Miller v. Sherry

• Decision Date: 01 December 1864
• Citation: 69 U.S. 237,17 L.Ed. 827,2 Wall. 237
• Parties: MILLER v. SHERRY
• Court: U.S. Supreme Court

69 U.S. 237

17 L.Ed. 827

2 Wall. 237

MILLER v. SHERRY.

December Term, 1864

SHERRY had obtained a judgment in ejectment for some lots and a house on them, in Illinois, against Miller, in the Circuit Court for the Northern District of that State, and this was a writ of error to reverse it.

It appeared, on the trial below, that W. & W. Lyon had obtained a judgment against Miller in October, 1858, and sued out a fi. fa.; on which nulla bona was returned. In February, 1859, they filed a creditor's bill against the same Miller, his wife, and one Williams (son-in-law of Miller), charging that Miller had, on the 6th of April, 1857, conveyed the premises now in controversy—describing them, and describing them, moreover, as lots, which at the time of the conveyance, and at the time of the bill filed, Miller occupied, and, with his family, resided on—to this Williams, to defraud creditors; and praying that the deed should be set aside, the premises sold, and his debt paid out of the proceeds. Miller and Williams answered the bill. In June, 1860, the cause was heard, the deed set aside as fraudulent, and the master in chancery for the court ordered to sell the premises, and to execute to the purchaser good and sufficient deeds of conveyance, and that the sale so made shall bar and divest all, and all manner of interest or right, which the said Miller or any of the defendants might have in the property, or in any part of it. The master accordingly did sell, for $1867, and by deed convey, in September, 1860, the premises to one Bushnell, who conveyed to Sherry, plaintiff below

It further appeared that a firm named Mills & Bliss had also obtained a judgment against Miller in the same court, in October, 1857,—that is to say, a year before the judgment of W. & W. Lyon,—and that on a fi. fa. issued upon it, nulla bona was also returned. In April, 1858, Mills & Bliss filed a creditor's bill against Miller and a certain Richardson; Williams, the son-in-law of Miller, and person to whom, by deed of 6th of April, 1857, he had conveyed the house and lots in controversy, not being made a party. This bill—which, it will be noted, was filed several months before the bill of W. & W. Lyon,—charged a variety of frauds in general terms, against Miller, and particularly, that he had 'made a sale of his stock of goods and merchandise, notes and accounts, at Ottawa aforesaid, and of great value, to this defendant, Richardson.' It also charged that Miller was, at the time when the judgment was obtained, 'and now is, the owner, or in some way or manner beneficially interested in some real estate in this, or some other State or Territory, or some chattels real of some name or kind, or some contract or agreement relating to some real estate, or the rents, issues, and profits of some real estate.' But the bill, unlike that of W. & W. Lyon, contained no reference to the specific property, the subject of the ejectment. And there was no reference to real estate in the charging part of the bill, other than the general one of 'some real estate,' &c., as above given. There was a special prayer that the sale to Richardson should be declared void, and that the property or its avails should be applied to the payment of the judgment of Mills & Bliss.

The matter being referred to a master, Miller, was examined before him. He, Miller, then disclosed the fact of the conveyance of the house and lots to Williams, his son-in-law, by the deed of April, 1857. In March, 1860, the master filed his report containing the evidence just stated. Upon this, Mills & Bliss (December, 1860), filed an amendment to their original bill, making Williams a party; process being issued against him, but the process not being served. This amendment charged that the deed of Miller to Williams, of April, 1857, was fraudulent and void. Williams did not answer, and the bill as to him was dismissed. A receiver was appointed July 13th, 1861, and Miller was ordered to convey to him, which he did on the 26th of that same month. The deed embraced, by description, the premises in controversy, but they were conveyed, subject to the rights which Miller might have in them 'under the homestead law of Illinois.'

Pursuant to an order of court, the receiver, on the 23d of August, 1861, sold and conveyed the property for $500 to one Benedict; the deed, like Miller's own to the receiver, being subject to the reservation of the 'homestead right.'

