Smith v. Cockrill
| Citation | 73 U.S. 756,18 L.Ed. 973,6 Wall. 756 |
| Parties | SMITH v. COCKRILL |
| Decision Date | 01 December 1867 |
| Court | U.S. Supreme Court |
ERROR to the Circuit Court for the District of Kansas.
The suit was an action of ejectment by Cockrill against Smith, to recover the possession of several lots of land in the city of Leavenworth.
The plaintiff claimed title under a sale on a judgment against one Clark, recovered in a State court on the 4th of April, 1862. The sale took place on execution upon the judgment on the 23d of July, 1863, at which the plaintiff, Cockrill, became the purchaser, and received a deed from the sheriff of the lots in question.
The defendant, Smith, also claimed title under a sale on execution upon two judgments against Clark, recovered in the District Court of the United States—one on the 29th of May, 1861, the other on the next day of the same month. And the sale took place under the executions by the marshal on the 8th August, 1861, and Smith became the purchaser, and received a deed from the marshal for the same lots.
Both parties thus set up title under Clark; and as Smith, the defendant below, had the elder title, if there was nothing else in the case, he would have been entitled to recover.
It was objected, however, that the deed to him from the marshal under the sale was void, for the reason that it was not made in conformity with the code of civil procedure of Kansas, which requires an appraisement of the property levied on, and that it shall be sold on the execution for two-thirds of its appraised value.
It being admitted that the property was not thus appraisd , nor sold, the court below held that the sale was void, and that the marshal's deed conveyed no title to the purchaser. The correctness of this view raised the only question in the case.
Mr. T. A. Hendricks and Mr. R. Breckenridge, for the plaintiff in error; Messrs. Clough and Wheat, with an elaborate brief of Mr. Lysander B. Wheat, setting out the statutes and authorities bearing on the case—contra.
The State of Kansas was admitted into the Union by act of Congress on the 29th January, 1861, the fourth section of which provided, 'that from and after the admission of the State of Kansas, as heretofore provided, all the laws of the United States, which are not locally inapplicable, shall have the same force and effect within that State as in other States of the Union: and the said State is hereby constituted a judicial district,' &c.*
The act of 1828 provided, 'that the forms of mesne process, except the title, and the forms and modes of proceeding in suits...
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...The proceedings did not conform with Section 22-1534, R. S. There was no appraisement. Sections 89-2931-2932, 2933, R. S. 1931; Smith v. Cockrill, 18 L.Ed. 973; Maple Nelson, 31 Iowa 322; Gardner v. Sisk, 54 P. 506; Gantly v. Ewing, 11 L.Ed. 794; Commercial Bank v. Western Reserve Bank, 11 ......
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...uniformly held that the federal officer in the execution of process of this kind must conform strictly to the state law. In Smith v. Cockrell, 6 Wall., 756-759, the court of the United States held that the failure of a United States marshal, in selling property under execution in the state ......
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Tolbert v. State Bank of Paden
...40 Kan. 224, 19 P. 666; Gantly v. Ewing, 44 U.S. 707, 11 L. Ed. 794; Collier v. Stanbrough, 47 U.S. 14, 12 L. Ed. 324; Smith v. Cockrill, 73 U.S. 756, 18 L. Ed. 973. ¶9 In the case of Reynolds v. Quaely, 18 Kan. 361, it is stated in the syllabus: "Where appraisement is waived, the defendant......
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Tolbert v. State Bank of Paden
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