Burton v. Smith

by Philip Pendleton Barbour

United States Supreme Court

38 U.S. 464

Burton  v.  Smith

APPEAL from the Circuit Court of the United States for the eastern district of Virginia.

The case, as stated in the opinion of the Court, was as follows:

'In the month of June, 1827, Smith and Kennedy obtained a judgment in the Circuit Court, against Reuben Burton, for $1348 75, with interest from the 14th of October, 1823, and costs. On this judgment an elegit was issued, on the 31st of December, 1827. On the 12th of August, in the same year, Reuben Burton, by deed conveyed his real estate to certain trustees, in trust, to sell the same for the benefit of his creditors; amongst many other debts enumerated in the deed, the judgment already mentioned, recovered by Smith and Kennedy, was included.

These last mentioned creditors, the appellees, never assented to, or accepted anything under the trust deed. Burton having died; the only trustee who accepted the trust, on the 21st of December, 1829, sold, under the deed, all the estate, both real and personal, conveyed by it; and at that sale, Sarah Burton, by her agent, purchased, at the price of $1000, the interest of Reuben Burton, that is, two-fifth parts of a certain tract of land called Springfield, supposed to contain about five hundred acres, and also his interest in certain coal pits on the same tract. The character of Reuben Burton's interest in the Springfield tract of land, as appears from the record, was that of a reversion in fee after an estate for life. And the character of his interest in the coal pits, as appears from an agreement in the record, was this: The heirs of Daniel Burton, of whom Reuben Burton was one, were to have, during the widow's life, the right of occupying, using, and working the coalpits, and the right and power of sinking shafts, and searching for coal on any part of the land, except the yard, &c., paying to the widow, during her life, the yearly sum of $200, for her dower interest. The same agreement will show his interest in a mineral spring included in the decree.

After the death of Reuben Burton, the appellees, finding that there was no personal estate to satisfy their debt, in September, 1834, filed their bill to enforce the lien created by their judgment; making, amongst others, Sarah Burton a defendant, as purchaser of the interest of Reuben Burton before described, in the Springfield tract of land and coal pits.

She answered, saying, that the property conveyed to her was not purchased for her own benefit, but for the benefit of her son Thomas O. Burton, the appellant. She insisted, in her answer, that the appellees had no right to enforce their judgment, as more than five years has elapsed since the death of Reuben Burton. She denied that the judgment created any lien on the property purchased by her, which was valid against her. She insisted that the appellees were entitled to no relief in equity; and that, at all events, a sale should not be decreed.

An amended bill was thereupon filed, making Thomas O. Burton a defendant. He filed an answer, insisting on the grounds taken by Sarah Burton.

The cause coming on to be heard, the Court held the reversionary interest of Reuben Burton in the Springfield tract of land, and his interest in the right of occupying and working the coal pits thereon, and, also, his interest in the mineral spring thereon, with the twenty-five acres of land adjoining thereto, liable to the appellees' judgment; and decreed a moiety of Reuben Burton's interest to be sold.' From this decree an appeal was taken.'

The case was submitted to the Court on printed arguments, by Mr. Lyons, for the appellant; and by Mr. Robinson for the appellees.

The argument of Mr. Lyons was as follows:

The appellant insists that the decree of the Circuit Court is erroneous, and ought to be reversed. 1st, Because the judgment in favour of the appellees against Reuben Burton, gave no lien upon the interest or share of Reuben Burton in the Springfield coal property, which was purchased by Sarah Burton for the appellant; and which, by the decree of the Circuit Court, was adjudged to be sold.

