Tayloe v. Thomson's Lessee

ERROR to the circuit court of the county of Washington in the district of Columbia.

This was an ejectment brought by the defendant in error in the circuit court for the recovery of a lot of ground in the city of Washington. The defendant pleaded the general issue, and on the trial a verdict was given for the plaintiff below, subject to the opinion of the court on a case agreed, which is stated at large in the opinion of the court.

The case was argued by Mr Jones for the plaintiff in error; and Mr Key and Mr Dunlop for the defendant.

For the plaintiff it was said, that the facts exhibited an extreme case, which brings up, under the strongest circumstances against it, the question of the continued lien on lands of a judgment upon which execution has not been issued. The purchaser of a lot of ground, in possession under a complete title from the former owner, is to be deprived of it by a judgment creditor of his grantor; who having exhausted all the personal remedies against his debtor, seeks to go back on his judgment, and to proceed against the real estate sold and conveyed, for a full and legal consideration, six years before.

It is not intended to raise the question, whether any lien on lands exists under a judgment. A party having a judgment may elect to bind the lands, and he may proceed against them; the statute having made lands subject to execution as personalty. The statute of 5 George II, ch. 7, made lands in the colonies subject to such execution in favour of British merchants: and although various constructions have been given to that statute in the different states of the United States; in Maryland it has been held to subject lands in general to execution and sale.

But while it is admitted that lands in Maryland are generally held to be subject to sale under the lien of a judgment; no decisions of the courts Maryland are to be found, by which this liability has been judicially established. The true construction of the statute is therefore within the power of this court; and a common error as to its interpretation, if such error exists, will not support the mistaken interpretation, however universal it may be: even if it had gone into judicial application it will be corrected. 5 Randolph's Reports, 53.

The principle on which the plaintiff below rests his claim is, that the judgment created a general lien on the land of the defendant in the judgment; which continued and subsisted until the debt was satisfied, or a sale was made of the land under the judgment.

It is contended that the acts of the plaintiff amounted to a relinquishment of this lien; and that the proceedings under the judgment against the debtor, with the effects of these proceedings, operated as an abandonment of the lien; and that the surrender of his effects under the insolvent law was a satisfaction of the lien.

The first process under the judgment was a capias ad satisfaciendum; under which the body of the defendant was taken and committed to prison. Originally, at the common law, execution of the body was satisfaction of the debt, except there was an escape, or the party died in prison. The defendant Glover having broken the prison rules, an action was brought on the bonds given by him, and the same was prosecuted to judgment. The effect of these proceedings was to cancel the lien of the judgment on the real estate of the debtor. The plaintiff in the judgment has elected to proceed against the person of his debtor, and by these proceedings, and by the subsequent discharge of the defendant under the insolvent law, his powers under the judgment were exhausted.

For the plaintiff in error it was also contended; that the operation of the insolvent law was to annul the judgment against the land, so far as to deprive the plaintiff in the suit of the right to proceed by execution against the land, the surrender of the property of the debtor, being a satisfaction of the judgment. This is the express operation of the fifth section of the insolvent law; which directs the sale of the property of the insolvent by the trustee, who, after satisfying all incumbrances and liens, shall divide the estate of the insolvent among the creditors, in proportion to their respective claims: and which declares 'that no process against the real or personal property of the debtor, shall have any effect or operation; except process of execution and attachment in the nature of execution, which shall have been put into the hands of the marshal antecedent to the application of the insolvent.'

Thus all further process on the judgment was prevented: and although the land in the hands of the trustee might be subject to the lien of the judgment, and the trustee bound to satisfy such lien out of the proceeds of the sale of the same, which he was directed to make; the plaintiff could only obtain the fruits of the judgment through such sale.

Mr Dunlop and Mr Key, for the defendant.

It has been contended by the counsel for the plaintiff in error, that a judgment is no lien on lands in this district: that the true construction of the statute 5 George II., under which the lien is set up, does not warrant it: and that this court ought to take up the subject as res integra.

We say the question is no longer open; it is 'res judicata;' and has long since been settled by judicial decisions and the practice of Maryland, of which this county formed part before the cession. M'Eldery vs. Smith, 2 Harris and Johns. Rep. 72. 3 Harris and M'Henry, 450. 2 Harris and Johns. 64.

The judgments in June 1818 bound the premises in controversy. Glover had then, as the case admits, a valid title. The plaintiff in error bought afterwards, and was bound to take notice of the judgments.

Upon fieri facias issued upon the judgments, the defendant in error acquired his title by purchase; and it is upon the plaintiff in error to show that the judgments and executions were invalid, or satisfied, or the lien discharged.