In reference to this reservation, it is necessary here to state, that a statute of Illinois enacts that 'the lot of ground and the buildings thereon, occupied as a residence, and owned by a debtor being a householder, and having a family,' to the value of one thousand dollars, 'shall be exempt from levy and forced sale, under any process or order from any court of law or equity in this State;' and it further declares, that 'no release or waiver of such exemption shall be valid, unless the same shall be in writing, subscribed by such householder, and his wife, if he have one, and acknowledged in the same manner as conveyances of real estate are by law required to be acknowledged, it being the object of this act to require, in all cases, the signature and acknowledgment of the wife as conditions to the alienation of the homestead.'

At the time of the ejectment below, Miller was living with his wife and children in a house on the premises sold; which were worth about $2700.

Upon these facts, the counsel of the plaintiff below asked the court to charge the jury:

1. That Mills & Bliss, by filing their bill against Miller, and service of process, obtained a lien upon all the property and effects of Miller; which lien had, by the decree and sale of the receiver, passed into a title in Benedict, which title related back to the service of process, and had become paramount to the title of the plaintiff.

2. That the defendant was entitled to a homestead right under the laws of the State of Illinois, in such cases made and provided, which he could set up as a defence in this case.

The court gave neither instruction, but gave instructions in substance the reverse of them. Its action herein was the question before this court.

Mr. E. S. Smith, for the plaintiff in error:

1. A plaintiff in ejectment recovers, of course, on the strength of his own title, and that title, in the Federal court, must be a legal one. Now was the legal title in Sherry, assignee of Bushnell, under the proceeding of the Lyons?

The sale by the master, under the bill of the Lyons, did not convey the legal title to Bushnell. Miller did not join in that deed. He was not even ordered or asked to. It is a deed by the master. Now, a court of equity can only compel the party to convey the legal title, and upon a sale thereby give it to the purchaser. The power of such a court to set aside a legal title for fraud, does not confer power to decree the legal title in another by operation of the decree. The title must be conveyed, and if the party refuse, the court can order that a commissioner convey the legal title for the obstinate party, so that the title will be perfected on the sale by the receiver or master. In the great case of Penn v. Lord Baltimore,¹ it is said, that courts of equity act upon the parties by decrees, and not upon the property, except through the party; that is, in all suits in equity the primary decree is in personam, and not in rem. In our own country we have often declared the same thing. In a Mississippi case,² the court says: 'The chancery court cannot, by its decree, divest the legal title to land out of one party and vest it in another. It is necessary, in such cases, to appoint a commissioner to convey.' So in Kentucky,³ the court held that 'the chancellor may decide on the equitable right to have a transfer of the legal right of entry, and may enforce a compliance with the decree by compelling a conveyance; but until the conveyance is actually made, the right of entry remains as it was before the decree.'⁴ So in North Carolina, the court says, that a decree in equity cannot, of itself, divest a title at law to land, but can only compel the person who has the title and who is mentioned in the decree, to convey. So in Ohio,⁵ it was held that a decree does not, of itself, pass a title, but that a deed has to be actually made conveying the title, so that a sale, by order of the court, would convey the legal title. The same principle is enunciated in a New York case,⁶ where Gardner, J., says: 'In all cases of fraudulent trusts, the court may, in its discretion, direct a sale by a master, and compel the debtor and trustee to unite in the conveyance to the purchaser, or it may order an assignment to a receiver, as was done in this case, to the end that the property may be disposed of under the special instructions of the chancellor; or the fraudulent conveyance may be annulled, and the creditor permitted to proceed to a sale upon his execution.' We need not cite additional authorities. Independently of merits, therefore, there is an outstanding legal title, which technically barred the right to sue in ejectment below.

But, on merits, the plaintiff in the ejectment had no case. Benedict was actual owner. The bill of Mills & Bliss, under which he claims, was filed in April, 1858; that of the Lyons some months afterwards, to wit, in the month of February, 1859. Both bills were what are called creditors' bills; that is to say, bills in equity after judgment for a sum certain had been obtained at law, after execution had issued on such judgment, and after a return of nulla bona had been made on that judgment. Now, of such bills in chancery,—though, of course, not of ordinary chancery bills,—it is a property that on service of process they operate as liens from the time of their being filed. And well they may. They rest on and recite a prior solemn judgment at law unsatisfied. They declare a previous debt, of which the party stands 'convict' of public record. They are, in...