Pulliam v. Osborne

Mr. Justice CAMPBELL delivered the opinion of the court.

This was áñ issue in the-district court, under a statute of Alabama, (Clay’s Digest, 213, §§ 62, 64,) for the trial of the *475 right to property taken under an execution from that court, in favor of the appellee, and claimed by the testator of the appellant, as belonging to him, and not to the defendant in the execution.

It appeared on the trial that, at the delivery of the execution to the marshal, in favor of the -appellee, the property belonged to the defendant, and that the levy was made before the return day of the writ; but that, before this levy, the property had been seized and sold to the claimant, b.y a sheriff in Alabama, under executions issued from the state courts, upon valid judgments, after the teste and delivery of the executions from the district court.

The district court instructed the jury, that a sale under a junior execution from the state court did not devest the lien of the execution from the district court, and that the writ might be executed, notwithstanding the seizure and sale under the process from the state court.

The lien of an execution, under the laws of that State, commences from the delivery of the writ to the sheriff, and the lien in the courts of the United States depends upon the delivery of the writ to their officer. But no provision is made by the statutes of the State or United States for the determination of the priorities between the creditors of the respective courts, state and federal. They merely provide for the settlement of the priorities between creditors prosecuting their claims in the same jurisdiction.

The demands of the respective creditors, in the present instance, were reduced to judgments, and the officers of either court were invested with authority to seize the property.

The liens were, consequently, coordinate or equal; and, in such eases, the tribunal which first acquires possession of the property, by the seizure of its officer, may dispose of it so as to vest a title in the purchaser, discharged of the claims of creditors of the same grade.

This court applied this principle (Williams v. Benedict, 8 How. 107 ) to determine between judgment creditors in a court of the United States, and an administrator holding under the orders of a probate court of a State ; in Wiswall v. Simpson, 14 How. 52 , in favor of a receiver holding under the appointment of a court of chancery of a State and a judgment creditor; in Peale v. Phipps, 14 How. 368 , in favor of a trustee in possession, under the order of a county court, against such a creditor; and in Hagan v. Lucas, 10 Pet. 400 , between execution creditors issuing from state and federal jurisdictions. The same principle has been applied, in several state courts, in favor of the purchasers at judicial sales of steamboats, arid other *476 crafts subject to liens in the nature of admiralty liens. Steamboat Rover v. Stiles, 5 Black. 483 ; Steamboat Raritan v. Smith, 10 Mo. 527 ; 19 Ala. 738 ; and is recognized in the courts of common law and admiralty in Great Britain. 4 East. 523;

2

Wms. Ex’rs, 888; The Saracen, 3 W. Rob.

In Alabama, the bond fide purchaser’at a judicial sale, made to enforce a statutory lien, takes the property discharged of liens of the same description, whether the subject of sale be land or personal property. Wood v. Gary, 5 Ala. 43 ; 12 Ib. 838; 11 Ib. 426. The propriety of the rule is fully vindicated by the statement in Hagan v. Lucas, 10 Pet. 400 , where this court says : “ A most injurious conflict of jurisdiction would be likely often to arise between the federal and state courts, if the final process of the one could be. levied on property which had been taken by the process of the other. The marshal or the sheriff, as the case may be, acquires by a levy a special property in the goods, and may maintain an action for them. But if the same goods may be taken in execution at thé same time, by the marshal and the sheriff, does this special property vest in the one or the other, or both of them ? No such case can exist; property once levied on remains in the custody of the law, and it is not liable to be taken by another execution in the hands of a different officer, and especially an officer acting under a different jurisdiction.”

The instruction of the district court is erroneous, and its judgment is therefore reversed and cause remanded.

Order.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the southern district of Alabama, and was argued by counsel. On con- . sideration whereof, it is now here ordered, and adjudged by this ' court, that the judgment of the district court of the United States for the middle district of Alabama in this cause be and the same "is hereby reversed with costs, and that this cause be and the same is hereby remanded to the said district court of the United States for the middle district of Alabama, with directions to award a venire facias de novo.