Henry St. George Tucker.

Commentaries on the laws of Virginia, comprising the substance of a course of lectures delivered to the Winchester law school: (Volume 2) online

. (page 67 of 95)
Online LibraryHenry St. George TuckerCommentaries on the laws of Virginia, comprising the substance of a course of lectures delivered to the Winchester law school: (Volume 2) → online text (page 67 of 95)
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of a fifa, which cannot prevent the sale of any particular slave, unless by
subsequent levy on hitn the right to subject that identical slave to execution
is fixed and ascertained: but when that is done it avoids all mesne levies
•as well as conveyances.

If this construction be admitted, the consequence will be that the subse-
quent judgment creditor will by his elegit receive the intermediate profits
of the estate during the continuance of the debtor's imprisonment under the
casa, but that upon the defendant's taking the insolvent oath and surrender-
ing his property on his discharge, the creditor by casa will have the better
title. This opinion, however, is much contested. It is contended by those
who advocate the superiority of the elegit, that the law did not intend to
avoid intermediate executions, which are the act of the law, but only inter-
mediate sales, conveyances, and transfers, which are the act of the party ;
and that the clause declaring that a casa shall bind from the time it is levied
was only intended to settle precedence between various casus, and not to
give the casa, after it is levied, the effect of excluding other executions of a
different character : and a like argument is used as to the act which declares
that personal property shall be bound from the time of the levy of a casa.
On the other hand, it is contended by some that the elegit cannot issue to
cover the intermediate profits; that the casa-creditor may enforce his lien
by bill in equity, even before his debtor takes the insolvent oath, and that
the lien given is an operative lien which he may at once render available.
This latter opinion, however, seems to me entirely without foundation ; but
that which asserts the superiority of the elegit to the casa, is not only main-
tained by some of the profoundest members of the profession, but is not
without forcible reasons in its support. It has hitherto appeared to me,
however, liable to insurmountable objections. The first clause of the act
sufficiently protects the creditor against sales and other acts of ihe party ;
the latter clause, in declaring when the casa shall bind, must therefore ob-
viously have reference to other executions which are the acts of the law.
It was not intended merely to settle the precedence among them, (though it
has that operation also, 1 Leigh 277,) since the debtor may by his deed
place them all upon the same footing. The provision is analogous to the
binding effect of a Jifa, which, though until a levy it does not change the pro-
perty, yet when the levy is made, it relates to the time of delivery of the
writ to the sheriff, and not only avoids mesne acts of ihe party, but gives
to the creditor a preference over a subsequently levied execution. 1 T. R.
729. Were it otherwise, it would follow that after a casa levied, the debtor
might not only confess judgment to a subsequently brought action for a
subsisting debt, but might borrow of a friend, after he was in execution, to
the value of the land, and by confessing judgment on two bonds, and en-
abling him to sue out elegits^ evade the statute and defraud the creditor. I
still incline, therefore, to the opinion that the casa will, after the debtor
swears out and surrenders his property, overreach an elegit upon a judg-
ment obtained subsequent to the levy of the casa, and that the elegit only
has the effect of securing the intermediate profits. Since this was written,
two cases have been decided on this point. In Jackson vs. Heiskell, 1
Leigh, 257, the casa lien was pronounced superior ; the court being of

880 OF THE ELEGIT. [book 3.

opinion that it overreached the intermediate judgment and execution. In
a subsequent case of Foreman vs. Loyd, 2 Leigh, this opinion was over-
ruled, though by a bare majority of the court.

In like manner, I was of opinion that after a casa levied, the goods of the
debtor are so far bound by the levy that no subsequent fifa levied on the
same goods can divest the right of the casa-creditor. For the act, by de-
claring that the goods shall be bound from the levy, obviously refers to the
la;miliar doctrine of the fifa binding from the delivery to the sheriff, and
must have intended to give a like preference to the first execution. The
second /i/a-creditor, I should think, might indeed still levy on the goods and
sell, subject to the lien of the other; for during the confinement of the
debtor there is an intermediate interest which the casa-creditor cannot ren-
der available, and to which the //a-creditor would therefore have a just

These crude suggestions are offered, however, with much diffidence, and
merely with a view of turning the thoughts of the student to the subject.
The decision in the case of Foreman vs. Loyd, before mentioned, seems
however, to have established a construction of the act of assembly at vari-
ance with the opinion that the levy of the casa would suspend or avoid the
intermediate execution.

