1. A creditor's bill, to be a
lis pendens and to
operate as a notice against real estate, must be so definite in the
description of the estate as that anyone reading it can learn
thereby what property is the subject of the litigation. If it is
not so, it will be postponed to a junior bill which is.
2. A party entitled to a homestead reservation under the laws of
Illinois --
Page 69 U. S. 238
whose property in which it is a court of chancery has ordered in
general terms to be sold to satisfy a creditor whom he had
attempted to defraud by a secret conveyance of it -- must set up
his right, if at all, before the property is thus sold. He cannot
set it up collaterally after the sale, and so defeat an ejectment
brought by a purchaser to put him out of possession.
3. When chancery has full jurisdiction as to both persons and
property, and decrees that a
master of the court sell and
convey real estate, the subject of a bill before it, a sale and
conveyance in conformity to such decree, is its effectual to convey
the title as the deed of a sheriff, made pursuant to execution on a
judgment at law. The defendant whose property is sold need not join
in the deed.
Sherry had obtained a judgment in ejectment for some lots and a
house on them, in Illinois, against Miller, in the circuit court
for the Northern District of that state, and this was a writ of
error to reverse it.
It appeared, on the trial below, that W. & W. Lyon had
obtained a judgment against Miller in October, 1858, and sued out a
fi. fa., on which
nulla bona was returned. In
February, 1859, they filed a
creditor's bill against the
same Miller, his wife, and one Williams (son-in-law of Miller),
charging that Miller had, on the 6th of April, 1857, conveyed the
premises now in controversy -- describing them, and describing
them, moreover, as lots, which at the time of the conveyance, and
at the time of the bill filed,
Miller occupied, and, with his
family, resided on -- to this Williams, to defraud creditors,
and praying that the deed should be set aside, the premises sold,
and his debt paid out of the proceeds. Miller and Williams answered
the bill. In June, 1860, the cause was heard, the deed set aside as
fraudulent, and the
master in chancery for the court
ordered to sell the premises, and to execute to the purchaser
good and sufficient deeds of conveyance, and that the sale
so made shall bar and divest
all, and all manner of
interest or right, which the said Miller or any of the
defendants might have in the property or in any part of it. The
master accordingly did sell, for $1,867, and by deed convey, in
September, 1860, the premises to one Bushnell, who conveyed to
Sherry, plaintiff below.
It further appeared that a firm named Mills & Bliss had
Page 69 U. S. 239
also obtained a judgment against Miller in the same court in
October, 1857 -- that is to say, a year before the judgment of W.
& W. Lyon -- and that on a
fi. fa. issued upon it
nulla bona was also returned. In April, 1858, Mills &
Bliss filed a
creditor's bill against Miller and a certain
Richardson, Williams, the son-in-law of Miller, and person to whom,
by deed of 6th of April, 1857, he had conveyed the house and lots
in controversy,
not being made a party. This bill --
which, it will be noted, was filed several months before the bill
of W. & W. Lyon -- charged a variety of frauds in
general
terms, against Miller, and particularly, that he had "made a
sale of his stock of goods and merchandise, notes and accounts, at
Ottawa aforesaid, and of great value, to this defendant,
Richardson." It also charged that Miller was, at the time when the
judgment was obtained,
"and now is, the owner, or in some way or manner beneficially
interested
in some real estate in this, or some other state or
territory, or some chattels real of some name or kind, or some
contract or agreement relating to
some real estate, or the
rents, issues, and profits of
some real estate."
But the bill, unlike that of W. & W. Lyon, contained no
reference to the specific property, the subject of the ejectment.
And there was no
reference to real estate in the charging
part of the bill other than the general one of "some real estate,"
&c., as above given. There was a special prayer that the sale
to Richardson should be declared void and that the property or its
avails should be applied to the payment of the judgment of Mills
& Bliss.
The matter being referred to a master, Miller, was examined
before him.
He, Miller, then disclosed the fact of the
conveyance of the house and lots to Williams, his son-in-law, by
the deed of April, 1857. In March, 1860, the master filed his
report containing the evidence just stated. Upon this, Mills &
Bliss (December, 1860), filed an amendment to their original bill
making Williams a party, process being issued against him, but the
process not being served. This amendment charged that the deed of
Miller to Williams of April, 1857, was fraudulent and void.
