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January 1, 1846


THIS case came up, by writ of error, from the Circuit Court of the United States for the Southern District of Alabama.

It was an action of ejectment brought by Erwin, the plaintiff in error, to recover a lot in the city of Mobile, known as Hitchcock's cotton-press, bounded on the north by Main Street, on the east by Water Street, on the south by Massachusetts Street, and on the west by Royal Street, under the following state of facts.

Prior to November, 1836, Henry Hitchcock was seized and possessed of the above lot, and on the 2d of November, 1836, a judgment was recovered against him in the Circuit Court of Alabama for Mobile county, by William McGehee, to the use of Abner McGehee.

By the laws of Alabama, this judgment was a lien upon the defendants' real estate.

On the 21st of December, 1836, Hitchcock sued out a writ of error to the Supreme Court of Alabama, giving the usual bond, with Robert D. James as surety, whereby the judgment was superseded.

On the 23d of June, 1838, the judgment of the Circuit Court was affirmed in the Supreme Court, which affirmance, by the laws of Alabama, operated as a judgment on the bond in error, against both parties obligors.

On the 14th of July, 1838, Hitchcock executed a mortgage of the lot in question to Cowperthwaite, Dunlap, and Cope, to secure the payment of a debt due to them.

On the 18th of August, 1838, a fi. fa. issed from the Circuit Court clerk's office, on the affirmed judgment against H. Hitchcock, and Robert D. James, his security; which writ came to the hands of the sheriff of Mobile county, being for the amount of the debt, besides the ten per cent. damages. The sheriff indorsed that he received this execution on the 20th of August, and levied the same on certain lots in Mobile, as the property of Robert D. James, and returned it to the fall term.

On the 10th of October, 1838, Hitchcock, with the consent of the mortgagees, leased the property to Mansoney and Hurtell for a term of five years.

On the 29th of November, 1838, a venditioni exponas issued to the sheriff, commanding him to sell the property, on which he had levied, as shown by his return. To this venditioni exponas, he returned that he had advertised the property for sale, and that on the 2d day of March, 1839, all further proceedings had been stopped by an injunction.

On the 2d of March, 1839, Henry Hitchcock filed in chancery a bill against McGehee, praying, for causes shown in the bill, relief against the judgment at law, and that the same should be enjoined. On this bill, an order was made for an injunction in the following words:––

'On the complainant's executing bond, with good and sufficient security, in double the amount of the judgment at law, let an injunction issue agreeably to the prayer of the bill.


'28th February, 1839.

'To the Clerk of the Circuit Court of Mobile County, Alabama.'

The complainant, Hitchcock, filed a bond by himself and William Crawford, as his security, in the penal sum of $8,404, payable to McGehee, dated the 2d of March, 1839, with a condition which, after reciting the rendition of the judgment, the filing the bill, and granting of the injunction, &c., ran in these words: –

'Now, therefore, if the said Henry Hitchcock shall pay and satisfy all damages that the defendant McGehee may sustain by the wrongful exhibition of said bill, and in all things abide by and perform the ultimate decree which may be rendered in the cause, then this obligation to be void and of no effect; otherwise to be and remain in full force and virtue.'

A writ of injunction issued on the 2d of March, 1839, commanding the sheriff to stay proceedings on the execution; on which he returned, that on the same day he desisted from all farther proceedings, and returned the execution as enjoined.

On the 12th of August, 1839, Hitchcock died.

At the fall term of the Chancery Court, on the 25th of November, 1839, the following order was made in the cause:––


'This day came the defendant, by his solicitor, and suggests to the court, that the complainant has died since the last term of this court; and thereupon it is ordered, on motion of defendant's counsel, that the representatives of the complainant revive the proceedings by bill against the defendant, by the 1st day of April next, or the injunction shall be from thence dissolved, and the defendant have leave to proceed at law.'

At the Spring term, 1840, the 22d of May, 1840, the following order was made:––

'At the last term of this court, an order was made suggesting the death of the complainant, and that unless the suit be revived on or before the first day of the next term of said court, that the injunction be dissolved, and no party complainant being made, it is ordered that the suit abate, and that the complainant's administrator, and heirs, and security on the injunction bond, pay the costs.'