2. It is to be observed that the debtor in execution may make a valid con-
veyance of his real estate to the creditor or creditors at whose suit he is in
execution, or for their benefit. It is clear that he may place them upon an
equality, so that no preference seems to be intended to one of the credi-
tors over another. It is, indeed, not clear that he can give a preference if
he even wished to do so, since the language of the act strongly indicates
that such conveyance must be for the benefit of all the creditors at whose
suit he is in execution.

3. Suppose, however, the defendant dies in execution ? Then the plain-
tiff is remitted to his right to sue out any execution against the lands of the
debtor. I R. C. ch. 134, § 8. If this be done within the year after his
judgment, will that judgment give him a preference ? It would seem not ;
for though he is remitted to his remedies they are not strengthened by the
circumstance that the debtor had been in execution. 1 Leigh, 276.

I will venture to add here another opinion in reference to this act, though
it does not relate to the eleprit.

The act avoids all deeds made after the levy of the casa, except for the
benefit of the casa creditors. Suppose such a deed made. Can the cre-
ditor, while he retains his debtor's body in execution, file a bill in equity to
set aside the conveyance and to subject the lands to the payment of his
debt? I apprehend not. For he has no specific lien, and it is against the
Avhole system of the law that the creditor shall hold the body of the priso-
ner and yet proceed against his property, except in cases of mortgage,
where it is done by his own assent and contract.

A few things yet remain to be added on the subject of elegit.

If an elegit is not issued before the expiration of the year, — and after
that time, and before the emanation of the elegit, the debtor sells the lands,
the purchaser is protected, and the elegit will not overreach his purchase.
But suppose the sale is made within the year, and there is no election to
charge the land till after the year, will the elegit then issued overreach the
claim of the purchaser under the deed made withiii the year ? I apprehend
it will not;

1. Because, though the purchaser bought with notice of the judgment
and \vithin the year, and made his purchase subject to a subsisting lien, yet
that lien ceased at the expiration of the year.

oi{AP. 90.] OF RELIEF IN EQUITY. 881

2. Were it otherwise great difficulty and absurdity would ensue, as the
following case will shew:

A recovers judgment against B, who within the year gives a deed of trust
to C, and after the year expires, he gives another deed of trust to D, and
A then issues his elegit. JSow the elegit confessedly gives way to D's lien,
because he took it after the year, and A had not then elected to charge the
land. If, then, the elegit is superior to C's lien given within the year, then
this absurdity would follow : that G's lien would be superior to D's, because
of its priority, and yet inferior to it because inferior to the elegit, which it-
self is inferior to D's. Thus it would be both inferior and superior at the
same time, which is impossible. I conclude, therefore, that the creditor,
by omitting to make his election within the year, loses his power of over-
reaching even such deeds or liens as are made within the year.

In executing an elegit the sheriff proceeds by summoning a jury of
twelve men, upon whose oaths are found what goods and lands the defen-
dant hath, which they estimate at a fair price or extent ; the term price re-
ferring itself to the value of the goods appraised, and the term extent to the
annual value of the lands estimated. Nor can the sheriff deliver any goods
in execution, or extend any land?, unless they have been first appraised and
valued by jurors of the inquisition. 4 Co. 74. Dalt. 134. Bac. Sheriff,
N. The sheriff and jury usually and properly go to the premises, which
they have a right to enter peaceably, but may not break open the gates or
doors. They can estimate only those lands which are within the officer's
bailiwick, (i. e. county,) for the writ extends only to them. They proceed
to appraise the goods and chattels, and to estimate the annual value of the
lands, and then to set out by metes and bounds, distinctly, a fair moiety of
the lands for the creditor. Carth. 453. 1 Barn. & Aid. 40. It is not ne-
cessary that the creditor should have a moiety of each farm or tenement.
It is sufficient if he has a fair moiety of the whole delivered to him. Doug.
473. An inquisition setting forth these matters is then found and sealed
both by the jurors aud sheriff, and returned with the writ. The sheriff
thereupon delivers to the plaintiff the goods and chattels at the appraised
value in discharge, so far as they will go, of the execution, and the moiety
of the land ascertained as aforesaid, to hold until thereout he is satisfied
the residue. Formerly he put the plaintiff into actual possession. 2 Eq.
Cases, 381. 3 T. R. 295. Of late years the sheritT only delivers legal
possession, and the plaintiff is left to acquire actual possession by eject-
ment. But see Rogers vs. Pitcher, 6 Taun. 202, per Gibbs contra.

