United States v. Kendall

• Decision Date: 24 February 1920
• Docket Number: 8305,8955.
• Citation: 263 F. 126
• Parties: UNITED STATES v. KENDALL.
• Court: U.S. District Court — Eastern District of Louisiana

263 F. 126

UNITED STATES v. KENDALL.

Nos. 8305, 8955.

United States District Court, E.D. Louisiana, New Orleans Division.

February 24, 1920

Solomon Wolff, of New Orleans, La., for plaintiff in rule.

J. D Dresner, Asst. U.S. Atty., of New Orleans, La.

T. M Logan Bruns, of New Orleans, La., amicus curiae.

FOSTER District Judge.

This is a rule by Julius D. Tchopik on the clerk of the District Court, contradictorily with the United States, through the United States attorney, to show cause why two judgments in favor of the United States against Peter F. Kendall should not be declared inoperative as liens on certain property at one time owned by Kendall.

On February 1, 1878, and on May 14, 1881, the United States obtained judgments against Kendall for $1,430 and $10,304.42 respectively. It is settled that judgments of federal courts at law are not liens independent of statute, as the mere entry of judgment created no lien at common law. At that time the statute of the United States controlling the lien of a judgment was the Act of July 4, 1840, c. 43, Sec. 4, carried into the Revised Statutes as section 967 (Comp. St. Sec 1608), reading as follows:

'Judgments and decrees rendered in a Circuit or District Court, within any state, shall cease to be liens on real estate or chattels real, in the same manner and at like periods as judgments and decrees of the courts of such state cease, by law, to be liens thereon.'

Construing this, the Supreme Court held that judgments of the Circuit and District Courts became liens in the same manner as judgments of the state courts. Cooke v. Avery, 147 U.S. 375, 13 Sup.Ct. 340, 37 L.Ed. 209.

The law of Louisiana then in force, and substantially the same as now, required judgments of the state courts to be recorded in the office of the recorder of mortgages in the parish of Orleans and in the offices of the clerks of court as ex officio recorders of mortgages in other parts of the state, in order to become liens, or judicial mortgages, as they are termed in Louisiana. Civ. Code, arts. 3321, 3322, and 3388; Code of Practice, art. 545. As the judgments in favor of the United States were not recorded in the state office, they did not at that time become liens on any property that might have been owned by Kendall. U.S. v. Honor No. 1657, U.S. Circuit Court of Appeals, 5th Circuit (unreported).

Thereafter Congress passed Act Aug. 1, 1888, 25 Stat. 357 (Comp. St. Secs. 1606, 1607). The act reads as follows:

Section 1: 'That judgments and decrees rendered in a Circuit or District Court of the United States within any state shall be liens on property throughout such state in the same manner and to the same extent and under the same conditions only as if such judgments and decrees had been rendered by a court of general jurisdiction of such state: Provided, that whenever the laws of any state require a judgment or decree of a state court to be registered, recorded, docketed, indexed, or any other thing to be done, in a particular manner, or in a certain office or county, or parish in the state of Louisiana, before a lien shall attach, this act shall be applicable therein whenever and only whenever the laws of such state shall authorize the judgments and decrees of the United States courts to be registered, recorded, docketed, indexed, or otherwise conformed to the rules and requirements relating to the judgments and decrees of the courts of the state.'

Section 2: 'That the clerks of the several courts of the United States shall prepare and keep in their respective offices complete and convenient indices and cross-indices of the judgment records of said courts, and such indices and records shall at all times be open to the inspection and examination of the public.'

Section 3: 'Nothing herein shall be construed to require the docketing of a judgment or decree of a United States court, or the filing of a transcript thereof, in any state office within the same county, or parish in the state of Louisiana, in which the judgment or decree is rendered, in order that such judgment or decree may be a lien on any property within such county.'

Section 3 was re-enacted by Act March 2, 1895, c. 180, 28 Stat. 814, but without material change or adding anything to the law. It is unnecessary to attempt to construe the proviso of section 1, as the law of Louisiana, as interpreted by the Supreme Court at that time, provided for the registration of federal judgments with like effect as state judgments. Adams v. Coons, 37 La.Ann. 305, decided April, 1885. Subsequently the Louisiana Legislature adopted Act No. 133 of July 5, 1916, giving to federal judgments the same effect as state judgments when recorded; but it was perhaps unnecessary, in view of the decision in Adams v. Coons, supra.

Upon the passage of the act of 1888 the clerks of the Circuit and District Courts for the Eastern District of Louisiana established judgment record books, with the proper indices and cross-indices, as required by the act, and the two judgments against Kendall were properly recorded therein.

On January 17, 1901, Kendall acquired a certain lot of ground and improvements in the city of New Orleans, which of course is coextensive with the parish of Orleans. By article 3328 of the Civil Code a judicial mortgage, or lien, attaches to after-acquired real property of the judgment debtor.

On March 17, 1905, Kendall sold the said property to Peter J Untereiner, and later, on July 21, 1905, Untereiner sold it to Julius D. Tchopik, the plaintiff in rule herein. On August 17, 1912 (37 Stat. 311), Congress repealed section 3 of the act of 1888, the repeal to...