Williams did not
Page 69 U. S. 240
answer, and the bill as to him was dismissed. A receiver was
appointed July 13, 1861, and
Miller was ordered to convey
to him, which he did on the 26th of that same month. The
deed embraced, by description, the premises in controversy, but
they were conveyed,
subject to the rights which Miller might
have in them "under the homestead law of Illinois."
Pursuant to an order of court, the receiver, on the 23d of
August, 1861, sold and conveyed the property for $500 to one
Benedict, the deed, like Miller's own to the receiver, being
subject to the reservation of the "homestead right."
In reference to this reservation it is necessary here to state
that a statute of Illinois enacts that "the lot of ground and the
buildings thereon, occupied as a residence, and owned by a debtor
being a householder, and having a family," to the value of one
thousand dollars, "shall be exempt from levy and forced sale, under
any process or
order from any court of law or
equity in this state," and it further declares, that
"No release or waiver of such exemption shall be valid, unless
the same shall be in writing, subscribed by such householder, and
his wife, if he have one, and acknowledged in the same manner as
conveyances of real estate are by law required to be acknowledged,
it being the object of this act to require, in all cases, the
signature and acknowledgment of the wife as conditions to the
alienation of the homestead."
At the time of the ejectment below, Miller was living with his
wife and children in a house on the premises sold; which were worth
about $2,700.
Upon these facts, the counsel of the plaintiff below asked the
court to charge the jury:
1. That Mills & Bliss, by filing their bill against Miller,
and service of process, obtained a lien upon all the property and
effects of Miller, which lien had, by the decree and sale of the
receiver, passed into a title in Benedict which title related back
to the service of process, and had become paramount to the title of
the plaintiff.
2. That the defendant was entitled to a homestead right under
the laws of the State of Illinois, in such cases made
Page 69 U. S. 241
and provided, which he could set up as a defense in this
case.
The court gave neither instruction, but gave instructions in
substance the reverse of them. Its action herein was the question
before this Court.
Page 69 U. S. 248
MR. JUSTICE SWAYNE delivered the opinion of the Court.
The proceedings under the bill filed by the Lyons appear to have
been, in all respects, regular. W. & W. Lyons had obtained a
judgment at law and issued an execution, upon which the return of
nulla bona was made. This laid the foundation for a
creditor's bill, and such a bill was filed. The necessary parties
were brought before the court and answered.
The court had full jurisdiction, both as to the parties and the
property. The decree was regularly entered, and the sale and
conveyance by the master to Bushnell were made in pursuance of it.
The only objection taken to the proceedings is that Williams, in
whom was vested the legal title, was not ordered to convey, and did
not convey. A conveyance by him was not necessary.
Where a court of equity has jurisdiction, as in this case, a
sale and conveyance in obedience to a decree is as effectual to
convey the title as the deed of a sheriff, made pursuant to a sale
under an execution issued upon a judgment at law. When the object
of the suit is to compel the conveyance of the
Page 69 U. S. 249
legal title by the defendant, and the decree does not require a
sale, the title will not pass until the deed is executed -- unless
it be provided, as has been done in some of the states, by statute,
that the decree itself shall operate as a conveyance. In all such
cases, the court has power to compel the defendant to convey. When
the property is beyond the local jurisdiction of the court, and the
defendant is before it, the court can compel him to convey, as it
may direct, for any purpose within the sphere of its authority.
This is an ordinary exercise of the remedial jurisdiction of those
courts, and the power is one of the most valuable attributes of the
equity system. The principle of those cases has no application
here. The title derived by Bushnell from these proceedings must be
deemed perfect, unless it be invalidated by that derived to
Benedict from the sale and conveyance under the bill of Mills &
Bliss.
The judgment obtained by Mills & Bliss, was the elder one,
but it was subsequent to the conveyance from Miller to Williams. It
is not contended that the judgment was a lien on the premises. The
legal title having passed from the judgment debtor before its
rendition, by a deed valid as between him and his grantee, it could
not have that effect by operation of law. The questions to be
considered arise wholly out of the chancery proceedings.
The filing of a creditor's bill and the service of process
creates a lien in equity upon the effects of the judgment debtor.