Where part of a debt is levied upon an elegit, a new elegit may issue for
the residue. I R. C. ch. 134, § 3. This was also the law independent of
tliis act. 1 Levinz, 92.

Before concluding our remarks on the fruitful subject of executions, it
may not be amiss to remark, that by the modern practice relief is in many
instances afforded to the parties by motions to quash executions. See
Tidd, 1047. This may either be at'the instance of the plaintiff or defen-
dant, according as the one or other is the party injured. Thus if the exe-
cution be for too little, the plaintiff may himself move to quash it, and when
quashed he proceeds to take out another at his pleasure. So if an erro-
neous forthcoming bond be taken, on which he cannot obtain an award ot
execution, the plaintiff must upon motion have both bond and execution
quashed, if he wishes to take a new execution. 2 W. 189. The bond,
indeed, being good as a common law bond, it may be his interest to stand
by it and bring an ordinary action upon it, in order to charge the security ;
and this is the usual course where the defendant has become insolvent, and
there are doubts also of the officer's solvency. But if the defendant yet
continues solvent, the creditor by quashing both bond and execution, may


proceed by a new execution as if the former had never issued or been le-

On the other hand, the defendant, if aggrieved by an irregular execution,
may proceed by motion to have it quashed : and so, if since the judgment
he has paid the debt, and an execution, nevertheless, issues against him, he
may upon motion prove his payments and have the execution quashed.
For, according to the principles of the law, he might herein have been re-
lieved by audita querela, and this motion is a convenient substitute for that
antiquated writ. See I John. 50.

The following may be added as another case in which this remedy would
tie appropriate.

We have seen that by the modern practice, if there are several plaintiffs
or defendants, and one dies after judgment, his death is suggested on the
roll, and the execution issues without the scire facias. Sellon, 518. If,
however, this suggestion be untrue, it would be competent to the defendant
upon motion to shew the fact and have the execution quashed for irregu-

In all cases of motions to quash executions, a notice is given to the ad-
versary party, or a rule is made upon him in court to shew cause against
the motion, at a specified day.

Intimately connected with executions is the inquiry how far a court of
equity will lend its aid to a plaintiff in an action at law, where he meets
\vith obstacles to rendering his execution available ? I propose, therefore,
io advert to the doctrines on this subject under several heads.

I. In what cases will equity lend its aid to the plaintiff iu an action where
he meets with obstacles to his execution?

1. Although, as we have seen, our statute declares that trust estates shall
.be lial)le to the debts of the cestui que trust, yet it seems now to be well un-
■derstood that this clause embraces those express trusts only, in which tlie
cestui que trust has the whole beneficial interest, and the trustee only the
naked, formal, legal title ; it does not reach the case of a mere equity ; 1
John. 55, 56 ; for a judgment-creditor cannot come at a mere equity by an
execution at law. He must go into chancery, or he cannot have the bene-
fit of it. 2 John. .31-2. 5 John. Kep. 335. 8 E. 4G7. When, therefore,
the creditor has taken and exhausted all the means in his power at law, he
will be entitled to the aid of a court of equity to discover the equitable in-
terest, and to make it available for his execution.* 4 John. C87. But be-
fore he can do so, he must first have taken out his execution and caused it
to be levied and returned, so as to shew a failure of his remedy at law ;
and when he has done this, he acquires a legal preference to the assistance
of equity, or a lien on the equitable interest, which cannot be affected or
impaired by a subsequent assignment by the debtor; and though equitable
assets are usually distributed pari passu, yet in this case the creditor's pre-
ference will be preserved to him in the distribution of the assets. Ibid. 1
Leigh, 14*2.