Hitchcock by his will bequeathed all his real and personal property to his wife, as trustee, with authority to make public or private sales and conveyances for payment of debts, and constituted her executrix.

On the 8th of July, 1840, Mrs. Hitchcock, without having taken out letters testamentary on the will, made an absolute sale and conveyance of the lot in question to Cowperthwaite, &c., subject to the lease above mentioned.

On the 10th of July, 1840, an alias fi. fa. issued on the affirmed judgment at law against Henry Hitchcock and Robert D. James, for the amount of the debt, and ten per cent. damages, given on affirmance, which came to the hands of the sheriff of Mobile county; on which he returned, that he had levied on the land (now the subject of this action of ejectment), as the property of Henry Hitchcock, pointed out to him by Isaac H. Erwin, executor of Henry Hitchcock, deceased; and that, on the first Monday of November, 1840, he had sold the said land to James Erwin, who was the highest bidder, for four thousand five hundred dollars.

On the 10th of February, 1841, the tenants attorned to Cowperthwaite, &c., as landlords.

On the 3d of March, 1841, Erwin brought this suit against the tenants, who thereupon attorned to him, and agreed to hold under him as landlord.

On the 8th of September, 1841, Cowperthwaite, &c., conveyed all their estate and interest in the premises to Dundas and others, the present defendants in error, who, on the 22d of March, 1842, applied to the court to be admitted into the consent rule, and to defend the action as landlords, on filing certain affidavits. This motion was resisted by the plaintiff Erwin, and also by the tenants; but in March, 1843, the court admitted them to defend the suit. Whereupon the cause went to trial, and, under the instructions of the court, the jury found a verdict for the defendants.

The plaintiff took the two following bills of exceptions.

First Exception. 'Be it remembered, that at the Spring term, 1843, of this Court, James Dundas, Mordecai D. Lewis, Robert L. Pittfield, Samuel W. Jones, and Robert Howell, appeared before the court by their counsel, and filed the affidavit of H. Barney, which is made part of this bill of exceptions, and moved the court to be admitted to appear and defend the action against the plaintiff by entering into the consent rule, and pleading. The tenants in possession, Hurtell, Mansoney, and Griffiths, resisted the said motion, and showed cause on oath against the same, which showing, which is on file, is made a part of this bill of exceptions, together with the documents thereto appertaining and referred to, and the said motion was also resisted by the plaintiff. Whereupon, the said motion coming on the be heard, the same was argued, and the hearing of said motion was continued from term to term till at this term, when the said motion was argued, and upon argument had, the said motion of the said applicants, claiming to be landlords, was granted, and the objections of the said plaintiffs, and of the tenants thereto, were overruled. And the said parties, admitted by the court to defend against the will of the said plaintiff and tenants, and the said tenants thereupon, refused to plead. For all which decisions of the court allowing said motion, the plaintiff excepts, and prays this to be sealed as a bill of exceptions, which is done accordingly.

(Signed,) J. McKINLEY. [SEAL.]'

Second Exception. 'Be it remembered, that on the trial of this cause, on the issue joined between the said plaintiff and the said James Dundas, Mordecai D. Lewis, Robert L. Pittfield, Samuel W. Jones, and Robert Howell, who have appeared as landlords, and entered into the censent rule, and pleaded not guilty; the plaintiff, to maintain the title, on his part, produced and gave in evidence the proceedings had in the Circuit Court of Mobile county, in the State of Alabama, in an action wherein William McGehee, use of, &c., was plaintiff, and Henry Hitchcock was defendant, together with the judgment, executions, sheriff's returns, &c., copies of all which are hereto annexed, marked A. Also, the proceedings of the Supreme Court of Alabama on the affirmance of said judgment, a copy of which is hereto annexed, marked B. Also, the record of the proceedings in a chancery suit, wherein the said judgment was enjoined, the injunction, &c., a copy of which is herewith, marked C. And the sheriff's deed on the sale of the property in controversy by the sheriff of Mobile county, under the said judgment, after the injunction was dissolved, a copy of which is herewith, marked D, showing that the same was purchased by James Erwin.