[
Footnote 1] It has been aptly
termed an "equitable levy." [
Footnote 2]
The original bill was in the form of a creditor's bill, as found
in the appendix to Barbour's Chancery Practice. It contained
nothing specific, except as to the transactions between Miller and
Richardson. There was no other part of the bill upon which issue
could have been taken as to any particular property. It was
effectual for the purpose of creating a general lien upon the
assets of Miller -- as the
Page 69 U. S. 250
means of discovery, and as the foundation for an injunction --
and for an order that he should convey to a receiver. If it became
necessary to litigate as to any specific claim, other than that
against Richardson an amendment to the bill would have been
indispensable. It did not create a
lis pendens, operating
as notice, as to any real estate. To have that effect, a bill must
be so definite in the description, that anyone reading it can learn
thereby what property is intended to be made the subject of
litigation. In
Griffith v. Griffith, [
Footnote 3] it is said:
"To have made such a bill constructive notice to a purchaser
from the defendant therein, it would have been necessary to allege
therein that these particular lots, or that all the real estate of
the defendant in the City of New York, had been purchased and paid
for, either wholly or in part, with the funds of the infant
complainant. Or some other charge of a similar nature should have
been inserted in the bill, to enable purchasers, by an examination
of the bill itself, to see that the complainant claimed the right
to, or some equitable interest in, or lien on, the premises."
It is evident that the premises in controversy were not in the
mind of the pleader when this bill was drawn.
There is another reason why the bill could not operate as
constructive notice. Williams, who held the legal title, was not a
party.
"We apprehend that to affect a party as a purchaser
pendente
lite, it is necessary to show that the holder of the legal
title was impleaded before the purchase which is to be set aside.
[
Footnote 4]"
The principle applies only to those who acquire an interest from
a defendant
pendente lite. [
Footnote 5] The title passed from Williams to
Bushnell.
The amended bill was undoubtedly sufficient, and it made
Williams a party. But he was not served with process, and if he had
been, this bill could have operated only from the time of the
service. Where the question of
lis pendens arises
Page 69 U. S. 251
upon an amended bill, it is regarded as an original bill for
that purpose. [
Footnote 6] It
was a gross irregularity to take a decree against Miller without
Williams' being before the court, and if the attention of the court
had been called to the subject, the amended bill must have been
dismissed. The decree against Miller as to the premises in
controversy is a legal anomaly. But it is unnecessary to consider
this subject, because before the amended bill was filed, the
proceedings under the bill of the Lyons had been brought to a close
and the title of Bushnell consummated. His rights could not be
affected by anything that occurred subsequently. He had no
constructive notice of the proceedings in the case of
Mills & Bliss. Had he and his alienee actual notice? This also
is a material inquiry. [
Footnote
7] We have looked carefully through the record and find no
evidence on the subject. Had the suit below been in equity, it
would have been necessary for the defendant in error to deny notice
to himself or to his grantor. The want of notice to either would
have been sufficient. The form of the action rendered a denial
unnecessary. The plaintiff having exhibited a title, apparently
perfect, the burden was cast upon the defendant of proving
everything upon which he relied to defeat it. As the case was
developed on the trial in the court below, the title of the
defendant in error properly prevailed.
2. In regard to the homestead right claimed by the plaintiff in
error, there is no difficulty. The decree under which the sale was
made to Bushnell expressly divested the defendant of all right and
interest in the premises. It cannot be collaterally questioned.
Until reversed, it is conclusive upon the parties, and the reversal
would not affect a title acquired under it while it was in
force.
We think that the learned judge who tried the case below, was
correct in refusing to give the instructions submitted by the
plaintiff in error, and in giving those to which exception was
taken.
Judgment affirmed with costs.
[
Footnote 1]
Bayard v. Hoffman, 4 Johnson's Chancery 450;
Beck
v. Burdett, 1 Paige 308;
Slorm v. Waddel, 2 Johnson's
Chancery 494;
Corning v. White, 2 Paige 567;
Edgell v.
Haywood, 3 Atkyns 352; 1 Kent 263.
[
Footnote 2]
Tilford v. Burnham, 7 Dana 110.
[
Footnote 3]
9 Paige 317.
[
Footnote 4]
Carr v. Callaghan, 3 Littell 371.
[
Footnote 5]
Stuyvesant v. Hall, 2 Barbour's Chancery Rep. 151;
Fenwick's Admr. v. Macey, 2 B.Monroe 470;
Parks v.
Jackson, 11 Wendell 442.
[
Footnote 6]
Clarkson v. Morgan's Devisees, 6 B.Monroe 441.
[
Footnote 7]
Parks v. Jackson, 11 Wendell 442;
Roberts v.
Jackson, 1
id. 478.