By the common law a judgment conferred no lien upon lands. That lien is the result entirely of the power to extend the lands, and is therefore a statutory power conferred by the act commonly called the statute of Westminster. This position is known to be familiar to the Court; but if authority is desired for it, it may be found in the opinion of Lord Hardwicke, in the case of Stileman vs. Ashdown, 2 Atkyns' Reports, 608, and every subsequent decision upon that subject; and especially in the opinion of the late Chief Justice of the United States, in the case of the Bank of the United States vs. Winston et al., 2 Brockenbrough's Reports, 252; which is quoted, not only because of the high character of the authority, and the just weight which will be attached to it, but because of the distinct and emphatic manner in which the position is laid down, and the rights of the party claiming under the judgment are, in a Court of equity, limited and confined to the right and power conferred by the judgment. The first inquiry then is, could the appellees have extended the interest before mentioned, of Reuben Burton in the Springfield coal lands? It is submitted that they could not. It will be perceived by the Court, that the entire tract of land upon which the Springfield pits are, with the houses, &c., constituted the mansion establishment of Daniel Burton, the father of Reuben, who died intestate, leaving a widow, Sarah Burton, and several children. Until dower was assigned the widow she had the right to retain the mansion establishment, and to derive her maintenance from it. While it remained in that condition, therefore, it is assumed that no elegit could be levied upon it; because if an elegit issue against one child, so might one issue against each child; and thus the whole would be taken and put into the possession of the creditors, and the widow expelled, and kept out, until by her writ she was restored. The children could not lawfully expel the widow; the creditors of the children, standing in their place, could not of course do it. If all could not do it, surely one could not. The lands in the hands of the widow before assignment of dower, could not therefore be taken under an elegit. No assignment of dower has taken place, unless the Court shall regard the agreement entered into by Mrs. Burton and her children (exhibited by defendants,) as such assignment. Is the condition of the appellees aided by that paper? It is submitted that so far from it, the condition is made worse. If that agreement had not been entered into, any creditor of Reuben Burton might have filed his bill against the widow and heirs, and compelled an assignment of dower, which being made, he might have levied his elegit upon the share of Reuben Burton; but this agreement deprives the appellees of that power, because it is founded upon a good as well as valuable consideration-was entered into before any right existed in the appellees-and assigns to the widow, for her dower, the entire tract of land, except the mineral spring, with twenty-five acres, and the right to work the coal mines, and charges them with an annuity of two hundred dollars per annum to the widow. The rights of the appellees, in respect to this property, are manifestly less than if the agreement had not been entered into. Could Reuben Burton's interest in the coal mines and spring, with the twenty-five acres, have been taken under an elegit, after the execution of the said agreement? It is respectfully submitted that it could not. By the inquisition under the elegit the property is placed in the hands of the creditor, who takes all the profits of it, paying therefor a fair annual rent, to be applied as a credit against his claim; and of the portion thus placed in his hands no one has a right to share the profits with him. If this may be done in favour of the creditor of one child, it may be done for the creditors of each; and if two elegits issue at the same time against the same defendant, they take not a moiety but the whole: and thus the widow who has renounced her claim to dower in the other lands of her husband, and thereby suffered them to pass away from her, is to be again ousted and deprived of the annuity, in consideration of which, in great part, she has made her relinquishment under an agreement with the heirs, which is obligatory upon them, and as effectual to charge the property with the rights of the doweress as any which could have been resorted to. It is not necessary to the validity of an assignment of dower that it should be registered: i. e. recorded as a conveyance. If it is, however, and this agreement is to be affected by the failure to register, (although as to one of the parties it was fully proved, being acknowledged, and should have been recorded), then it cannot diminish the rights of the widow, and the argument upon the hypothesis that no assignment has been made, applies.

If land is subject to a trust for the use of a grantor and another, e. g. to raise an annuity, and a judgment is rendered against the grantor, the land cannot be taken by elegit. Doe on demise of Hull vs. Green Hill, 4 Barnwell and Alderson, 684. In the present case the land was subject to a trust, and one of the uses charged upon it was to raise an annuity. The agreement here being a case of dower, was as valid to charge it as any form of conveyance, and so to protect it; the reason is the same in each the right of the annuitant.

What, then, it may be asked, were the rights of the appellees in reference to this property, when they obtained their judgment? They were two-fold-either to take Reuben Burton under a ca. sa., and thus acquire his rights whatever they were in the subject, and by express provision of the execution law, the right to sell them; or upon the return of the fi. fa., to file a bill for an account of the rents and profits of the coal mines, and for a receiver, and a decree for the satisfaction of the judgment out of it. In the lifetime of Reuben Burton they could have done no more. An account of rents and profits cannot be had in the lifetime of the debtor, even after removing a fraudulent conveyance, if an elegit can be levied; and the power of a Court of equity to sell the lands in such a case is clearly repudiated by Lord Hardwicke in the case of Higgins et al. vs. The York Buildings Company, 2 Atkyns, 107. The proceeding to judgment at law, and the 'lis pendens' to enforce it in equity, would have given it, if not a lien exactly, a preferable claim; and a purchaser even for valuable consideration, would have been bound as a purchaser with notice. If a ca. sa. had been executed after the conveyance, the lien of the judgment would have been lost.

