Morsell Et Al v. First National Bank

• Decision Date: 01 October 1875
• Parties: MORSELL ET AL. v. FIRST NATIONAL BANK
• Court: U.S. Supreme Court

91 U.S. 357

23 L.Ed. 436

MORSELL ET AL. v. FIRST NATIONAL BANK.

October Term, 1875

APPEAL from the Supreme Court of the District of Columbia.

The facts are stated in the opinion of the court.

Mr. J. J. Johnson and Mr. R. K. Elliot for the appellants.

Mr. Enoch Totten, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

The question presented for our determination in this case is, whether a judgment at law is a lien upon real estate in the city of Washington, which, before the judgment was rendered, had been conveyed to trustees with a power of sale to secure the payment of the debts of the grantor described in the deed of trust.

The facts, so far as it is necessary to state them, are few and simple:——

On the 4th of November, 1867, the appellant, Morsell, executed a deed of trust to Flodoardo Howard to secure the payment of certain promissory notes held by the cestuis que trust, as set forth in the deed.

On the 21st of October, 1869, Morsell executed a like deed to Frederick W. Jones and William R. Woodward to secure the payment to the Co-operative Building and Deposit Association of the sum of $3,050 and future advances.

On the 24th of January, 1871, the appellee, the First National Bank of Washington, recovered a judgment against Morsell for $800, with interest from the 17th of May, 1869, and costs. Execution was issued upon this judgment, and returned nulla bona.

On the 10th of February, 1871, Means, Skinner, & Co. recovered a judgment against Morsell for $267.68, with interest as specified, and costs. Execution was returned nulla bona also upon this judgment.

On the 1st of March, 1871, Morsell executed to Frederick W. Jones and Joseph R. Edson another deed to secure the payment to the association above mentioned of the sum of $1,060 and future advances.

All these deeds were of the same premises; to wit, lot No. 44, in reservation No. 10, in the city of Washington.

Advances were made to Morsell by the association named from time to time, after the execution of the deed of trust of the 21st of October, 1869, to the amount, in the aggregate, of $2,950. The latest advance was one of $500, made on the 11th of January, 1871. The entire amount claimed to be secured by this deed was, therefore, $6,000.

The amount secured to the association by the deed of the 1st of March, 1871, was $1,500. The latest advance under this deed was made on the 27th of April, 1871. There is no controversy as to these particulars.

On the 22d of September, 1871, the bank, in behalf of itself and such other judgment creditors of Morsell as might choose to come in and be made parties, filed this bill. It was subsequently amended in the prayer. It brought the proper parties before the court, and prayed that the premises described in the deeds might be ordered to be sold, the proceeds be brought into court, and the fund distributed according to the rights of the parties.

Means, Skinner, & Co., by a petition, came in under this bill. The premises were sold pursuant to a decree, and yielded, after deducting costs and charges, the sum of $8,235.22 for distribution. The fund was held subject to the further order of the court. No question was made as to the preference claimed for the amount due to the cestuis que trust under the deed to Howard. But the balance left after discharging that liability was insufficient to pay the amount due to the association, laying the judgments out of view. Hence a controversy arose between the association and the judgment creditors, each party claiming priority of payment out of the fund. The auditor of the court, to whom the case was referred, reported in favor of the association. The other parties excepted. The court in general term held that the association was entitled to priority to the extent of $6,000, the amount secured by the deed of trust of the 21st of October, 1869; and that the judgments were to be next in the order of payment, both being prior in date to the last deed of trust. This left nothing applicable to the debt secured by the latter. The association thereupon removed the case by appeal to this court.

The 'Act concerning the District of Columbia,' of the 27th of February, 1801, 2 Stat. 103, declared, 'That the laws of the State of Maryland, as they now exist, shall be and continue in force in that part of said District which was ceded by that State to the United States and by them accepted as aforesaid.'

A part of the laws so adopted was the common law. Van Ness v. Hyatt, 13 Pet. 298. It was well settled in the English jurisprudence, that, according to the common law, no equitable interest in property of any kind was lible to execution. Scott v. Schooley, 8 East, 467; Metcalf v. Schooley, 5 Bos. & Pul. 461; Lyster v. Dolland, 1 Ves. Jr. 431.

Judgments by the common law were not liens upon real estate. The lien arose from the power to issue a writ of elegit. That power was given by the statute of Westminster. C. 18, 13 Ed. I. The right to extend the land fixed the lien upon it. Massingal v. Downs, 7 How. 765; Shrew v. Jones, 2 McLean, 80; United States v. Morrison, 4 Pet. 136; United States v. Wooster, 2 Brock. 252; Ridge v. Prather, 1 Blackf. 401.

If the judgment debtor died after the elegit was executed upon his lands, and before the judgment was satisfied, a court of equity, upon being applied to, would decree a sale of the land upon which it had been executed, and payment of the judgment out of the proceeds. Stillman v. Ashdown, 1 Atk. 607; Tyndal v. Warre, 3 Jac. 212. The same principle was adopted by Lord Redesdale into the equity...