UNITED STATES SUPREME COURT DECISIONS ON-LINE

The principle of the common law undoubtedly is that no property but that in which the debtor has a legal title is liable to be taken in execution, and accordingly it is well settled in the English courts that an equitable interest is not liable to execution. In the United States, different views have been taken of this question in the courts of the several states. Except as against the mortgagee, the mortgagor is regarded as the real owner of the property mortgaged, and this rule has very extensively prevailed in the states of the United States that an equity of redemption is vendible as real property on an execution and that it is also chargeable with the dower of the wife of the mortgagor.

The equity of redemption of a mortgagor of land in that part of the District of Columbia ceded by the State of Maryland to the United States cannot be taken in execution under a fieri facias. At the time of the cession to the United States, the rule of the common law was the law of Maryland.

It is not necessary to refer to authorities to sustain a proposition that a chose in action is not liable to be levied on by a fieri facias.

In November, 1836, the appellant filed a bill in the circuit court against Alpheus Hyatt and others. The following were the important facts in the case, as sustained by the evidence:

In December, 1818, William Cocklin leased to James Shields a lot of ground in the City of Washington, for ten years from January 1, 1819, for the rent of thirty-five dollars per annum. The lessee covenanted to erect and build within twelve months a two-story brick house upon the lot, and the parties agreed that if at or before the expiration of the lease, the lessee should pay to the lessor the sum of three hundred and seventy-five dollars, the rent should cease, and so if a portion or part of the sum of three hundred and seventy-five dollars should be paid within the time, the rent should be diminished according to the sum or sums paid. On the payment of the whole of the sum, William Cocklin was to make to the lessee a good and sufficient title in fee simple to the lot.

James Shields, on 23 September, 1823, mortgaged the lot and improvements upon it to John Franks, to secure a debt of $1,127, and on 7 May, 1825, the mortgagee assigned all his right and title under the mortgage to Alpheus Hyatt, one of the appellees, and on 9 May, 1825, James Shields released all his interest in the lot to Alpheus Hyatt for the consideration of two hundred dollars. Subsequently, in May, 1826, Alpheus Hyatt, having paid to the heirs and representatives of William Cocklin the whole sum of three hundred and seventy-five dollars and the intermediate rent, they released to him the premises and conveyed to him in fee simple all their right, title, and property in the same.

On 8 November, 1823, John P. Van Ness, the clubjuris

Page 38 U. S. 295

appellant, obtained, before a magistrate of the County of Washington, a judgment for thirty dollars and twenty-five cents against James Shields, and he caused a fieri facias to be issued on the judgment on 10 June, 1824, under which a levy was made by the constable having the process, on the right, title, interest, estate, and claim of James Shields in and to the lot originally held by him under the lease and agreement with William Cocklin. The property levied upon was sold by the constable under the process for the sum of fifty-four dollars, on 10 July, 1824, and John P. Van Ness, the appellant, became the purchaser thereof on 19 August, 1825; the constable conveyed the premises sold by him, to the appellant, by a deed of indenture which was recorded on 9 January, 1826.

The appellant having filed his bill stating all the facts, and alleging the conveyances made by Shields and Franks, and the heirs and representatives of William Cocklin to have been erroneous and fraudulent, and averring his full readiness to pay the heirs and representatives of William Cocklin, or to the representatives of Franks, all that Shields was bound to pay to them; prayed a decree that the property should be assigned to him, and that he should be quieted in the possession of the same, and for general relief.

There was no evidence to support the allegations of fraud stated in the bill, nor was there any proof given of notice to the appellees of the same. The answers, as far as they were responsive to the bill, and the several exhibits with the bill and the answers, were the only proofs in the cause.

The circuit court, after a hearing of the parties by their counsel, dismissed the bill with costs; and the complainant prosecuted this appeal. clubjuris

Page 38 U. S. 296