In the absence of a 'lis pendens,' and when, if this view be correct, the appellees had not the power to extend by an elegit, and had therefore no lien-viz. on the 12th day of August, in the year 1827, Reuben Burton conveyed the property to trustees for the benefit of his creditors. In the month of December, in the year 1829, more than two years after the rendition of the judgments, during the whole of which time no attempt was made to enforce the judgment as against the coal lands by the appellees, who are among the creditors enumerated as the persons for whose benefit the deed of trust is made-a sale of the subject is made under the deed of trust by public auction, and the appellant became the purchaser. No step had been taken, nor any act done by the appellees indicating their dissent from the deed of trust, nor was any such step taken until the month of September, in the year 1834, more than seven years after the judgment was rendered. In the answer all knowledge of the judgment of the plaintiff, as affecting the coal property at least, is denied; the impression it seems being that an elegit had been levied upon other lands, and it is thought the evidence sustains the answer.

Certainly the answer is not overthrown by the requisite degree of proof-there being only one witness to oppose it; and that witness is opposed in his present recollections by his own written statement made at the time of the sale

The appellant stands then in the position of a purchaser for a valuable consideration, of property upon which the appellees had acquired no lien, and to which, with equal equity, the appellant holds the legal title. In such a case, the purchaser is entitled to the protection of a Court of equity: but if he is not, he is certainly not the proper object for the vindictive exercise of its power, and the Court of equity will leave the adversary creditor to his legal rights. Sugden on Vendors, sec. 5, 338-344, and the opinion of Judge Green in Coutts vs. Walker, 2 Leigh's Reports, 268. The space allowed in this form of argument will not premit a comment on the reason of this rule, if it were necessary. Its justice is apparent: the fair purchaser for a valuable consideration has, upon every principle, at least as much equity as the sleeping judgment creditor-one who sleeps for seven years. And why should a Court of equity seek to turn the scale against him-equity, which always follows and only aids the law? In such a case the proper language of equity is: 'I cannot aid you against one who is equally entitled to my sympathy: if you have any legal advantage over him, assert it: I cannot, and would not if I could, prevent you; but I can do no more.' Here the case is peculiarly strong for the application of the rule. The judgment creditor has, to say the least, been guilty of the most culpable laches. He has laid by for seven years-during which time he took no step against the deed, or the property in question-the property of his debtor, conveyed to secure the payment of his among other debts by a conveyance which gave a priority over him, is sold; and the money arising from the sale applied according to the provisions of the deed-more than two years having elapsed between the rendition of the judgment, and the sale under the deed. Here was time most ample for any purpose, and if any step had been taken by the creditor, the priorities of the parties would have been settled and the purchase money paid over accordingly. Passing by all this after the trustee has misapplied the purchase money, as the judgment creditor contends, he comes into a Court of equity to ask as against the purchaser, that which he cannot obtain at law. No principle is conceived upon which the claim preferred can be sustained.

II. If the judgment did confer a lien, then the appellees, in the case as it now appears to the Court, i. e. unless it appeared that the profits would not in a reasonable time pay the debt, had no claim whatever to the aid of a Court of equity: that equity follows the law and only aids it, is a principle too familiar and well known to need authority; and has been expressly affirmed in respect to this very question of a lien of a judgment by Lord Hardwicke, in a case already referred to, 2 Atkyns, 107; and in other cases to which there may be occasion to refer. The power of a Court of equity over the lands of a debtor by judgment is the consequence of the right acquired by the creditor to redeem prior incumbrances. This is the source and fountain of the power; and if the prior mortgages or incumbrances will not permit him to redeem, or if he is not able to redeem without a sale of the lands; he may apply to a Court of equity to compel a redemption; and therefore a sale of the property. Sugden, 340.

