By the laws of Mississippi, deeds of trust and mortgages are
valid as against creditors, and purchasers only from the time when
they are recorded.
A judgment is a lien from the time of its rendition.
Therefore, where a judgment was rendered, in the interval
between the execution and recording of a deed, it was a lien upon
the land of the debtor.
A
fieri facias, being issued upon this judgment, was
levied upon the land, but before the issuing of a
venditioni
exponas, the debtor died.
Page 54 U. S. 288
It was not necessary to revive the judgment by a
scire
facias, but the sheriff who had thus levied upon the land
could proceed to sell it, under a
venditioni exponas, and
a purchaser, under this sale, could not be ejected by a claimant
under the deed given by the debtor.
It was an ejectment, brought in the court below by Miller,
against the Taylors, who were the purchasers of the property in
question at a sheriff's sale. The controversy was respecting the
validity of the sale, the circumstances attending which are
detailed in the opinion of the Court. The following table shows the
date of the various transactions.
Crane was the owner and in possession of the property.
September 21, 1840, Crane made a deed of trust to Pitser
Miller.
November 17, 1840, a judgment was given against Crane, at the
suit of some third person, for $6,000, in the Circuit Court of the
County of Marshall.
Upon this judgment a
fieri facias was issued,
returnable to the first Monday in June, 1841.
December 7, 1840, the deed from Crane to Pitser Miller was
recorded.
April 16, 1841, the execution was levied upon the land in
controversy. Whereupon Crane claimed the benefit of the valuation
law of Mississippi. The property was valued at six thousand
dollars, but two-thirds not being bid, the papers were returned to
the clerk's office.
February 20, 1842, Crane died.
May 30, 1842, twelve months after the return of the papers, a
writ of
venditioni exponas, tested on the first Monday in
March, 1842, was issued, commanding the sheriff to sell the
land.
August 17, 1842, the sheriff sold the land to the Taylors, and
on the same day made them a deed for it and put them in
possession.
April 20, 1843, Pitser Miller put up the land for sale under the
deed of trust from Crane, when Austin Miller became the purchaser,
and received a deed from the trustee.
In October, 1847, Miller brought his action of ejectment against
the Taylors in the District Court of the United States for the
Northern District of Mississippi, Miller being a citizen of the
State of Tennessee.
In December, 1849, the cause came on for trial.
On the foregoing facts, which were established by legal
testimony, the court charged the jury, that if they believed,
from
Page 54 U. S. 289
the evidence in the case, that the
venditioni exponas,
by virtue of which the land in controversy was sold, and under
which the defendants became purchasers thereof, was issued and
tested after the death of said William Crane, and without a revival
of the judgment by
scire facias, then such sale and
purchase were void, and conferred no title on defendants.
The defendants excepted and brought the case up to this
Court.
Page 54 U. S. 290
MR. JUSTICE DANIEL delivered the opinion of the Court.
This was an action of ejectment, instituted in the court below
by the plaintiff, a citizen and inhabitant of the State of
Tennessee, against the defendants, citizens and inhabitants of the
State of Mississippi; and the facts proved in the cause and about
which there appears to have been no contrariety of opinion, were to
the following effect. That the plaintiff and the defendants derived
their titles from one William Crane, who was at one time seized and
possessed of the demised premises. That being so seized and
possessed, Crane conveyed the land, on the 21st of September, 1840,
to one Pitser Miller, for the purpose of securing a debt in said
conveyance mentioned; that this deed from Crane, after having been
proved, was delivered to the probate clerk of the county wherein
the land was situated, on the 7th day of December, 1840, and was on
that day recorded. That
Page 54 U. S. 291
this land was afterwards duly advertised for sale under the
trust above mentioned, was regularly sold in pursuance thereof, by
the trustee, on 20 April, 1843, to the lessor of the plaintiff for
the sum of $1,000, and conveyed to him by the trustee by deed which
was acknowledged and recorded on the day and in the year last
mentioned. That the defendants were in possession of the demised
premises at the commencement of this action, and that the land in
dispute was worth $4,000.
