McCracken v. Hayward

THIS case came up on a certificate of division in opinion from the Circuit Court of the United States for the district of Illinois.

The case was this: In 1840, McCracken, the plaintiff in error, recovered a judgment in the Circuit Court against Hayward for the sum of $3,986.67 cents and costs.

In February, 1841, the state of Illinois passed the following law:

'An act regulating the sale of property.

'Sect. 1. Be it enacted by the people of the state of Illinois, represented in the general Assembly, That when any execution shall be issued out of any of the courts of this state, whether of record or not, and shall be levied on any real or personal property, or both, it shall be the duty of the officer levying such execution, to summon three householders of the proper county, one of whom shall be chosen by such officer, one by the plaintiff, and one by the defendant in the execution; or, in default of the parties making such choice, the officer shall choose for them: which householders, after being duly sworn by such officer so to do, shall fairly and impartially value the property upon which such execution is levied, having reference to its cash value, and they shall endorse the valuation thereof upon the execution, or upon a piece of paper thereunto attached, signed by them; and when such property shall be offered for sale, it shall not be struck off unless two-thirds of the amount of such valuation shall be bid therefor: Provided, always, that the plaintiff in any execution issued from any court of record of this state, may elect on what property he will have the same levied, except the land on which the defendant resides, and his personal property, which shall be last taken in execution. And in all other executions issued from any of the courts of this state not being courts of record, the plaintiff in execution may elect on what personal property he will have the same levied; excepting and reserving, however, to the defendant in execution, in all cases, such an amount and quantity of property as is now exempt from execution by the laws of this state: And provided, further, that all sales of mortgaged property shall be made according to the provisions of this act, whether the foreclosure of said mortgage be by judgment at law, or decree in chancery. The provisions of this act shall extend to judgments rendered prior to the first day of May, eighteen hundred and forty-one, and to all judgments that may be rendered on any contract or cause of action accruing prior to the first day of May, eighteen hundred and forty-one, and not to any other judgments than as before specified.

'Sect. 2. When any property shall be levied on and appraised in the manner required by this act, and the same shall be susceptible of a division, no greater quantity thereof than will be sufficient to pay the amount of the execution or executions thereon levied, together with the proper costs, at two-thirds of the valuation thereof, shall be offered for sale by the officer in whose hands such execution or executions may have been placed for collection.

'Sect. 3. This act shall be in force from and after its passage, and the secretary of state is hereby required to have a thousand copies thereof printed immediately after its approval, and transmit them to the clerks of the county commissioners' courts of the several counties in this state for distribution among the proper officers thereof. Approved February 27, 1841.'

In June, 1841, the Circuit Court of the United States adopted the following rule:

'When the marshal shall levy an execution upon real estate he shall have it appraised and sold under the provisions of the law of this state, entitled 'An act regulating the sale of property,' approved 27th February, 1841, if the case come within the provisions of that law; and any two of the three householders selected under the law agreeing, may make the valuation of the premises required.'

In May, 1842, a pluries execution was issued on the judgment, under which the marshal levied upon real estate, and advertised it for sale in the ensuing August. It was appraised by three householders, and no person bidding two-thirds of the valuation, it was not sold.

In March, 1843, the plaintiff sued out a venditioni exponas to sell the property levied upon as above stated; and in May served a written notice on the marshal, directing him not to have the property valued, but to sell it to the highest bidder, regardless of the statute of Illinois. The marshal replied that he conceived it to be his duty to be governed by the rule of court.

In June, 1843, the plaintiff, by his counsel, made the following motion to the court:

'1. The plaintiff, by Arnold, his attorney, comes and moves the court to set aside the return to the pluries execution issued in this cause, dated 16th day of May, 1842, under which the property levied upon was appraised, and not sold, because no one would bid two-thirds of appraised value.

'2. That the court direct the marshal to sell said property to the highest bidder, without regard to the valuation already made, and without having it valued again.

'3. That the marshal proceed to sell said property without regard to the provisions of the laws regulating the sale of property, passed since the rendition of the judgment, but that he execute the process of the court, enforcing the judgment according to the remedy existing at the time of the rendition of the judgment, and the making of the contract between the parties.

'4. That the marshal be directed to proceed and sell the property levied upon, without regard to the provisions of the act of February, 1841, of the legislature of Illinois, and of January, 1843, regulating the sale of property, above referred to.'

This motion was sustained by an affidavit, setting forth the facts in the case.

Upon the argument of the motion, the judges were divided in opinion upon the following points.

'1st. Whether the said motion shall be granted in manner and form as the same is asked, or refused, or any part thereof.

'2d. Whether the return of the marshal on the execution above set forth, dated May 16, 1842, under which the property was appraised and not sold, because two-thirds of appraised value was not bid therefor, shall or shall not be set aside as insufficient.

'3d. Whether the court shall or shall not make an order directing the marshal to sell the property levied on in the usual mode at public auction to the highest bidder, without having the same valued by three householders, and without regard to valuation which has been made, and without requiring two-thirds of said valuation to be bid therefor.

'4th. Whether the court shall or shall not direct the marshal to proceed and sell the property levied upon without regard to the provisions of the act of February 27, 1841, of the legislature of Illinois, and the rule adopting said law at the June term, 1841.

'5th. Whether the court will or will not direct the enforcement of said judgment according to the laws regulating the remedy when said judgment was entered and the contract made.'

Upon which certificate of division the cause came up to this court.

The case was submitted upon a printed argument by Isaac N. Arnold, counsel for the plaintiff, which the reporter regrets his limits will not allow him to re-publish.

Mr. Justice BALDWIN delivered the opinion of the court.