By degrees, in the absence of any law or legal principle to sustain them, the Courts have extended their power; and commencing with the principle of aiding and following the law, they have arrived at the conclusion, that they may do that which the law could not do, and sell the land. But this has been, not in a case like that before the Court, but in cases as it will be presently shown, founded upon obligations which bound the heir. But to recur: did the judgment, in the case before the Court, give a lien upon the lands? If it did, then it is respectfully submitted, that the appellees, in the case they have made, had no claim to the aid of a Court of equity; because there was nothing to impede their progress, and remedy at law. In the case before cited, 2 Atkyns, 107, where the debtor was living, Lord Hardwicke decided, that the Court of Chancery had the power to remove a fraudulent conveyance; it being a principle of equity jurisdiction that where fraud in fact is charged, a Court of equity therefore has jurisdiction, because from its more comprehensive power it can more fully try the fraud, although a Court of law is competent to try it. But having done that, its power ceases, and the parties must be left to their remedy at law upon the elegit; and in the case of Wilders vs. Chambliss, administratrix, and heirs, 6 Munford, 432, the Court of appeals of Virginia affirmed a decree of Chancellor Taylor, dismissing the bill of the judgment creditor upon the ground that the elegit was the remedy; it appearing in that case that the profits of the land would in a reasonable time discharge the debt. Here is a decision upon the point when the debtor was alive, and another when the debtor was dead, concurring in both cases; the claim resting upon an obligation which bound the heirs. It will be shown presently that the latest Virginia decisions concur with that last cited; at least in this, that the land should not be sold when the rents and profits will in a reasonable time discharge the debt.

Looking to the reason of the thing, it may well be asked upon what ground it is that a Court of equity should deny itself the power to sell the land when the debtor lives; and yet as soon as he dies and his children have become more helpless, and therefore entitled to the care of the Court, it shall assume the power to sell the lands to satisfy the very same debt. There is no reason for it, unless in a case in which the obligation binds the heir; and then, as the heir is chargeable to the whole extent of assets descended, the Court of equity may, without much stretching its power, order the sale. It is believed that the power has resulted from confounding the power to redeem prior incumbrances, and the practice in marshalling assets and securities, whereby an entirely new power has been made; not justified by the first head, as the authorities cited show, and not justified by the latter, as will be seen by consulting any work upon the subject, as the latest and most luminous of which, Story's Equity, titles Marshalling Assets, and Marshalling Securities, is referred to. The practice of selling when the obligation binds the heirs, if it be established, cannot furnish authority for selling in a case like that before the Court, because the judgment does not bind the heir. Stileman vs. Ashdown, 2 Atkyns, 477. Nor can any authority be derived from the other heads; because in those cases there must be two securities, and two funds. Here there was but one fund and one security, and nothing therefore to marshall, i. e. to array and arrange, so as to promote justice and equity.

It is thought, however, that the Court will find in most, if not all the cases in which decrees for sales have been made, that the case came into Court under the power to redeem, as in Stileman vs. Ashdown, or to marshall, or upon claims binding the heirs in some form. In this case not one of these qualities exists. There is nothing to redeem; if there is, the plaintiff does not ask that privilege: there is no fraud alleged; there is nothing to marshall; and the claim was originally on a simple contract, and therefore did not bind the heirs; and the judgment does not bind the heirs. The case then presents these peculiarities. One man has a simple contract claim against another: he sues him, and obtains judgment. If he pleases he may extend his lands, but he cannot sell them: he extends them, and the debtor dies, and by that event a power is conferred to sell the land, although the reason against selling may be and generally is stronger after the death of the ancestor than before. To the heir it may be a matter of great importance to be enabled to pay the debt off by the gradual process, or at least to keep it out of the market, where it may be sacrificed at a sheriff's sale; until he can acquire the means to prevent the sacrifice. How is it that the death of the father shall confer the power to do that which could not be done while the father lived? Why should it be so? If it be said that here the elegit was not actually levied in the lifetime of the debtor; that only weakens, if it affects at all the case. Then the case stands thus: the land descends to the heir, and comes into his possession; the creditor pursues with a claim which does not bind the heir, and which if carried to its utmost extreme, could only take possession for a limited time of a moiety of the land; the heir is ready to yield the land to the whole extent to which it was liable in the lifetime of the ancestor, and yet he is to be told this shall not be: he must pay immediately the debt for which he is not bound, and for the satisfaction of which not even the other moiety of the land could be touched; for which in the lifetime of his ancestor no foot of the land could have been sold, or the entire moiety must be sold. Whence the right thus to abridge the right of the heir? Let it be supposed that the profits of the land would in three years pay off the debt, and the property is of that description which at a forced sale is almost invariably sacrificed, and such is emphatically coal property; whence is derived the power to doom him to his sacrifice, and put his property into the possession of his creditor, perhaps at half its value? Where is the justice and equity of the proceeding? Many other illustrations might be given, but the limits of a written argument forbid it.