The defendants then proved, that on 17 November, 1840, a
judgment was recovered in the circuit court of the county in which
the demised premises are situated, against the said Crane, for the
sum of $6,000; that on this judgment, an execution was sued out
against the goods and chattels, lands and tenements, of the said
Crane, returnable to the 1st Monday in June, 1841, which execution,
on the same day on which it was sued, came to the hands of the
sheriff of the county, and was by him levied on the land in
controversy on 16 April, 1841. That thereupon the said Crane
claimed the benefit of the valuation law of Mississippi, and in
pursuance of that law, the land was valued at six thousand dollars,
and that being after such valuation advertised and offered for
sale, and two-thirds of the appraised value not having been offered
for the said land, the execution and papers connected therewith
were returned to the clerk's office of the court of the county,
according to law; that after the expiration of twelve months,
viz., on 30 May, 1842, a writ of
venditioni
exponas, tested on the 1st Monday in March, 1842, was sued out
by the clerk of the county aforesaid, directed to the sheriff of
said county, commanding him to sell the land which had been levied
upon, and on which the appraisement and suspension had been taken,
as before set out; that by virtue of this writ of
venditioni
exponas, the said sheriff, after duly advertising the land,
sold the same on 17 August, 1842, when the defendants became the
purchasers thereof, at the price of $800, and having paid the
purchase money, the sheriff conveyed to them the said land by a
deed in due form of law, which was acknowledged and recorded on the
17th of August, 1842, the date of the said deed; that under this
deed the defendants were in possession of, and claimed title to,
the land in question.
The plaintiffs' lessor then proved that Crane, upon an execution
against whom the land had been seized, and at whose instance that
execution had been stayed under the provisions of the statute,
departed this life on 20 February, 1842, during the twelve months'
suspension of the proceedings on that process, and before the test
and suing out of the
venditioni exponas
Page 54 U. S. 292
under which the land had been sold, and purchased by the tenants
in possession.
Upon the foregoing facts, the judge charged the jury, that if
they believed from the evidence, the
venditioni exponas,
by virtue of which the land in controversy was sold, and under
which the defendants became the purchasers thereof, had been sued
out and tested after the death of Crane, and without a revival of
the judgment by
scire facias, then the sale and purchase
were void, and conferred no title on the tenants in possession.
With reference to the proofs in this case, and the charge
pronounced thereon by the court below, a single question only has
been discussed by the counsel, and it is certainly that which must
be decisive upon the judgment of this Court,
viz., the
question involving the validity of the proceedings upon the
judgment against Crane, and the legal consequences flowing from
those proceedings. By the statute of Mississippi
vide
Howard & Hutchinson's Collection, c. 34, sec. 5, 344, deeds of
trust and mortgages, are valid as against creditors and purchasers,
only from the period at which they are delivered to the proper
recording officer. By the law of the same state
vide How.
& Hutch. c. 47, sec. 43, 621, a judgment
proprio
vigore operates a lien upon all the property of a defendant
from the time that it is rendered.
The trust deed from Crane to Pitser Miller, not having been
recorded until after the judgment against Crane, and the sale under
the trust not having been made until after the lapse of more than
three years from the judgment, and not until two years after the
levy of the execution upon the lands under that judgment, the title
derived from the sale and conveyance by the trustee, must, by the
operation of the statutes above cited, be inevitably postponed to
the rights of the claimant under the judgment, unless the latter,
with the proceedings had thereon, can have been rendered null by
some vice or irregularity which deprived them of legal
validity.
It is insisted, for the lessor of the plaintiff, that such vice
and irregularity are manifested by the facts which controlled the
charge of the judge of the court below,
viz., the suing
forth of the
venditioni exponas and the proceedings upon
that process, after the death of the defendant in that judgment,
and without any revival thereof against the representative of that
defendant.
In considering the objection thus urged, it must be taken as a
concession on all sides that, by the law of Mississippi, the
judgment against Crane operated as a lien on his land, and that by
the execution and levy, the fruits of that judgment, the lien had
attached particularly and specifically upon the subject of
Page 54 U. S. 293
its operation. So far, then, as the rights of the parties to the
judgment and the subject matter to be affected by those rights were
concerned, everything was determined; all controversy was closed.