It is not pretended that there was any actual payment or satisfaction. To show a legal satisfaction, or at least an extinguishment of the lien on the lands, the plaintiff alleges, 1. The previous writs of ca. sa. against Glover, upon which he was committed and gave a prison bounds bond, under the act of the 3d March 1803, sec. 16, Burch's Digest, 244. A recommitment on these executions after the year, under the act of the 24th June 1812, sec. 3; and his release under the insolvent law. Burch's Digest, 277. It is said these writs and the proceedings under them satisfied the judgment in law; or at least amounted to an election by the judgment creditor, to pursue his remedy against the body, and discharged the land.

It is no case of election. The judgment creditor could not pursue both remedies at once; but he could successively, until he got the suits of his judgment. If one failed, he had a right to resort to the other.

Taking the body in execution is not payment; but, in the language of Coke, 'a gage for the debt.' His body is taken 'to the intent that he shall satisfy, and when the defendant pays the money he shall be discharged from prison.' It is true, if the plaintiff, after taking the body, release the debtor, or assent to his release, he cannot afterwards proceed on the judgment. He is presumed by law to be satisfied.

But here there is no assent of the creditor; the proceedings, both as to the prison bounds bond, and the discharge under the insolvent law, are had against him 'in invitum.' They are for the easement of the debtor; and are statutory discharges, without the consent of the creditor, or power in him to resist them. 'The plaintiff (says lord Coke) shall not be prejudiced of his execution by act of law which doth wrong to no one.' 'The death of the defendant is the act of God, which shall not turn to the prejudice of the plaintiff; and he shall have a new execution.'

The authorities are clear, that an escape from the sheriff or a statutory discharge shall not prejudice the creditor, or extinguish his original judgment. Though in the case of escape the creditor may sue the sheriff, he may also retake the debtor, and 'until he be satisfied in deed, debtor cannot have audita querela;' because 'peradventure the sheriff may be worth nothing.' Blumfield's case, Coke's Rep. part 5, vol. 3, 86. b. Nadin vs. Battie and Wardle, 5 East. 147. The United States vs. Stansbury and Morgan, 1 Peters, 573.

The taking the body in execution, and the statutory discharge, without the assent of the creditor, does not extinguish the judgment or the lien, unless the statute says so. Here the statute negatives the idea of a discharge. The insolvent law only releases the person, and the judgment is left in full force against the property. The prison bounds bond statute authorizes a recommitment after the year. It looks to the judgment and execution, as in force, and only suspended from motives of humanity to the debtor. If the debtor stays in the bounds, he is recommitted after the year; the execution not being discharged. Can he be better off by breaking the bounds? Can he prejudice the creditor by his own wrongful act, by violating the law, and abusing the privileges which its humane provisions gave him.

The intent of the act of 1812 was to limit the duration of the privilege of the bounds to the debtor, to force payment or a discharge under the insolvent law at the end of the year.

If, as is contended, the breaking of the bounds, and the forfeiture of the debtor's bond releases the original judgment and execution; the very evil the statute meant to remedy will continue undiminished.

If the debtor's breach of the prison bounds discharges the original judgment, and gives the creditor in substitution for it the bond and sureties, the same course may be renewed by his sureties upon the executions against them, and so on ad infinitum. There might be no end to the plaintiff's pursuit.

Again, it is argued, if the forfeiture of the prison bounds bond did not extinguish the original judgment and lien, we had our election, to take the bounds bond and sureties, or a ca. sa.; that we could not have both. That we elected the bond.

We say the bond is additional security; that it is a cumulative remedy; and that we can pursue both, until satisfaction of the debt. They are not incompatible, but may well stand together like the case of appeal bonds. Both are given at the instance and for the benefit of the debtor, without the creditor's consent, or his being consulted; and ought not to prejudice him.

This is like the case of an escape; it is in fact an escape; the debtor, by the prison bounds bond, is taken out of the custody of the sheriff, put in to the custody of his sureties in the bond, and escapes. The creditor may sue the sheriff, or the bond sureties, and also retake the defendant. Peradventure, as Coke says in Blumfield's case, the sheriff or the sureties may be worth nothing. Espinasse's N. P. 611. Buller's N. P. 69. Ford Terretenant of Preston vs. Gwyn's Adm. 3 Har. and Johns. 497.

Lastly, it is said the fifth section of the insolvent law, Burch's Digest, 242, makes void the fi. fa. under which we claim title.

That section forbids process against the real or personal property of the debtor, not issued or in the marshal's hands previous to the debtor's application for relief. Its intent was to pass the debtor's remaining property, not already bound by execution, into the trustees hands, for equal distribution amongst his creditors.

In this property (the lot now in controversy) there was no remaining interest of Glover to pass to the trustee. Subject to the plaintiff's lien, the whole remaining interest was in Tayloe, the alienee of Glover, and the plaintiff in error. The fifth section of the insolvent law does not apply to, and was never meant to cover any such case.

Mr Justice Baldwin delivered the opinion of the Court.