Thus far the question as affecting the heir has been discussed; but the case is really against a fair purchaser, who is liable only, and can be proceeded against as terre tenant. Is there a case in which the power of the creditor has been enlarged as against him? Upon what ground is it that he shall be doomed to a sacrifice of that property for which he has fairly paid; and which, in the hands of the man from whom he purchased it, would not have been liable to such sacrifice? Is it not enough, in such a case, that the creditor may pay himself by the use of the property? With him there is no privity, no liability, not strictly legal; the purchase of the land may have deprived him of the means to redeem; and it may be that the land will soon pay the debt. Could his land have been sold in the lifetime of the vendor? Clearly not, as it could not be sold in the hands of the vendee. How can the subsequent death of the vendor so operate upon the vendee, as to make that property liable to sale after the death, which was not liable before? There can be no pretext of redeeming, nor of marshalling either assets or securities; for the land, at the death of the vendor was no part of his estate. No reason is seen, and no authority is known for it, in a case like the present.

III. If the appellees had a right to come into a Court of equity, it was because of a valid lien (which is denied) that could not be enforced at law; and, in that case, they were entitled to an account only of the rents and profits accruing, and the application of them to the payment of the debt.

In Coutts vs. Walker, 2 Leigh's Reports, 268, land was settled to the use of the grantor and his wife while they lived-to pay the wife an annuity if she survived; and, at her death, to be divided among the children of the grantor. The wife survived; and during her life judgments were rendered against one of the sons. The judgment creditor filed his bill to subject the son's interest; and the Court of Chancery decreed a sale of it, subject to the rights of the widow, as in this case. The Court of appeals reversed the decree, and directed an account of profits: deciding that the plaintiff was not entitled to a sale, but must be paid out of the profits.

In the case before the Court, the agreement with Mrs. Burton places the property, as to the debtor, just where the settlement in Coutt's case did: subject to the annuity, he was entitled to his share of the profits and the reversion in fee. The case seems to be in point directly. In a later case, Tennant's heirs vs. Patton, 6 Leigh, 196, the same Court reversed a decree for sale; and decided, that where the rents and profits would in a reasonable time pay the debt, it must be paid from them. And in the case of Mann vs. Flynn, recently decided, (the opinion pronounced by Judge Stanard,) the same Court affirm the case in 6 Leigh. The manuscript opinion is now offered to the Court, by the favour of Mr. Leigh.

The case of the United States vs. Morrison et al., in this Court, has been relied upon. That case was ruled chiefly upon authority of Coleman vs. Cocke et al., 6 Randolph. Now, it so happens that in Coleman vs. Cocke, the question was not raised as appears by the case; and Judge Green, moreover, expressly so declares in Blow vs. Maynard, 2 Leigh, 29.

IV. It is insisted that the appellees, having made no objection to the deed of trust although two years elapsed after it was made, and before it was acted upon; and taken no step to prevent the sale, are to be presumed to have acquiesced in it: and by their laches, have lost the right to impeach the sale; especially as nearly five years more elapsed after the sale before any move was made. The trustee is the agent of the grantor and cestui que trust; and if any wrong has been done, it has been by their agent; and to him the appellees should look.

V. An account of the administration of Reuben Burton's estate should have been ordered, whereby the appellant might have shown a personal fund adequate to the payment of the debt.

VI. An account of the rents and profits of the coal property should have been ordered; and the surplus, after paying the annuity, applied to the payment of this debt, if it was to be paid from the land in any form.

VII. The widow and heirs of Daniel Burton should have been parties to this suit; the widow at least.

VIII. The judgment was dead and inoperative when the decree was rendered; and no decree should have been rendered upon it until it was revived, if it could be. If it could not be, then no decree could be founded on it.

