rol.Abr. 903, and it has been
ruled that if the plaintiff consent to the defendant's being
discharged out of execution upon an agreement, he cannot afterwards
retake him, although the security given by the defendant on his
discharge should afterwards be set aside;
vid. 4 Burr.
2482; 1 T.R. 557; 2 East 243. And as late as 1806, the following
language is held by the Lord Chancellor in the case
Ex Parte
Knownell, 13 Ves. 193."
"Considering the bankruptcy out of the case, it is clear that by
the taking the body in execution, the debt is satisfied to all
intents and purposes. If the debtor being in execution becomes a
bankrupt, the creditor, in reason and justice, must have a right to
elect, not having contemplated that event which deprives him of the
fruit of his execution. But when the commission has previously
issued, and the creditor therefore takes his execution apprised of
the disposition to be made of the effects and that there may be
a
Page 53 U. S. 417
certificate and has his choice, that step upon the same reason
must be an election, and the debt is satisfied, whether by payment
or by having the body in execution is not material."
The only known exceptions to the effect of the
capias ad
satisfaciendum executed are 1st, the provision of the statute
of 21st Jac., 1st. Cap. 24, that if the defendant shall die while
charged in execution, the plaintiff may, after his death, sue out a
new execution against his land, goods, or chattels, and the
instances of an escape or rescue of the party taken in execution,
in which two last instances it has been ruled that although the
sheriff is thereby liable because he ought to have taken the
posse comitatus, yet the plaintiff may take out any new
execution, and shall not be compelled to take his remedy against
the sheriff, who may be dead or insolvent.
From this view of the law as ruled by the English courts the
following points may be considered as conclusively ruled in that
country:
1st. That the lien of the judgment results entirely from the
plaintiff to elect to charge the goods and the moiety of lands of
the debtor.
2d. That the election so to charge them by an
elegit
executed discharges from liability the body of the defendant and
the remaining moiety of the lands.
3d. That the
capias ad satisfaciendum executed is
pro tanto a satisfaction of the judgment which releases
proprio vigore any previous lien upon the lands and
inhibits all recourse against the goods and chattels or lands of
the debtor, with the exceptions of the instances of death whilst
charged in execution or of an escape from prison or a rescue.
Recurring now to the laws of Virginia upon these same subjects,
we find as early as the year 1748, 22 George II, the statute of the
colonial legislature beginning with the following preamble:
"Whereas by the common law of England and divers acts of
Parliament, which are binding upon the subjects of this colony, all
persons recovering any debt, damages or costs, by the judgment of
any court of record, may, at their election, prosecute writs of
fieri facias, elegit, and
capias ad
satisfaciendum within the year for the taking of the goods,
lands, or body of persons against whom such judgment is obtained,
to the end the said several writs issuing out of any of the courts
of record within this dominion, and the manner of executing and
returning the same may be uniform, and the mischiefs arising from
incorrect forms and insufficient returns of such writs prevented,
be it enacted &c."
The first thing which strikes the attention in reading this
preamble is not only its explicit recognition of the common law and
statutes of the mother country with respect to the binding force
and operation of judgments, but also of the modes, and the effect
of those modes, as they were known in the mother
Page 53 U. S. 418
country to be carried into operation. Thus it is declared that
there shall be a
fieri facias for taking the goods, an
elegit for taking the lands, and a
capias ad
satisfaciendum for taking the body of any person against whom
such judgment is obtained. Not only are these forms of proceedings
adopted with the import which their mere terms might convey, but
they are adopted with direct reference to the common law and
statutes of England, and of course to the judicial interpretations
of the law, as decisive of their operation and effect. The statute
then proceeds to prescribe the forms of these several writs and the
returns to be made upon them, following, it is believed, literally
the forms in the courts of law in England, with such exceptions
only as the difference in situation and the style of the courts
rendered indispensable; and in the 3d and 4th sections enacts the
provisions contained in the stat. of the 21st of James I., Cap.
24th, authorizing the renewal of execution against the lands and
goods of a debtor dying in execution, and protecting the title of
purchasers from the prisoner to lands
bona fide sold by
him for the payment of any of his creditors at whose suit he shall
have been in execution, and the money paid or secured, to be paid
to such creditors with their privity in discharge of his debts, or
some portion thereof. The construction of this statute, which, up
to the revisal of the laws of Virginia made in 1819 and going into
effect in 1820, controlled the question of judgment lien, and the
rights of purchasers from a debtor in execution is understood to be
definitively settled, and to have established the rules in the
state in conformity with the doctrine of the English courts that
the lien of a judgment depends entirely on the right or capacity of
the plaintiff to sue out an
elegit, and that by electing a
capias ad satisfaciendum, the lien of the judgment is so
far destroyed as to be inoperative except in the instances of death
in execution and of an escape. Indeed, the provision in the statute
of 21st James I., and in the Virginia act of 1748, which protect
bona fide sales by debtors in execution, are wholly
inconsistent with the idea of a continuation of a judgment lien
during the operation of a
capias ad satisfaciendum
executed, for the lien of a judgment is a legal lien commencing and
coeval with the judgment itself, and unless released by charging
the debtor in execution, would by its own force and effect go back
to the date of the judgment and override all mesne alienations or
rights of every description.
