Thomas Burton, Appellant v. William Smith and Others, Appellees

• Decision Date: 01 January 1839
• Citation: 38 U.S. 464,10 L.Ed. 248,13 Pet. 464
• Parties: THOMAS O. BURTON, APPELLANT, v. WILLIAM L. SMITH AND OTHERS, APPELLEES
• Court: U.S. Supreme Court

38 U.S. 464

13 Pet. 464

10 L.Ed. 248

THOMAS O. BURTON, APPELLANT, v. WILLIAM L. SMITH AND OTHERS, APPELLEES.

January Term, 1839

APPEAL from the Circuit Court of the United States for the eastern district of Virginia.

The case, as stated in the opinion of the Court, was as follows:

'In the month of June, 1827, Smith and Kennedy obtained a judgment in the Circuit Court, against Reuben Burton, for $1348 75, with interest from the 14th of October, 1823, and costs. On this judgment an elegit was issued, on the 31st of December, 1827. On the 12th of August, in the same year, Reuben Burton, by deed conveyed his real estate to certain trustees, in trust, to sell the same for the benefit of his creditors; amongst many other debts enumerated in the deed, the judgment already mentioned, recovered by Smith and Kennedy, was included.

These last mentioned creditors, the appellees, never assented to, or accepted anything under the trust deed. Burton having died; the only trustee who accepted the trust, on the 21st of December, 1829, sold, under the deed, all the estate, both real and personal, conveyed by it; and at that sale, Sarah Burton, by her agent, purchased, at the price of $1000, the interest of Reuben Burton, that is, two-fifth parts of a certain tract of land called Springfield, supposed to contain about five hundred acres, and also his interest in certain coal pits on the same tract. The character of Reuben Burton's interest in the Springfield tract of land, as appears from the record, was that of a reversion in fee after an estate for life. And the character of his interest in the coal pits, as appears from an agreement in the record, was this: The heirs of Daniel Burton, of whom Reuben Burton was one, were to have, during the widow's life, the right of occupying, using, and working the coalpits, and the right and power of sinking shafts, and searching for coal on any part of the land, except the yard, &c., paying to the widow, during her life, the yearly sum of $200, for her dower interest. The same agreement will show his interest in a mineral spring included in the decree.

After the death of Reuben Burton, the appellees, finding that there was no personal estate to satisfy their debt, in September, 1834, filed their bill to enforce the lien created by their judgment; making, amongst others, Sarah Burton a defendant, as purchaser of the interest of Reuben Burton before described, in the Springfield tract of land and coal pits.

She answered, saying, that the property conveyed to her was not purchased for her own benefit, but for the benefit of her son Thomas O. Burton, the appellant. She insisted, in her answer, that the appellees had no right to enforce their judgment, as more than five years has elapsed since the death of Reuben Burton. She denied that the judgment created any lien on the property purchased by her, which was valid against her. She insisted that the appellees were entitled to no relief in equity; and that, at all events, a sale should not be decreed.

An amended bill was thereupon filed, making Thomas O. Burton a defendant. He filed an answer, insisting on the grounds taken by Sarah Burton.

The cause coming on to be heard, the Court held the reversionary interest of Reuben Burton in the Springfield tract of land, and his interest in the right of occupying and working the coal pits thereon, and, also, his interest in the mineral spring thereon, with the twenty-five acres of land adjoining thereto, liable to the appellees' judgment; and decreed a moiety of Reuben Burton's interest to be sold.' From this decree an appeal was taken.'

The case was submitted to the Court on printed arguments, by Mr. Lyons, for the appellant; and by Mr. Robinson for the appellees.

The argument of Mr. Lyons was as follows:

The appellant insists that the decree of the Circuit Court is erroneous, and ought to be reversed. 1st, Because the judgment in favour of the appellees against Reuben Burton, gave no lien upon the interest or share of Reuben Burton in the Springfield coal property, which was purchased by Sarah Burton for the appellant; and which, by the decree of the Circuit Court, was adjudged to be sold.

