Although, by the laws of Alabama, a lien upon property accrues
from the delivery of the execution to the sheriff or marshal, and
the rights of creditors claiming under the same jurisdiction are
adjudged accordingly, yet the same rule does not apply where a
controversy arises between executions issued by a court of the
United States and a state court.
In such a case, the rule is that whichever officer, the sheriff
or the marshal, acquires possession of the property first by the
levy of the execution obtains a prior right, and a purchaser at a
judicial sale will take the property free from all liens of the
same description.
This case originated in the District Court of the United States
for the Middle District of Alabama between Samuel Woodward,
plaintiff in execution, and Amos Albritton, claimant, defendant,
who were afterwards represented by their administrator and executor
respectively. It was a contest as to the superior validity of
executions issued out of a state court and a United States court
under the following circumstances:
"
United States Execution"
"
1842"
"May term. Woodward's judgment against Pulliam in the District
Court of the United States for the Middle District of Alabama."
"
June 10. Execution issued."
"
October 26. Marshal levied on the negroes."
"
State Execution"
"
1842"
"April 19. Two judgments against Pulliam in the district Court
of Pickens County."
"May 4. Executions on these issued."
"July 12. Sheriff levied on certain slaves. Bonds given for
their forthcoming on first Monday in August."
"August 3. Execution on these forthcoming bonds."
"September 21. Execution levied on the negroes named in the
issue in this case."
"October 3. Sheriff sold slaves to Albritton."
Upon the trial, the court instructed the jury as follows,
viz.,
"On the case being submitted to the jury, the court charged the
jury that if the executions which issued on the two judgments
against Pulliam were levied upon sufficient property, and a bond
given for the forthcoming of the property on the day of sale, in
each case, which bonds were forfeited and thus returned by the
sheriff, and that afterwards executions were issued on the
judgments rendered on the said forthcoming bonds, against the said
Pulliam and his surety in the said forthcoming bonds, which said
executions did not come to the hands of the sheriff until some days
after the execution in favor of the plaintiff was received by the
marshal; that the said plaintiff had the priority of lien on the
property of Pulliam, and that the said negroes levied upon by the
marshal, in said case, were liable to satisfy the execution of the
said plaintiff, notwithstanding they had been levied upon and sold
by the sheriff under the execution against Pulliam and his surety
in the forthcoming bonds; to which charge claimant excepts, and
prays the judge of this Court to sign and seal this bill of
exceptions, which is accordingly done."
"WM. CRAWFORD [SEAL]"
This instruction being in favor of Woodward, the plaintiff in
execution, Albritton sued out a writ of error and carried the case
to the Circuit Court of the United States, for the Fifth Judicial
Circuit, Southern District of Alabama.
In April, 1853, that court passed an order "that the said cause
be transferred to the Supreme Court of the United States, according
to the statute in such case made and provided."
Page 58 U. S. 474
MR. JUSTICE CAMPBELL delivered the opinion of the Court.
This was an issue in the district court, under a statute of
Alabama, Clay's Digest 213, ยงยง 62, 64, for the trial of the
Page 58 U. S. 475
right to property taken under an execution from that court, in
favor of the appellee, and claimed by the testator of the
appellant, as belonging to him, and not to the defendant in the
execution.
It appeared on the trial that at the delivery of the execution
to the marshal in favor of the appellee, the property belonged to
the defendant, and that the levy was made before the return day of
the writ; but that before this levy, the property had been seized
and sold to the claimant by a sheriff in Alabama, under executions
issued from the state courts, upon valid judgments, after the teste
and delivery of the executions from the district court.
The district court instructed the jury, that a sale under a
junior execution from the state court did not devest the lien of
the execution from the district court, and that the writ might be
executed notwithstanding the seizure and sale under the process
from the state court.
The lien of an execution, under the laws of that state,
commences from the delivery of the writ to the sheriff, and the
lien in the courts of the United States depends upon the delivery
of the writ to their officer. But no provision is made by the
statutes of the state or United States for the determination of the
priorities between the creditors of the respective courts, state
and federal. They merely provide for the settlement of the
priorities between creditors prosecuting their claims in the same
jurisdiction.
The demands of the respective creditors, in the present
instance, were reduced to judgments, and the officers of either
court were invested with authority to seize the property.
The liens were consequently coordinate or equal, and in such
cases, the tribunal which first acquires possession of the
property, by the seizure of its officer, may dispose of it so as to
vest a title in the purchaser, discharged of the claims of
creditors of the same grade.
This Court applied this principle,
Williams
v. Benedict, 8 How. 107, to determine between
judgment creditors in a court of the United States, and an
administrator holding under the orders of a probate court of a
state; in
Wiswall v.
Simpson, 14 How. 52, in favor of a receiver holding
under the appointment of a court of chancery of a state and a
judgment creditor; in
Peale v.
Phipps, 14 How. 368, in favor of a trustee in
possession, under the order of a county court, against such a
creditor; and in
Hagan v.
Lucas, 10 Pet. 400, between execution creditors
issuing from state and federal jurisdictions. The same principle
has been applied, in several state courts, in favor of the
purchasers at judicial sales of steamboats, and other
Page 58 U. S. 476
crafts subject to liens in the nature of admiralty liens.
Steamboat Rover v. Stiles, 5 Black 483;
Steamboat
Raritan v. Smith, 10 Mo. 527; 19 Ala. 738; and is recognized
in the courts of common law and admiralty in Great Britain. 4 East.
523; 2 Wms.Ex'rs 888;
The Saracen, 3 W.Rob.
In Alabama, the
bona fide purchaser at a judicial sale,
made to enforce a statutory lien, takes the property discharged of
liens of the same description, whether the subject of sale be land
or personal property.
Wood v. Gary, 5 Ala. 43; 12
id. 838; 11
id. 426. The propriety of the rule is
fully vindicated by the statement in
Hagan v.
Lucas, 10 Pet. 400, where this Court said:
"A most injurious conflict of jurisdiction would be likely often
to arise between the federal and state courts, if the final process
of the one could be levied on property which had been taken by the
process of the other. The marshal or the sheriff, as the case may
be, acquires by a levy as special property in the goods, and may
maintain an action for them. But if the same goods may be taken in
execution at the same time, by the marshal and the sheriff, does
this special property vest in the one or the other, or both of
them? No such case can exist; property once levied on remains in
the custody of the law, and it is not liable to be taken by another
execution in the hands of a different officer, and especially an
officer acting under a different jurisdiction."
The instruction of the district court is erroneous, and its
judgment is therefore
Reversed and cause remanded.
Page 58 U. S. 477
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of Alabama, and was argued by counsel. On consideration
whereof, it is now here ordered and adjudged by this Court, that
the judgment of the District Court of the United States for the
Middle District of Alabama 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 District Court of the United States for the
Middle District of Alabama, with directions to award a venire
facias
de novo.
