Bock v. Perkins

• Decision Date: 13 April 1891
• Citation: 35 L.Ed. 314,11 S.Ct. 677,139 U.S. 628
• Parties: BOCK v. PERKINS et al
• Court: U.S. Supreme Court

139 U.S. 628

11 S.Ct. 677

35 L.Ed. 314

BOCK v. PERKINS et al.

April 13, 1891.

H. B. Fouke and D. E. Lyon, for plaintiff in error.

D. B. Henderson, F. B. Daniels, and Louis G. Hurd, for defendants in error.

HARLAN, J.

*This action involves the title to a certain stock of goods seized under attachments sued out against the property of H. P. Lane from the circuit court of the United States for the northern district of Iowa, and directed to the marshal of that district for execution. The goods, when seized, were in the possession of the plaintiff in error, who claimed the right to hold them under an assignment made to him by Lane before the attachments were issued. Bock seeks to recover from Perkins, the marshal, and from Thrift and Hopkins, his deputies, damages in the sum of $10,000 for their seizure. The defense was that the goods were the property of Lane at the time of the seizure, and therefore were liable to be taken under the attachments. Upon the petition of the defendants, accompanied by a proper bond, and an affidavit setting forth the nature of the defense, the case was removed into the court below for trial as one arising under the laws of the United States. The plaintiff moved to remand it to the state court. The motion was denied, and by direction of the court the jury returned a verdict for the defendants. A judgment in their favor was accordingly entered. Bock v. Perkins, 28 Fed. Rep. 123.

Thecou rt below properly retained the case for trial. Every marshal of the United States, as well as his deputy, must take an oath or affirmation that he will faithfully execute all lawful precepts directed to him, and in all things well and truly perform the duties of his office. The marshal must also give bond, with sureties, for the faithful performance of the duties of his office by himself and deputies. And marshals and their deputies have, in the respective states, the same powers in executing the laws of the United States as sheriffs and their deputies have in executing the laws of such states. Rev. St. §§ 782, 783, 788. A case, therefore, depending upon the inquiry whether a marshal or his deputy has rightfully executed a lawful precept directed to the former from a court of the United States is one arising under the laws of the United States; for, as this court has said, 'cases arising under the laws of the United States are such as grow out of the legislation of congress, whether they constitute the right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are asserted.' Tennessee v. Davis, 100 U. S. 257, 264; Railroad Co. v. Mississippi, 102 U. S. 135, 141. If the goods in question, when seized, were the property of Lane, the marshal and his deputies were in the discharge of duties imposed upon them by the laws of the United States; and for any failure in that regard he would be liable to suit by any one thereby injured. Rev. St. § 784. This case was therefore one arising under the laws of the United States, and removable from the state court. Feibelman v. Packard, 109 U. S. 421, 423, 3 Sup. Ct. Rep. 289; Bachrack v. Norton, 132 U. S. 337, 10 Sup. Ct. Rep. 106; Reagan v. Aiken, ante, 283, (present term;) Houser v. Clayton, 3 Woods, 273; Ellis v. Norton, 16 Fed. Rep. 4.

No different doctrine was announced in Buck v. Colbath, 3 Wall. 334. On the contrary, that case sustains the view we have just expressed. Colbath sued Buck in a state court in trespass for taking his goods, the latter pleading simply that he was marshal of the United States, and had seized the goods under an attachment against the property of certain parties named therein, but not averring that the goods belonged to the defendants named in the writ. This court, upon error to the highest court of the state, held that the marshal was guilty of trespass in levying upon the property of one against whom the writ did not run, and could be sued therefor in a state court,—the mere fact that the writ issued from a federal court constituting no defense. The judgment in that case against the marshal was reviewed here under the act of congress authorizing such review in cases where a party specially claimed the protection of an authority exercised under the United States and the decision withheld the protection so claimed. The decision sustains the proposition that where a marshal, being sued in trespass in a state court for taking property under a writ of attachment to him directed, defends upon the ground that the property attached belonged to the defendant named in the writ, the case is one arising under the laws of the United States, and therefore removable.