By the common law a judgment conferred no lien upon lands. That lien is the result entirely of the power to extend the lands, and is therefore a statutory power conferred by the act commonly called the statute of Westminster. This position is known to be familiar to the Court; but if authority is desired for it, it may be found in the opinion of Lord Hardwicke, in the case of Stileman vs. Ashdown, 2 Atkyns' Reports, 608, and every subsequent decision upon that subject; and especially in the opinion of the late Chief Justice of the United States, in the case of the Bank of the United States vs. Winston et al., 2 Brockenbrough's Reports, 252; which is quoted, not only because of the high character of the authority, and the just weight which will be attached to it, but because of the distinct and emphatic manner in which the position is laid down, and the rights of the party claiming under the judgment are, in a Court of equity, limited and confined to the right and power conferred by the judgment. The first inquiry then is, could the appellees have extended the interest before mentioned, of Reuben Burton in the Springfield coal lands? It is submitted that they could not. It will be perceived by the Court, that the entire tract of land upon which the Springfield pits are, with the houses, &c., constituted the mansion establishment of Daniel Burton, the father of Reuben, who died intestate, leaving a widow, Sarah Burton, and several children. Until dower was assigned the widow she had the right to retain the mansion establishment, and to derive her maintenance from it. While it remained in that condition, therefore, it is assumed that no elegit could be levied upon it; because if an elegit issue against one child, so might one issue against each child; and thus the whole would be taken and put into the possession of the creditors, and the widow expelled, and kept out, until by her writ she was restored. The children could not lawfully expel the widow; the creditors of the children, standing in their place, could not of course do it. If all could not do it, surely one could not. The lands in the hands of the widow before assignment of dower, could not therefore be taken under an elegit. No assignment of dower has taken place, unless the Court shall regard the agreement entered into by Mrs. Burton and her children (exhibited by defendants,) as such assignment. Is the condition of the appellees aided by that paper? It is submitted that so far from it, the condition is made worse. If that agreement had not been entered into, any creditor of Reuben Burton might have filed his bill against the widow and heirs, and compelled an assignment of dower, which being made, he might have levied his elegit upon the share of Reuben Burton; but this agreement deprives the appellees of that power, because it is founded upon a good as well as valuable consideration—was entered into before any right existed in the appellees—and assigns to the widow, for her dower, the entire tract of land, except the mineral spring, with twenty-five acres, and the right to work the coal mines, and charges them with an annuity of two hundred dollars per annum to the widow. The rights of the appellees, in respect to this property, are manifestly less than if the agreement had not been entered into. Could Reuben Burton's interest in the coal mines and spring, with the twenty-five acres, have been taken under an elegit, after the execution of the said agreement?

It is respectfully submitted that it could not. By the inquisition under the elegit the property is placed in the hands of the creditor, who takes all the profits of it, paying therefor a fair annual rent, to be applied as a credit against his claim; and of the portion thus placed in his hands no one has a right to share the profits with him. If this may be done in favour of the creditor of one child, it may be done for the creditors of each; and if two elegits issue at the same time against the same defendant, they take not a moiety but the whole: and thus the widow who has renounced her claim to dower in the other lands of her husband, and thereby suffered them to pass away from her, is to be again ousted and deprived of the annuity, in consideration of which, in great part, she has made her relinquishment under an agreement with the heirs, which is obligatory upon them, and as effectual to charge the property with the rights of the doweress as any which could have been resorted to. It is not necessary to the validity of an assignment of dower that it should be registered: i. e. recorded as a conveyance. If it is, however, and this agreement is to be affected by the failure to register, (although as to one of the parties it was fully proved, being acknowledged, and should have been recorded), then it cannot diminish the rights of the widow, and the argument upon the hypothesis that no assignment has been made, applies.

If land is subject to a trust for the use of a grantor and another, e. g. to raise an annuity, and a judgment is rendered against the grantor, the land cannot be taken by elegit. Doe on demise of Hull vs. Green Hill, 4 Barnwell and Alderson, 684. In the present case the land was subject to a trust, and one of the uses charged upon it was to raise an annuity. The agreement here being a case of dower, was as valid to charge it as any form of conveyance, and so to protect it; the reason is the same in each the right of the annuitant.

What, then, it may be asked, were the rights of the appellees in reference to this property, when they obtained their judgment? They were two-fold—either to take Reuben Burton under a ca. sa., and thus acquire his rights whatever they were in the subject, and by express provision of the execution law, the right to sell them; or upon the...