Freeman v. Dawson

• Decision Date: 28 January 1884
• Citation: 110 U.S. 264,28 L.Ed. 141,4 S.Ct. 94
• Parties: FREEMAN, Trustee, v. DAWSON. 1
• Court: U.S. Supreme Court

110 U.S. 264

4 S.Ct. 94

28 L.Ed. 141

FREEMAN, Trustee, v. DAWSON.¹

January 28, 1884.

S. P. Walker and

C. W. Metcalf, for appellant.

D. H. Poston and W. K. Poston, for appellee.

GRAY, J.

This is an appeal by the grantee in a deed of trust, from a decree of the circuit court of the United States for the West- ern district of Tennessee, in favor of a judgment creditor of the grantor. The undisputed facts of the case, as shown by the pleadings and the documentary evidence, are as follows: In January, 1878, the owners of two lots of land in the city of Memphis county of Shelby, and State of Tennessee, executed to R. C. Daniel a lease, thereof for the term of six years, at a certain rent, and with a provision that any improvements or machinery made or erected by the lessee might be removed by him at the end of the lease. Steers and Morse, under a contract with Daniel, erected upon the land a cotton-press, engine, boilers, and machinery; and on August 8, 1878, filed the original bill in this case against him, in the chancery court of Shelby county, to enforce a mechanic's lien, under the statutes of Tennessee, upon his leasehold interest in the land, and upon his interest in the press and machinery, and obtained a writ of attachment against the same. On June 6, 1878, A. H. H. Dawson duly recovered against Daniel two judgments at law, upon default, in the circuit court of the United States, amounting together to the sum of $5,629.91. At the same term, on June 13th, an application was made by Daniel to vacate each of those judgments, and was 'continued until the next term of the court, without prejudice to either party.' On July 5th writs of fieri facias upon both the judgments were issued by the clerk and delivered to the marshal. On July 9th the marshal, as appears by his indorsement thereon, levied each of these executions upon Daniel's interest in the land, (particularly described,) and upon all his interest 'in and to the chattel property in, about and upon the foregoing described lots and parcels of land, consisting of a Morse improved Tyler cotton compress, with engines, boilers, machinery, etc., with all appurtenances thereto belonging;' and afterwards published and posted, and served upon Daniel, as required by law, notices of a sale to be made on August 8th in pursuance of the levy. On August 5th the circuit judge sent to the clerk the following letter:

'KNOXVILLE, TENNESSEE, August 5, 1878.

'MY DEAR SIR: I have been furnished by Messrs. Gantt & Patterson, attorneys for Mr. R. C. Daniel, with certified copies of the record in the suits of A. H. H. Dawson v. Daniel, pending in your court. From this, as I construe it, judgments by default were rendered at the last term, and then an application made to set aside said judgments and permit defendant to plead, which application was continued to next term of the court. This leaves these cases pending and undetermined. Yet Messrs. Gantt & Patterson, for their client, represent that executions have been issued and levied on Daniel's property. If this is so, the executions are without authority, and ought to be called in as improvidently issued. There is no final judgment on which they can rest. My suggestion is that you issue a paper to the marshal reciting the fact that executions were issued without authority, and request him to return the same unexecuted.

'I am, very truly, etc.,

JNO. BAXTER.

'BELL W. ETHERIDGE, Esq.

'U. S. Circuit Clerk, Memphis, Tenn.'

On August 7th the clerk delivered to the marshal a paper headed 'Circuit Court of the United States for the Western District of Tennessee,' with the names of the cases and their numbers on the docket, and the rest of which was as follows:

'To the United States Marshal, Western District of Tennessee:

'In accordance with the instructions of Judge BAXTER, communicated by letter, a copy of which is hereto attached, I notify you that the executions in the two above-named cases were issued without authority, and request you to return the same unexecuted. You will therefore act accordingly.

'Witness my signature, and the seal of said court, this, the seventh day of August, 1878.

[Seal.]

'BELL W. ETHERIDGE, Clerk.'

The marshal's return upon each execution, after stating the levy and notice, concluded as follows: 'And on seventeenth August, 1878, in obedience to an order of court issued by Hon. JOHN BAXTER, I return this writ without further proceedings.' The coroner of Shelby county thereupon, on the same day, took possession of the property under the writ of attachment issued upon the bill in equity of Steers and Morse, On November 22d Daniel executed a deed, which was recorded on the next day, of his interest in the leasehold, and in the cotton-press, with its engine, boiler, machinery, and appurtenances, to John J. Freeman, in trust to secure, and to sell for the payment of, debts due from Daniel to verious persons, in sums of $6,000 or less, and amounting in all to the sum of $18,370, for moneys borrowed by Daniel to pay for the leasehold and fixtures. The circuit court, at a regular term, on January 6, 1879, denied the applications of Daniel to vacate the judgments at law, and on February 8th granted motions of Dawson for writs of venditioni exponas. On Febuary 10th such writs were issued accordingly, which recited that 'said writs of fieri facias have been returned without any sale of the property levied on as aforesaid, which levies this court now adjudges as still in full force, and unabandoned by the marshal, and the property so levied on is still in his possession by virtue of said levies.' The opinions delivered on the applications and motions are reported in Dawson v. Daniel, 2 Flippin, 301, 305. The returns subsequently made by the marshal upon the writs of venditioni exponas show that, upon receiving them, he want upon the land, and found the cotton-press being operated by and under the control of Charles Yerger, who claimed to be in possession, in behalf of the sheriff and coroner, under an order of the chancery court of Shelby county; that he exhibited his writs of venditioni exponas, and demanded of Yerger possession of the property, which was refused; that he was thereupon directed by the attorneys for Dawson to proceed under those writs to a sale of the property, and gave notice to Daniel of such a sale to take place on March 11th; and that on February 12th those attorneys 'directed that all proceedings hereunder be suspended until further orders in the premises.' On February 13th Steers and Morse filed in the suit in equity an amended and supplemental bill against Dawson, Freeman trustee, and the beneficiaries under the trust deed; and on February 15th removed that suit into the circuit court of the United States, and there moved for a temporary injunction to restrain Dawson and the marshal from further proceeding against the property under the judgments and executions at law. On March 18th that court issued such an injunction, and ordered, with the consent of all the parties, 'that the custody and possession by the marshal of said property shall remain as it is, undisturbed, and that for the preservation of the property he may employ a day and night watchman for the same, but without in any manner affecting the rights or claim of any party hereto; and nothing herein contained shall be held in any manner to affect or release any lien that the defendant Dawson claims to have acquired under his said judgments, executions, and liens.' On June 2d the marshal returned the writs of venditioni exponas, 'without further proceedings.' On June 13, 1879, after answers...