'It further appeared that Henry Hitchcock died on the 13th of August, 1839, that at and before the time of the rendition of the judgments, he owned in fee simple and was in the possession of the property sued for and sold by the sheriff, and continued so till his death, except that he executed a mortgage on the 14th of August, 1838, by which he conveyed the said land to Messrs. Dunlap, Cope, and Cowperthwaite, under whom the defendants claim title.

'Upon the evidence offered by the plaintiff, the court instructed the jury that the sale by the sheriff was irregular and void, and that by such purchase at the sheriff's sale, under the said judgments, and the executions aforesaid, and the injunction proceedings, the sale and conveyance by the sheriff could convey no title to the plaintiff, and that therefore he was not entitled to recover in this action; to which the plaintiff excepts, and prays the court to seal this as a bill of exceptions, which is done accordingly.

(Signed,) J. McKINLEY. [SEAL.]'

Upon these two exceptions the case came up to this Court.

The case was argued by Mr. George S. Yerger (in a printed argument) and Mr. Crittenden, for the plaintiff in error, and Mr. Clement Cox, and Mr. Sergeant, for the defendants.

Mr. Crittenden, after stating the case for the plaintiff in error, read the following opening argument by Mr. Yerger, viz.:––

The record in this case presents for the determination of the court two questions. First, whether the sheriff's sale to the lessor of the plaintiff, under and by virtue of the execution, issued after the death of Judge Hitchcock, but founded on a judgment obtained against him in his lifetime, is void. Second, whether the injunction obtained by Judge Hitchcock in his lifetime destroyed the lien of the judgment, or only suspended it.

I think the law upon both questions is in favor of the plaintiff in error.

By the law of Alabama, the judgment, not the execution, creates the lien upon lands. By the common law, an execution on a judgment may issue at any time within a year, without a scire facias. A sale made by or under such execution relates to the judgment, and passes the title from that time, as against the judgment debtor, and all who claim under him. If he had sold or assigned the property, no scire facias was necessary to make his vendees parties before execution issued, because the land was bound by the judgment, and his alienees took it cum onere. Upon his death, his interest, by operation of law, is transmitted to his heirs, or is vested by his will in his devisees; they, like the vendee or alienee, take it subject to the judgment. Be this, however, as it may, I believe, upon principle, it is clear, that, if an execution issues on a judgment within a year from the rendition of the judgment, though after the death of the defendant, if it is not superseded or avoided by the heir or terre-tenant, or by the guardian of the heir, before a sale is made under it, it passes the title of the ancestor from the date of the judgment. The execution in such case is not void, but is only voidable, and if not avoided before the sale, the purchaser takes the title. The question has been repeatedly so decided. Speer v. Sample, 4 Watts's Rep. 367; Collingsworth v. Horn, 4 Stewart & Porter, 237; Mills v. Williams, 2 Stewart & Porter, 390; Preston v. Surgoine, Peck's Tenn. Rep. 72; Drake v. Collins, 5 Howard's Mississippi Reports; Opinion of Chancellor Kent, in Jackson v. DeLancy, 13 Johns. Rep. 537; and the principle seems to be recognized in the case of _____ v. _____, 13 Peters, 15, 16. The court, in the case of Speer v. Sample, 4 Watts's Rep. 367, reviewed all the English and American cases upon the subject. The opinion there delivered is not only a masterly exposition of the law, but is, as I think, unanswerable. All the objections that have been urged against the validity of such a sale are there met and conclusively refuted. The argument of the court is supported by the authorities referred to in the opinion so fully, that the point decided seems to be demonstrated.

The case of Collingworth v. Horn, decided by the Supreme Court of Alabama, 4 Stewart's Rep., although a case of personal property, in principle decides this question. The court there decide, that in regard to personalty, the delivery of the execution creates the lien, and that if an execution is issued in the lifetime of the party, the lien is created, and the property thus bound may be sold under a subsequent execution, without revival against the executors, provided the executions have been regularly and successively issued, so as to continue the lien upon the property. In that case, the execution under which the property was sold issued and was tested after the death of the judgment debtor, but the sale under it related to the lien acquired by the first execution; hence, there was no necessity to issue a scire facias. If the judgment creates the lien, and if a sale made under it relates to the judgment, as it unquestionably does, the principle which was asserted in ...

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