The law had taken the subject entirely to itself, to be applied by
its own authority and its own rules. Did the indulgence of
appraisement, and the temporary suspension allowed in a certain
predicament to the debtor, alter the rights or obligations of the
parties, or change the status, or liability, or appropriation, of
the subject which the law had already taken into its own hands? To
admit of any conclusions like these, would be to open again
controversies already closed, and to wrest from the fiat of the
law, the subjects it had specially and absolutely applied. The
privilege of appraisement and suspension was in itself a great
indulgence; it would become an opprobrium to justice, if it could
be converted into a means of abrogating rights which she had
expressly and deliberately conferred. The appraisement and
suspension wrought no change in the relative position of the
parties, it neither released nor weakened the hold taken by the law
on the subject, but only completed the proceedings on the
conditions which the statute had prescribed, the operation it had
begun, and which it had the regular authority to fulfill. We regard
the
venditioni exponas in this case merely as a
continuation and completion of the previous execution by which the
property had been appropriated, and was still in the custody of the
law, and not as a separate, independent, much less an original
proceeding, the offspring or result of a distinct and farther
adjudication. This interpretation is in conformity with the meaning
and purpose of the process of
venditioni exponas, and with
the terms of that writ as provided in the statute of Mississippi,
which runs in the following language,
viz., vide How.
& Hutch. Col. c. 42, sec. 18
"We command you that you expose to sale those goods and
chattels, lands and tenements of A B, to the value of which,
according to our command, you have taken, and which remain in your
hands unsold as you have certified to our judges, of our court, to
satisfy C D the sum of whereof in our said court he hath recovered
execution against the said A B by virtue of a judgment in the said
court &c.,"
thus showing the consummation of the right of the plaintiff, the
divestiture of possession of the defendant, and the transfer of
that possession to the custody and possession of the law by the
levy of the previous execution. Considering this to be the
situation of the property, and regarding the force of the judgment
and levy as not having been affected by the appraisement and
suspension of sale, it becomes unimportant to investigate the
results attempted to be deduced from the fact
Page 54 U. S. 294
that the
venditioni exponas was sued out after the
death of the defendant Crane.
According to our view, this fact would have been immaterial both
upon the rules of the common law and upon the provisions of the
stat. of 29 Car. II adopted in many of the states, for by the
former the execution would have been valid if tested before the
death of the defendant, and by the statute if delivered to the
officer before that period; but in this instance, not only did the
line which could be enforced by
fieri facias exist from
the date of judgment according to the statute of Mississippi, but
it was actually consummated by seizure in the lifetime of the
defendant in the judgment. Upon the point of the validity of an
execution against the personalty if tested and sued in the lifetime
of the debtor, numerous authorities might be cited from the English
decisions and from the adjudications of the state courts, as well
as the decision of this Court in the case of
Erwin's
Lessee v. Dundas, 4 How. 58, in which many of the
cases have been reviewed. A particular reference to the cases upon
this point, however, is not deemed important in the present
instance, though it may not be altogether out of place to refer to
several decisions of the Supreme Court of Mississippi ruling a
doctrine which would go very far in sustaining the title of the
defendants in the ejectment, admitting that the validity of the
first execution and levy on the judgment against Crane was a matter
regularly open for examination. Thus the cases of
Smith v.
Winston, 2 How. (Miss.) 601; of
Drake v. Collins, 5
id. 253; and of
Harrington v. O'Reilly, 9 Sm.
& Marsh. 216, have laid it down as the law of Mississippi in
relation to real as well as personal estate,
"that a sale made under an execution which issued without a
revival of the judgment is not absolutely void but voidable only,
and cannot be avoided collaterally."
This last question this Court do not feel themselves now called
upon to settle; considering the levy under the first judgment
against Crane and the lien thereby created as having been
consummated, and the property placed by the proceedings in the
custody of the law, they regard the title of the defendants below
derived from the judgment, the levy of the
fieri facias,
and sale under the
venditioni exponas, as regular and
valid, and one which should have been sustained. The judgment of
the district court is therefore reversed, and the cause remanded to
that court to be tried upon a
venire facias de novo, in
conformity with this opinion.
Order
This cause came on to be heard on the transcript of the record
from the District Court of the United States, for the Northern
Page 54 U. S. 295
District of Mississippi, and was argued by counsel. On
consideration whereof, it is now here ordered and adjudged by this
Court, that 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 district court with directions to award a venire facias
de novo and to proceed therein in conformity with the
opinion of this Court.