2. Where a debtor has made a conveyance of his property in fraud of his
creditors, such conveyance is declared by the statute to be void. It is there-
fore void not only in equity but at law, and even in a court of law will yield
to the superior claims of a creditor. If, therefore, the debtor make a fraudu-
lent conveyance of a slave after the delivery of an execution against his
goods to the sheriff, or of his lands after a judgment against him, and the
plaintiff sues out Wn^ fifa in the one case, or his elegit iu the other, and the
slave is sold or the lands extended, the persons holding under these execu-

* Oil a bill to set aside a fraudulent conveyance the creditor's judgment at law is prima facie evi-
<1ence, unless impeached for fraud, or by shewing that a full defence was not made, aud tt«W proof is
tnu:oduc«d to shew that the debt is not bona fide duo. 4 Ran. 232.


tions in any contest with the volunteer by deed, will be protected even at
law, since the deed is void and of no effect. It may, however, and often
does happen, that these frauds are so concealed, or the transactions so en-
tangled, that the sheriff does not venture to levy, or a jury sworn on an ele^
git cannot be induced to extend the land because of the existence of the
deed, and perhaps from defect of evidence of the fraud. There seems to
be no doubt that in such cases where a third person may have possessed
himself of the debtor's property, and placed it beyond an execution at law (2
John. 296,) or where, from embarrassments thrown in the way of the cre-
ditor at law by fraudulent deeds or transfers, he stands in need of the aid
of a court of equity to enforce the judgment at law by a discovery and ac-
count, that aid will be afforded.

3. Fraudulent conveyances of choses in action appear to be considered'
as fully within the same principle. It seems, indeed, to have been suppos-
ed, that as, according to the principles of the common law, choses in ac-
tion were not assignable, so neither could they be taken in execution ; and
as the creditor could not take them in execution, no transfer of them could
with any propirety be said to hinder or obstruct him within the meaning of
the statute of frauds. Besides, however, that it may be very doubtful whether
with us bonds and other choses in action which are assignable by law, may
not be taken in execution if they can be got at, it seems to have been the
opinion of a distinguished chancellor, that the statute of frauds did apply
even to such property as cannot be reached by legal process, and that equi-
ty will lend its aid to get at it. 4 John. 450. See in favor of this opinion^
Amb. 79, 596. 2 Atk. 600. And against it, what is said, I Vez. jr. 146.
2 Cox, 235. 1 Ansfe. 381. 9 Vez. 189. 10 Vez. 368. 1 Ball & Beatty^

4. Where a specialty binds the heirs of the obligors, and assets to the-
value descend, we have seen that an action of debt lies against the heir, in
which, if he acts fairly and pleads as he ought, a judgment will be render-
ed whereby the assets descended will be subjected to the debt, and deliv-
ered over to the creditor by a species of extent. See 3 B. C. 421, Judge
Tucker's note. If, however, he pleads falsely or injudiciously, or if he has
aliened the assets, he is personally liable. Thus it is obvious that though
the creditor by bond has no lien on the land in the obligor's lifetime, he has
in effect a lien on the land while it remains in the hands of the heir after
the obligor's death. Out of this lien and of the inconvenient and imperfect
remedy of the common law execution above referred to, seems to have
grown a practice in equity of entertaining the creditor there, and decreeing
a sale of the lands instead of an extent, in case of the default of the heir
in making payment. This practice appears to have been long since recog-
nized, (see 2 Atk. 433. 1 Eq. Ca. 149,) and seems to be in consonance
with the principle avowed by the court, that while at law the creditor sues
the person in respect of the assets; in equity he pursues the assets them-
selves. 1 Vez. 430. In a late case the doctrines on the subject have
been examined, and the principle affirmed, that creditors may file a bill
against heirs and devisees for the sale of the real estate descended, to make
good the deficiency of the personalty ; but the real estate will not be di-
rected to be sold until the amount of the debts and the deficiency of the
personal estate have been ascertained, to which end all the known creditors
should be parties. 4 John. 638, 645. See 2 John. 296. Those who are
unknown may afterwards come in, for which purpose they should have no-
tice (I presume through the gazettes) to come in and prove their debts be-
fore a master or commissioner. See 4 John. 646. It seems, moreover, to
have been considered that such sale will not be directed where the annual
rent of the land is more tlian sufficieat Ijo pay the interest on the debt : 6


Mun. 43*2: though the reasons of the court not being given in this case,
we are left to conjecture them. Sed vide, Blow i^s. Maynard, 2 Leigh, ii9.