For the foregoing reasons, it is asked that the decree of the Circuit Court may be reversed, and the bill dismissed; or, if that may not be, that it be reversed and modified according to the views herein submitted.

In reply to the argument for the appellees, the counsel for the appellants said; the cases relied upon are cases binding the heirs; and the question was, what constituted assets under the plea of 'Reins per descent.' In such cases, the heir who inherits a valuable reversion cannot make the plea; the reversion is assets in his hands. This is emphatically the case in Tindales vs. Warre, 4 Eng. Condensed Chancery Report. But, it is repeated, that when the right of the creditor depends upon the power of the elegit, a dry reversion is not liable, because it cannot be extended. It is believed, with due submission, that no such case can be found. How can you extend, at a yearly rent, that which, by the terms of the proposition has no yearly value? What would be the condition of the creditor, whose debt was annually wasting away by the use of a thing which was not susceptible of use? Who was accounting annually for the profit of that which could not yielf profit?

Mr. Robinson for the appellees.

In the Court below, the statute of Virginia was relied on which declares that no action of debt shall be brought against any executor, or administrator, upon a judgment obtained against his testator, or intestate, nor shall any scire facias be issued against any executor, or administrator, to revive such judgment after the expiration of five years from the qualification of his executor, or administrator. 1 R. C. p. 492, § 17. A single answer to this objection will suffice. The qualification of Reuben Burton's administrator, was on the 9th of December, 1829. This suit was brought the 15th of September, 1834. It was, therefore, brought before the expiration of five years from the qualification; and the statute does not apply. This being the case, it is unnecessary to urge upon the Court the considerations which forbid such a defence in equity by a purchaser under a deed of trust, which mentions the judgment, and acknowledges the debt to be due.

The judgment remaining in full force, the question then is, how far it operates as a lien upon the real estate of the judgment debtor.

The writ of elegit given by the statute of Westm. 2, has always been in use in Virginia. Every person recovering any debt, damages, or costs, may sue out this writ to charge a moiety of all the lands and tenements whereof the debtor was seised at the day of obtaining the judgment, or at any time afterwards. 1 R. C. 525.

Some years before the judgment, Daniel Burton the father of Reuben Burton died intestate, leaving Sarah Burton, his widow, and the following children as his heirs, to wit: Thomas, a child by the said Sarah; and Susan, Mary, Reuben, Rebecca, and William, by a former marriage. Rebecca afterwards died intestate, and unmarried, leaving her brothers and sisters as her heirs. As heirs of Daniel Burton his two sons, Reuben and William, were each entitled to a sixth part of his real estate; and as heirs of Rebecca, they were each entitled to two-ninths of her real estate. Reuben Burton acquired, by purchase the whole interest of William, as heir of Daniel Burton, and also as heir of Rebecca; and in this way, his share of the real estate of Daniel Burton (taking into account the part of William and the part of Rebecca) was two-sixths and four-ninths of another sixth, being rather more than two-fifths.

By the terms of the agreement relied on in the defence, the heirs of Daniel Burton were to have during the widow's life the right of occupying, using, and working the coal pits, and also the right and power of sinking shafts and searching for coals on any part of the tract of land attached thereto, except the yard, houses, and gardens; and also the right and privilege of cutting and taking on any part of the tract, all necessary timber and wood for the use and management of the coal pits, opened, or to be opened, paying to the widow, during her life, a yearly sum of $200 for her dower interest. It has been objected that Reuben Burton's interest in this part of the subject could not be charged, because the subject was not exclusively his. This objection can present no difficulty. The judgment is clearly a lien upon a moiety of all the lands or tenements of which the debtor is seised. The estate in lands or tenements of a joint tenant, or tenant in common, is charged by judgment against such joint tenant, or tenant in common, as much as any other interest in real estate. It has long been so settled. In Viner's Abr. tit. Execution, let. N. pl. 25, vol. x. p. 549, it is laid down, that 'if there are two joint tenants, and one makes a statute, and afterwards joins with his companion in a feoffment of the land, the moiety of the land may be extended upon this statute.' As it may be extended upon a statute, it may likewise be extended upon a judgment. See Gilbert on Executions, 11, 42.