But this part of the Virginia statute of 1748 has been clearly
expounded by the Supreme Court of Virginia in the case of
Bullock v. Irvine's Administrators, reported in 4 Munf.
450, which was a suit brought to vacate a sale made by a debtor in
execution to one of his creditors, and which sale the Chancellor
had decreed to be void as to creditors
Page 53 U. S. 419
under the laws of the state concerning executions. The supreme
court, in reversing the decree of the chancellor, uses this
language:
"That instead of the decree rendered by the chancellor in this
case, he ought to have directed an issue, to try what was the
amount of the consideration which passed from the said Hannah
Bullock to James Bailey the debtor in execution for the land in
question, and whether there was any secret agreement or
understanding between the said parties that the said land was to be
holden by the former for the use and benefit of the latter. The
court is further of opinion that if it shall turn out upon the
issue aforesaid, that a reasonable consideration did pass as
aforesaid, and that there was no such secret agreement or
understanding, that then and in that case the bill of the appellees
should be dismissed, the transaction in that view being only the
preference of one
bona fide creditor over another."
Thus it is seen that the
bona fides of the transaction,
and not the quality or extent of the legal lien, determined the
validity of the transaction, for the existence of such a lien would
have deprived the debtor of all power of alienation.
In the revisal of the laws of Virginia made in the year 1819,
going into operation in the year 1820, a provision was introduced
by the tenth section of the law concerning executions declaring
that every sale, conveyance, and transfer of any lands or tenements
made by any person charged in execution for any debt or damages
shall be absolutely null and void as to the creditor at whose suit
he is so charged in execution unless such sale, transfer, and
conveyance be absolute and
bona fide and be made for the
payment of the debt and damages due to such creditor or creditors,
and that all executions of
capias ad satisfaciendum levied
after the commencement of this act shall bind the real estate of
the defendant from the time when they shall be levied. It has been
insisted that this execution lien, given by the 10th section of the
act of February, 1819, so attaches upon the lands and tenements of
the debtor as to cut out all junior encumbrances by judgment whilst
the debtor remains in execution, although the regular proceedings
be had upon such junior judgments to enforce the lien created by
them as judgments upon the lands of the debtor. The first
interpretation given to the 10th section of the statute of 1819 by
the Supreme Court of Virginia was in accordance with the position
just mentioned, as will be seen by the case of
Jackson v.
Heiskill, 1 Leigh 257. But the case of
Jackson v.
Heiskill having been decided by a bare quorum of the court and
by a bare majority of that quorum, the question so determined was
reconsidered by a full court in the case of Foreman v. Loyd
&c., reported in 2 Leigh 284, and by the court, with the
exception of one judge,
Page 53 U. S. 420
the case of
Jackson v. Heiskill was overruled and the
following interpretation given to the 10th section of the statute
of 1819 and to the execution lien created thereby, namely, that
where several creditors recover judgment and sue out writs of
capias ad satisfaciendum against the debtor, upon which he
is taken and charged in execution, and then another creditor
recovers judgment against the same debtor and sues out an
elegit on which his lands are extended, and a moiety of
them delivered, and then the debtor is regularly discharged from
the writs of
capias ad satisfaciendum as an insolvent
debtor, putting into his schedule the whole of his lands which had
been extended under the
elegit, the lien of the writs of
capias ad satisfaciendum does not overreach and avoid the
extent under the
elegit. The case of
Rogers v.
Marshall, 4 Leigh is perhaps a still stronger illustration of
the extent to which the execution lien may be affected by a junior
encumbrance, as in this last case there was no intervention of a
judgment or of legal process to operate against the execution lien,
but in this instance, between the period of the judgment rendered
and the
capias ad satisfaciendum executed, sundry
mortgages were made by the debtor to secure debts to other
creditors. It was held that, by the actual service of the
capias ad satisfaciendum on the debtor, the lien of the
judgment was destroyed, that the creditor could only stand on the
lien given in the capias executed by the statute of 1819, sec. 10,
and that therefore the mortgagees were entitled to precedence. The
same doctrine is affirmed in the case of
Leake v. Ferguson
as late as 1846, and reported in 2 Gratt. 419.
