There is no statute in Virginia which expressly makes a judgment
a lien upon the lands of the debtor. As in England, the lien is the
consequence of a right to take out an
elegit. During the
existence of this, the lien is universally acknowledged. Different,
opinions seem at different times to have been entertained of the
effect of any suspension of this right.
Soon after this case was decided in the Circuit Court for the
District of East Virginia, a case was decided in the Court of
Appeals of the state, in which this question on the execution law
of the State of Virginia was elaborately argued, and deliberately
decided. That decision is that the right to take out an
elegit is not suspended by suing out a writ of fieri
facial, and consequently, that the lien of the judgment continues
pending the proceedings on that writ. This Court, according to its
uniform course, adopts the construction of the act which is made by
the highest court of the state.
In the circuit court, the United States filed a bill the object
of which was to make certain real property, assigned on 22 October,
1823 by John Morrison to Robert G. Ward, subject to a judgment
obtained in their favor in the Western District of Virginia, in
October, 1819. The assignment made by Morrison to Ward was general,
of all his property, in trust for the payment of his debts to
sundry persons. The deed of trust referred to certain previous
deeds of trust which Morrison had executed, conveying a large
portion of the same property to secure particular debts. The
previous deeds were all executed subsequent to the rendition of the
judgment in favor of the United States in October, 1819,
viz., on 14 February, 1823, 21 February, 1823, 9 March,
1823. Divers creditors of Morrison had issued their executions of
fieri facias against the property of John Morrison, which
had been duly levied upon the same, before the execution of the
general assignment of October, 1823.
On the day the judgment was obtained by the United States, in
1819, a part of the same was enjoined and an execution
Page 29 U. S. 125
was issued for the remainder, which was levied on the property
of Morrison and Roberts, and a forthcoming bond was given by John
Morrison, Roberts and their sureties, and the debt not being paid,
an execution was awarded against Morrison, Roberts and one of the
sureties, and issued in April, 1822. While it was in the hands of
the marshal, and before it was levied, the agent of the Treasury,
at the instance of the defendants, instructed the marshal to
forbear levying it, on condition of the defendants' paying the
costs, and the costs being paid, the marshal did not make a levy,
and made a return within the year 1822, that all further
proceedings were suspended in pursuance of the said instructions. A
second
fieri facias was issued on 5 February, 1825, on
which the marshal returned "no effects found, not conveyed by deed
of trust."
In the bills filed by the United States, they asserted their
claim to the payment of their judgment against Morrison in
preference to all the other creditors, out of the property assigned
to Ward, this claim extending over the property conveyed in the
deeds executed prior to the assignment, and also to the proceeds of
other real property levied on by executions issued by creditors.
The claim was asserted upon two distinct grounds. 1. Upon the
sixth-fifth section of the Act of Congress of 1799, ch. 128, which
declares that in all cases of insolvency or where any estate in the
hands of executors, administrators and assignees shall be
insufficient to pay all the debts due from the deceased, the debt
due to the United States, &c., shall be first satisfied,
&c. 2. Upon the ground that their judgment against Morrison
gave them a lien upon the land which, under the facts of the case,
they allege was a subsisting one, to overreach the liens created by
the deeds executed by Morrison.
The circuit court was of opinion that the deed of October, 1823,
was a general assignment, and that the United States was entitled
to priority out of the subject contained in that deed; that nothing
was to be considered as effectually conveyed by that deed which had
been embraced by the previous deeds, or levied upon by executions
previous to that deed; that the United States had no claim, either
by virtue
Page 29 U. S. 126
of their statutory priority or judgment, to the property
contained in the previous deeds, and levied upon by the previous
executions, except to any surpluses which might remain, and
proceeded to decree in favor of the United States for the value of
all the property in the deed of October, 1823, not embraced by the
previous deeds and executions, there being no surplus, and
dismissed their bill, so far as it asserted a claim to charge the
property conveyed by said prior deeds, or covered by the
executions.
From so much of the decree as dismissed their bill to the extent
stated, the United States appealed to this Court.
Page 29 U. S. 135
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
The single question in this case is whether the United States,
or certain other creditors of the defendant, John Morrison, have
the prior lien on lands of the said Morrison which have been
conveyed to those creditors.