We come now to the principal question in the case. The plaintiff claims title to the goods attached under an instrument of writing, executed on the day it bears date, as follows:

'This indenture, made the 20th day of November, A. D. 1884, between Henry P. Lane, of New Albin, Allamakee county, and state of Iowa, of the first part, and Wm. O. Bock, of said county and state, of the second part:

'Whereas, the said Henry P. Lane is justly indebted in considerable sums of money, and has become unable to pay the same with punctuality or in full, and is now desirous of making a fair and equitable distribution of his property among all his creditors, now this indenture witnesseth that the said party of the first part, in consideration of the premises and of the sum of one dollar to him aid by the party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold, and assigned, and does hereby grant, convey, and assign, unto the said party of the second part and to his assigns, forever, all the lands and all the personal property of every name and nature whatsoever of the said party of the first part, more particularly enumerated and described in the schedule hereto annexed, marked 'Schedule A,' or intended so to be, upon the following trusts, viz.: To take possession of said lands and property, and sell said lands, unless otherwise directed by the circuit court of Allamakee county, state of Iowa, on notice published as in cases of sales of real estate on execution, and dispose of said personal property upon such terms as in his judgment may appear best, but not on credit, and hold the proceeds of sales of all said lands and personal property for distribution among all the creditors of said party of the first part, in accordance to such orders and directions as may from time to time be made by said circuit court, and shall, after final settlement and distribution be made, and all the reasonable expenses, rents, taxes, assessments, commissions, and allowances are paid, return any surplus there may be of the proceeds of the sales of the assigned property to the party of the first part or his assigns; and also to reconvey, reassign, to him or them any real or personal property remaining unsold. Schedule B, hereto annexed, contains, as near as I can state, a list of all my creditors, and the amount of their respective demands, and both of said Schedules A and B are hereby made part of this assignment. Witness my hand the day and year first above written. HENRY P. LANE.

'In presence of SAM'L H. KINNE.'

Bock, on the same day, accepted the trust created by this instrument, and agreed to execute its provisions.

Schedule A, annexed to and made part of the assignment, contained an inventory of certain real estate, and a list of the names of about 150 persons indebted to the assignor; but no mention was made in it of the stock of goods in question. It was verified by his oath to the effect that, according to the best of his knowledge, it contained a true statement and account of his estate, both real and personal. Schedule B, also annexed to and made part of the assignment, contained a list of the assignor's creditors, about 50 in number, with the amount of their respective demands. It was verified by Lane's oath to the effect that it contained a true list of all his creditors and the amount of their respective demands.

Lane was engaged in mercantile business at New Albin, Allamakee county, Iowa, when the assignment was made, and owned the goods alleged to have been wrongfully taken under the attachments. After the assignment was executed and acknowledged, Bock took possession of them. He caused an inventory to be made and put the assignment on record before the attachments were levied. At the time of the assignment he was in Lane's employment, and had charge of his mercantile business.

The court charged the jury that as the goods in question were not enumerated or described in the schedule annexed to and made part of the assignment, and could not by any construction of its clauses be included in it, the title did not pass to Bock, and they were rightfully attached as the property of Lane. It also held that the defendants were entitled to a verdict upon the further ground that, if the instrument were treated as a general assignment under the statutes of Iowa regulating assignments for the benefit of creditors, it was void because, when taken in connection with certain conveyances executed about the same time by the assignor for the benefit of his wife and wards,—all the instruments constituting, in the judgment of the court, one transaction,—it gave a preference to some creditors over others, in violation of the statute, and for that reason was void. Van Patten v. Burr, 52 Iowa, 518, 521, 3 N. W. Rep. 524.

Did Lane's toc k of goods pass to Bock by the assignment of November 20, 1884? If not, they were rightfully attached as his property. Although Lane, in the assignment, expressed his inability to pay his debts with punctuality or in full, as well as the desire to make a fair and equitable distribution of 'his property among all his creditors,' and although the first part of the granting clause embraces 'all the lands and all the personal property of every name and nature whatsoever' of the assignor, the property...