Upon the review here taken of the decisions of the courts in
England upon the subject of judgment lien, and of the
interpretation put by the Supreme Court of Virginia upon the
statutes of that State of 1748, reenacted in the revisals of 1794
and 1803 and of 1819, we are brought necessarily to the following
inquiries: 1st, what lien was ever possessed by the appellant and
those he represents upon the lands of McCoull?, and 2d, in what way
has such lien been affected by the acts of appellant? It is certain
that on 22 May, 1817, the appellant held a lien by judgment upon
all the lands, tenements, and hereditaments of McCoull, but it is
equally certain that by levying a
capias ad satisfaciendum
upon the body of McCoull in July, 1817, he released the judgment
lien upon such lands and tenements, according to the interpretation
given of the statute of 1748 and also by that placed upon the
statute of 1819, sec. 10. That the lien surrendered by the service
of the
capias ad satisfaciendum was never revived by the
force of the former statute, inasmuch as there was neither an
escape nor a dying in custody, and that no execution lien was
created by the service of
Page 53 U. S. 421
a
capias ad satisfaciendum, and the admission of
McCoull, to the oath of an insolvent debtor, in virtue of the 10th
section of the act of 1819, as that section, by express language,
applies only to executions levied after the commencement of the act
of 1819, and McCoull was already in custody under an execution
levied in July, 1817, more than two years anterior to the passage
of that act, and under process sued out under the statute of 1748,
continued in the revisals of 1794 and 1803. In truth, the oath of
insolvency administered to McCoull was not in virtue of either of
the state laws above referred to, but under the Act of Congress of
6 February 1800, which oath of insolvency created no specific lien
in favor of the appellant, and the deed to the marshal, which was
neither ordered nor required by the act of Congress, could create
no such specific or exclusive lien, and upon its face it purports
to create none, but on the contrary recites that all the property
of McCoull had been conveyed by deeds previously made and recorded.
The only lien by execution upon the lands of McCoull, in virtue of
the statute of 1819, sec. 10, disclosed by the record is that of
Taylor and Hay, arising from a judgment rendered in a state court
of Virginia against Neil McCoull in April, 1821, and that lien,
whatever its effect may be, must enure to the benefit of Selden who
holds an assignment of the judgment against McCoull from the
beneficiaries thereof, it being prior in date to the deed of
Pegram. The lien which once existed in virtue of the appellant's
judgment having been extinguished by the levy of the
capias ad
satisfaciendum upon the body of McCoull, and there being no
revival thereof by any of the causes known to the law, we are
unable to perceive why Selden, who was a purchaser from the widow
and heirs of McCoull, might not fairly and properly obtain the
legal title from Parkhill, in whom that title was vested, or get in
the lien of the execution existing in favor of Hay and Taylor. By
doing so, he invaded no right of the plaintiff, who had
relinquished his judgment lien and had acquired no other under the
deed to Pegram, which professes to convey to him none, and to which
he was no party. Selden having paid his money, committed no wrong
on the plaintiff by drawing to himself the elder legal title
outstanding in Parkhill, and by fortifying it by the execution lien
of Taylor and Hay, which clearly had precedence of the
plaintiff.
After this cause had been heard in argument and taken under
advisement by the circuit court, the plaintiff petitioned that
court to permit him to file a farther bill by way of amendment and
supplement to the original bill and bill of revivor previously
filed in the cause, and after being heard by counsel upon his
petition, the court refused to grant the prayer thereof on the
Page 53 U. S. 422
grounds that the application was made at too late a period, and
that the changes proposed by the plaintiff in the character of the
cause would have been in reality the presenting of an entirely new
case, rather than an amendment of the original bill. This refusal
of the circuit court we hold to have been sound in principle, and
it is sustained by the express language and authority of this Court
in the case of
Walden v. Bodley, which declares that
although
"there are cases where amendments may be permitted at any stage
of the proceedings in the cause, as where an essential party has
been omitted, yet amendments which change the character of the bill
or answer so as to make substantially a new case should rarely if
ever be admitted after the cause is set for hearing, much less
after it has been heard."
Vid. 39 U. S. 14 Pet.
156. Moreover, a fact which imparts greater force to the refusal of
the circuit court to permit amendment at so late a stage of the
proceedings is this: that the application to that court appears to
have been accompanied with no evidence, and not even by an
affidavit, to show that the amendments desired could not have been
made portions of the original bill; on the contrary, it is manifest
that they might have formed a part of the case as originally
presented to the circuit court, if at any time it were proper to
incorporate them with the subject matter and with the objects
proposed by the original bill. The prayer of the original bill was
limited to the enforcement of an alleged judgment lien upon
specific property purchased by the defendant Selden and to recourse
against the heirs and widow of McCoull, of whom Selden had
purchased; the proposed change, by way of amendment and supplement,
is a general bill for discovery and relief against all persons
alleged or supposed to have been purchasers or grantees from
McCoull, and for satisfaction out of the property purchased by him
or to which he had title at the date of the original judgment in
favor of Seekamp. Such an essential change in the character and
objects of the cause, proposed, too, after a hearing and when it
was manifest that the object of the original bill, namely the lien
of the judgment, no longer existed, could not have been accorded to
the plaintiff by any sound rule of practice. On either aspect of
his case as presented by the appellant, we think that he
established no ground for equitable interposition in the circuit
court, and approving the decree of that court dismissing the bill
of the appellant, we hereby order that the same be
Affirmed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Eastern
Page 53 U. S. 423
District of Virginia and was argued by counsel. On consideration
whereof it is now here ordered and adjudged by this Court that the
judgment of the circuit court in this cause be and the same is
hereby affirmed with costs.