The principle which refuses to subject the land to sale until the personal
estate is exhausted, seems to correspond with the doctrine (1 Mun. 437,)
which refuses to marshal assets for a simple contract creditor against the
heir or devisees, until he has established a deficiency of the personal es-
tate. As indeed the creditor in both cases invokes the aid of equity, he
must abide its principles, which require equity to be done to all parties,
and therefore place the debt at once upon the personalty, which is the na-
tural fund, and to which the heir has a right to resort for his indemnity.

We may here also observe, that a decree for sale of real assets descend-
ed, will not be impeded by reason of the infancy of the heir; 4 John. 619;
but on the other hand it is not considered the duty of his guardian to apply
the rents and profits of his estate to pay the bond creditor of the ancestor;
4 John. 645; though this was formerly doubted.

In the case of the obligor himself, if a judgment be obtained against liini
and he sues out an elegit, and a moiety of the land is extended, and the
rents and profits will not keep down the interest, can the creditor have a
decree for a sale of the premises? Upon principle I should presume so ;
for he who has the entire beneficial interest in any estate, is justly regarded
as the owner; and where the rents and profits will not keep down the in-
terest, it is obvious that the debt must be continually increasing, and that
the creditor will hold perpetually, unless by some fortuitous occurrence the
profits should be increased. It is true the land may be undervalued by the
jury, but if so that would indeed be a motive for refusing a sale, and pro-
bably it would not be decreed if there was reasonable ground to believe that
by any change of the state of things the debt would be discharged out of
the rents and profits within a reasonable time. When there is no such pro-
bability it would be a prejudice both to the party and to the community to
compel the creditor to hold an interest which he would not have the ordinary
incitements to improve. Accordingly we find in the case of a judgment
Hfainst a father who made a fraudulent conveyance to his son, the judgment
creditor who had a lien on one-half of the lands, by virtue of his judgment,
obtained, after the father's death, a decree for the sale of the moiety, Lord
Hardvvicke being of opinion that the creditor was not bound to wait for pay-
ment out of the rents and profits, but was entitled to accelerate the pay-
ment by a sale. 2 Atk. 610. But a sale was directed of the moiety of the
land, but no more,* for his lordship was of opinion that he could not change
the rights of the parties.! This case, then, sufficiently establishes, I think,
the right of the judgment creditor, in some cases, to a sale, while the case
from 6 Mun. 432, seems to limit that right to the case of rents and profits
being inadequate to keep down the interest. Jenkins vs. Sherrard, in the
Winchester chancery court, decided by Carr, C. accords herewith : such has
been, I think, the usual course. There seems, indeed, no assignable rea-
son for a sale, when the heir is bound, which does not apply to the debtor
liimself, after his land is bound by a judgment. In the case of the heir,
liowever, it will be observed that the whole is sold, because the whole is
bound : it is otherwise in the case of the ancestor himself, a moiety of his
lands only being bound by the judgment in his lifetime.

Having thus ahcertained in what cases a court of equity will lend its aid
to a plaintiff at law who meets with embarrassments in the way of his exe-
cution, I proceed to shew succinctly,

* In 1 Leigli, 145. 2 Leigh, 29. 3 Leigh, 317 ; and Tenant vs. P-itton, March, 1K35, io bo hcre-
afier reported, tliis subject of the quantum to be sold lias been adverted to. It seems not yet well

t Where the fraudulent debtor lias taken the insolvent oatii, the whole ia sold of course.


II. What sort of relief is afibrded. This matter has been in some de-
gree anticipated. We may add, liowevor, that in suits broutrht to set aside
fraudulent conveyances vvhicii stand in the creditor's way, if the conveyan-
ces be of personal property, an account and sale is decreed, and the fraudu-
lent donee is made personally responsible for what has been wasted or
eloigned. For if there had been no alienation, the creditor's fifa would
have taken the property, and it would have been sold accordingly ; and
equity places the creditor in the same condition as if the fraudulent deed had
not been made. So if the debtor dies, the fraudulent donees stand in the
light of executors de son tort, and are at once liable to be proceeded against
as such. For the conveyance being as to creditors deemed void, the do-
nees are in possession of property which the law regards as the property of
the decedent, and are therefore looked upon in the light above mentioned.

Online LibraryHenry St. George TuckerCommentaries on the laws of Virginia, comprising the substance of a course of lectures delivered to the Winchester law school: (Volume 2) → online text (page 67 of 95)