In October, 1819, the United States obtained a judgment against
John Morrison in the District Court of Virginia, on
Page 29 U. S. 136
which a
fieri facias issued. The goods taken in
execution were restored to the debtor according to the law of
Virginia, and a bond taken with a condition to have them
forthcoming on the day and place of sale. This bond being
forfeited, an execution was awarded thereon by the judgment of the
district court on 2 April, 1822. A
fieri facias was issued
on the second judgment, the return on which was that the costs were
made, and all further proceedings suspended by order of the agent
of the Treasury Department. The conveyances under which the
defendants claim were dated in February and March, 1823. The United
States contend that the judgment of April, 1822, created a lien on
these lands which overreaches these conveyances.
There is no statute in Virginia which, in express terms, makes a
judgment a lien upon the lands of the debtor. As in England, the
lien is the consequence of a right to take out an
elegit.
During the existence of this right, the lien is universally
acknowledged. Different opinions seem at different times to have
been entertained of the effect of any suspension of the right.
The statute concerning executions enacts that
"All persons who have recovered or shall hereafter recover any
debt, damages, or costs in any court of record may at their
election prosecute writs of
fieri facias, elegit, and
capias ad satisfaciendum within the year for taking the
goods, lands, and body of the debtor."
The third section provides that when any writ of execution shall
issue, and the party at whose suit the same is issued shall
afterwards desire to take out another writ of execution at his own
proper costs and charges, the clerk may issue the same if the first
be not returned and executed, and where upon a
capias ad
satisfaciendum the sheriff shall return that the defendant is
not found, the clerk may issue a
fieri facias, and he
shall return that the party hath no goods or that only part of the
debt is levied, in such case it shall be lawful to issue a
capias ad satisfaciendum on the same judgment, and where
part of a debt shall be levied upon an
elegit, a new
elegit shall issue for the residue, and where
nihil shall be returned upon any writ of
elegit,
a
capias ad satisfaciendum or
fieri facias may
issue, and so
vice versa.
Page 29 U. S. 137
By the construction put by the circuit court on this section,
the party who had sued out a
fieri facias could not resort
to an
elegit, until the remedy on the
fieri
facias was shown by the return to be exhausted. The United
States had sued out a
fieri facias on the judgment of
April, 1822, and the remedy on that writ was not exhausted in
February and March, 1823, when the deeds of trust under which the
defendants' claim were executed. In the opinion of that court, the
United States could not, at the date of those deeds, have sued out
an
elegit. As the lien is the mere consequence of the
right to take out an
elegit, that court was of opinion
that it did not overreach a conveyance made when this right was
suspended.
A case was soon afterwards decided in the court of appeals, in
which this question on the execution law of the state was
elaborately argued and deliberately decided. That decision is that
the right to take out an
elegit is not suspended by suing
out a writ of
fieri facias, and consequently that the lien
of the judgment continues pending the proceedings on that writ.
This Court, according to its uniform course, adopts that
construction of the act which is made by the highest court of the
state. The decree therefore is to be reversed and annulled and the
cause remanded to the circuit court, that its decree may be
reformed as is required by this opinion.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Fifth Circuit
and District of East Virginia, and was argued by counsel, on
consideration whereof this Court is of opinion that the claim of
the United States to the lands conveyed by the deeds of February
and March, 1823, under the lien created by their judgment of April,
1822, ought to have been sustained, and that so much of the decree
of the said circuit court as dismisses the original and amended
bill of the plaintiffs, so far as it claims to charge the property
conveyed by the deed of trust of 14 February in the year 1823, from
John Morrison to James A. Lane and William Ward, and by the deed of
21 February in
Page 29 U. S. 138
the year 1823, from John Morrison to James W. Ford, and by the
deed of 9 March in the year 1823, from the said Morrison to Inman
Horner, is erroneous and ought to be reversed. This Court doth
therefore
Reverse the said decree as to so much thereof, and doth
remand the cause to the Court of the United States for the Fifth
Circuit and District of Virginia with directions to reform the said
decree so far as it is hereby declared to be erroneous and to
affirm the lien of the United States on the lands in the said deed
mentioned. All which is ordered and decreed accordingly.