The question applicable to the tract generally, with the exception of the interest just mentioned, is, whether a judgment against a debtor who has a reversion in fee expectant upon an estate for life, creates a lien upon such reversion. It was upon this part of the case that the other side relied principally in the Court below.

We were told that a rent seck was not extendible; and from this it was attempted to deduce the conclusion, that a reversion after an estate for life (a dry reversion as it was called) could not be extended.

The case in which it was decided that a rent seek could not be extended, was that of Walsal vs. Heath, Cro. Eliz. 656. The action was replevin. The avowry was, that J. S. seised of lands for the life of Sibyl his wife in right of his wife, the reversion in fee to the baron; he and his feme made a lease for years, reserving 4 rent ner annum. The baron being indebted by obligation made the said Sibyl his wife, executrix. The debtor brings debt against her, by the name of Isabel, and recovered; and upon a writ of fieri facias a devastavit was returned, and thereupon an elegit awarded, and the sheriff returned that Isabel had ¶4 rent issuing out of that land, upon a demise made by her and her husband, and delivers the moiety of that rent, and thereupon he avows for the same, and it was thereupon demurred and adjudged ill for three causes. First, because a lease for years by baron and feme, without deed, is void against the feme. Secondly, the recovery against Isabel is void against Sibyl; and the sheriff cannot extend her land. Thirdly, the sheriff delivering the rent without land, so as there is not any reversion, it is but a rent seck; and a bare rent cannot be delivered, ut liberum tenementum.

This case does not at all go to show that a reversion in fee is not charged by a judgment.

It would be very remarkable if the judgment should create no lien upon a reversion, when such reversion is liable to a mere bond creditor of the ancestor. For it has long been adjudged that upon an obligation of the ancestor, binding himself and his heirs, the heir may be charged in respect to any estate of freehold which has descended upon him. A reversion in fee, expectant on a term of years, is regarded as assets in the hands of the heir; although the term be to continue five hundred years; as was the case in Smith vs. Angell, 2 Ld. Raym. 733. A reversion in fee expectant on an estate for life, is also assets; notwithstanding the life estate be still continuing. Rooke vs. Clealand, 1 Lutw. 303. 1 Ld. Raym. 53. Vin. Abr. tit. Execution, M. pl. 7. 15. If the party seised of the reversion, devise it for any other purpose than the payment of debts, the devise is void as to specialty creditors; and the creditor may maintain an action on the specialty against the devisees as well as the heirs, and charge them in respect to the reversion. Stat. of W. & M. enacted in Virginia in 1789; 1 R. C. 391, 392. And if any heir or devisee, so liable, shall before action brought alien the estate descended to him, he will be liable for the value of the land so aliened. Ibid.

The inquiry then presents itself, whether a creditor who has obtained a judgment against a debtor in his life time, is worse off, in respect to this matter, than a creditor by specialty merely.

In the case of Coke vs. Barnsley, Brownl. 234, where the question was, whether land held in ancient demesne was extendible, the judges held that it was: saying, 'for otherwise, if it should not be extendible, there would be a failure of justice, which the law doth not allow of.' There would be an equal failure of justice, if a reversion in fee were not liable to a judgment creditor. It is well settled that if a man lease for a year, rendering rent, the reversion may be extended upon an elegit during the lease, and the tenant by elegit shall have a moiety of the rent. Sir Thomas Campbell's case, 1 Rolle's Abr. 894, pl. 5. It is also settled, that if there be tenant for life, the reversion in fee, and he in reversion acknowledges a statute, and then grants the reversion, and then tenant for life dies, this land shall be extended upon the statute. 2 Rolle's Abr. part 2, p. 473, let. Q. This proves that a statute creates a lien upon a reversion expectant upon an estate for life, though the life estate be still continuing.

The lien upon a reversion created by a judgment, is equal to that of a statute. It was so decided by Lord Hardwicke, in Gifford vs. Barber, 4 Vin. Abr. tit. Charge, letter A, pl. 17, p. 451. There the judgment debtor had a reversion after an estate tail. The estate tail having terminated, and the reversion coming into possession of the heir of the judgment debtor, the question was, whether the judgment created a lien upon it. The chancellor held that a person having an estate of inheritance subject to intermediate estates, might grant, charge, or encumber the reversion as he should see fit; and might encumber it by judgment as well as in any other manner.

The whole law upon the subject is laid down will great clearness in Gilbert on Executions, 38, 39. He says, 'The judgment binds not only the lands and tenements of which the defendant is actually seised, but also the reversions on leases for lives as well as for years. For though the words of the elegit are, 'a moiety of all the lands and tenements of which the said A. was seized,' &c., yet the intent of the writ extends to whatever lands and tenements were actually vested in the defendant; because the statute is a moiety of the lands, which extends to reversions, which are comprised under the name of lands, since they are lands returning to the defendant when the particular estate ceases; and, therefore, though this was formerly disputed, the latter resolutions have settled the law to be as we have already mentioned.'

The law is laid down in the same way by Sir Henry Gwillim, in a volume, which he prepared before his death, of the last edition of Bacon's Abridgment. See tit. Execution, let. C. vol. iii. p. 381, of Lond. ed. of 1832. And in the late case of Harris vs. Pugh, 4 Bing. 335, 13 Eng. Com. Law Rep. 459, it is expressly stated by the Court, that if the estate of the debtor in the reversion had been a legal instead of an equitable estate, the judgment would have bound it, and overreached the subsequent conveyance.

The judgment being a lien upon the property, that lien clearly operates against the alienees of the debtor. United States, vs. Morrison, &c. 4 Peters, 124. Watts vs. Kinney, &c. 3 Leigh, 272.

If there were any difficulty in taking the reversion of the debtor in execution at law, it would, upon the general principles of a Court of equity, still be bound in equity: and the lien enforced against the debtor's alienees. Coutts vs. Walker, 2 Leigh, 268.

In this case, the reason for enforcing the lien against the alience is stronger than usual; for here, the property subject to the lien was purchased with full knowledge of the judgment, and knowledge also that the debt was still due.

The trustees in the deed of trust could, certainly, not object to the Court's decreeing a sale of the property subject to the lien. For they, by the terms of the deed of trust were to sell at all events, See Mutual Ass. Society vs. Stanard, &c. 4 Munf. 538. Neither can any one claiming under the trust make that objection. It might indeed have been seriously contended, upon the authority of the case just cited, that the decree should have been for the sale of the whole property, instead of a moiety merely. But such a decree would no doubt have been objected to on the other side, and the objection has been carefully avoided. The decree in this case merely directs a sale of the land, so far as the creditor has a lien upon it.

That equity will, at the suit of the creditor, after the death of the judgment debtor, accelerate the payment by directing a sale of the moiety; and not compel the judgment creditor to wait till he has been paid out of the rents and profits, was settled in Stileman vs. Ashdown, 2 Atk. 608, Amb. 13, and has been acted on in a great number of cases. Galton vs. Hancock, 2 Atk. 433. O'Gorman vs. Comyn, 2 Sch. & Lef. 137. O'Fallon vs. Dillion, ibid. 13. Countess of Warwick vs. Edwards, 1 Dick. 51. In Virginia the principle has been recognised in Blow vs. Maynard, 2 Leigh, 57. 66.

No portion of a debtor's real estate is exonerated from his creditors, or exempted from being sold, because it yields nothing annually.

In Robinson, &c. vs. Tong, 2 Str. 879. 3 P. Wms. 401, where the question related to an advowson which had descended upon the heir, to wit, a right of presentation to a church; and the objection was taken that it yielded nothing; it was answered that it might be made available by sale. Lord Hardwicke decided the same way in Westfaling vs. Westfaling, 3 Atk. 460. Not only was the advowson decided to be real assets, and directed to be sold; but it was decreed that the money should be paid to judgment creditors according to the priority of their judgments, and then equally to bond creditors. Tong, &c. vs. Robinson, 1 Brown's Par. Cas. p. 114 of Tomlin's edition.

In the case of a reversion, where it is impracticable to obtain a discharge of the debt by any application of rents and profits; and where the only way of making the reversion available in any reasonable time is by sale; there is every reason for decreeing a sale. This subject has been fully considered, and the propriety of a sale decided in Tyndale vs. Warre, Jacob's Reports, 212. 4 Cong. Eng. Ch. Rep. 100.

Mr. Justice BARBOUR delivered the opinion of the Court.

Notes