Wiswall v. Sampson. ORDER. This cause came on to be heard on the transcript of the record from the District Court of the United States for the District of Texas, and was argued by counsel. On consideration whereof it is now here ordered, adjudged, and decreed by this court, that the decree of the said District Court in this cause be, and the same is hereby, affirmed with costs. JOSEPH WISWALL, PLAINTIFF IN ERROR, v. DAVID SAMPSON, LESSEE OF EDWARD HALL AND EDWARD S. DARGAN. Where real estate is in the custody of a receiver, appointed by a court of chancery, a sale of the property under an execution issued by virtue of a judgment at law, is illegal and void.1 The proper modes of proceeding pointed out, to be pursued by any person who claims title to the property, either by mortgage, or judgment, or otherwise.2 THIS case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of Alabama. *It was an ejectment for the following lot, in the city of Mobile, bounded south by St. Francis street, [*53 and lying between Water and Commerce and Planters streets of the said city, having a front of thirty-five feet on St. Francis street, and extending to Planters street, with the same breadth; bounded east by lands formerly belonging to M. D. Eslava, and west by a lot of Beach, Ela & Co. The declaration contained three counts; two upon a demise from Edward Hall, a citizen of the State of Maryland, and the third a demise from Edward S. Dargan. Although the decision of the court turned upon a single point, it is necessary to connect it with the other circumstances of the case, which are somewhat complicated. 1 APPLIED. Peale v. Phipps, 14 How., 375. RELIED ON. Barton v. Barbour, 14 Otto, 129, 138. CITED. Taylor v. Carryl, 20 How., 596; People's Bank v. Calhoun, 12 Otto, 262; s. c., 1 Morr. Tr., 28; Pulliam v. Osborne, 17 How., 475. 2 See Secombe v. State, 20 How., 107; Savannah v. Jessup, 16 Otto, 565; Burt v. Keyes, 1 Flipp., 68; Walker v. Flint, 2 McCrary, 343; Hazlerigg v. Bronaugh, 78 Ky., 63; Nealis v. Bussing, 9 Daly, 307; Goldzier v. Young, 1 N. Y. City Ct. Rep., 84; Stackhouse v. Wheeler, 17 So. Car., 98. Compare De Visser v. Blackstone, 6 Blatchf., 235; Robinson v. Atlantic &c. R. Co., 66 Pa. St., 160; Hooley v. Gieve, 7 Abb. (N. Y.) N. C., 271. Wiswall v. Sampson. The following table contains a reference to the principal facts bearing upon the respective titles of the plaintiff and defendant. 1840, April 28. Ticknor, being in possession, conveyed the property to Day. *54] *Upon the trial, the following bill of exceptions was taken : Be it remembered, that on the trial of this cause on this 4th day of January, 1849, before the Honorable William Crawford, Judge, the plaintiffs, to show title in their lessors, offered in evidence a judgment rendered in this court on the 28th December, 1840, in favor of C. S. Fowler & Co., against Wiswall v. Sampson. John Ticknor, for $4,991, besides costs; also a judgment rendered in this court, on the 31st December, 1840, in favor of Crouch and Sneed against Jolm Ticknor, $7,176.25 and costs; upon each of which judgments fi. fas. were issued within a year and returned by the marshal, No property found; no other executions or process issued upon either of these judgments, except the following: Upon the judgment of Crouch and Sneed an alias fi. fa. was issued on the 24th February, 1845, and levied on the property sued for, upon which the marshal returned, Levied-and "the sale of the property levied on postponed by Judge E. S. Dargan, until further order." And on the 17th May, 1845, a pluries fi. fa. issued on this judgment and was levied on the same property. Upon the judgment of C. S. Fowler & Co. an alias fi. fa. was issued on the 7th of April, 1845, and levied on the same property, and returned, For want of time to sell. And on the first day of May, 1845, a venditioni exponas issued, upon which and the execution on the Crouch and Sneed judgments, issued the 17th May, the property was sold by the marshal on the 7th July, 1845, to Edward S. Dargan, for $7,500; and a deed was made by the marshal to said Dargan, bearing date the thirteenth of August, 1845. The plaintiff further offered in evidence a deed of release and quitclaim of the same premises, from Edward S. Dargan to Edward Hall, one of the lessors, bearing date the 3d of April, 1848, a copy of which is hereto attached, marked X; to the reading of which the defendant, by his attorney, objected, on the ground that it was neither acknowledged nor recorded; but the objection was overruled by the court, and the deed admitted in evidence upon the proof of the handwriting of Dargan, and the defendant excepted. The plaintiff further offered evidence to show that John Ticknor was in possession of the property sued for from 1838 or 1839 claiming title, and that he remained in possession until about 1845; but whether, after 1840, Ticknor claimed it as his own, or held possession as the tenant of some one else, witness did not know. It further appeared that Ticknor built the store; that in 1839 or 1840, he became embarrassed, and that he owed a large sum of money to one James L. Day, and from some time in 1840 carried on business in the store as the agent of said Day. Day was often there and had the control, but Ticknor managed all the details. It was further proved that McCoy and Johnson, *the tenants served with the declaration, were in possession of the premises in April, 1848, and had been in possession since November, 1847. [*55 The defendant then offered in evidence a judgment obtained Wiswall e. Sampson. in the Circuit Court of Mobile County, on the 14th day of June, 1842, in favor of Joseph Wiswall against John Ticknor, for the sum of $2,233.17, besides costs; and a fi. fa. issued thereon the 1st July, 1842, returnable to the fall term of said court, which was returned by the sheriff, No property found; also the transcripts from the records, duly certified, of a deed made by John Ticknor to James L. Day, bearing date the 28th of April, 1840, a copy of which is annexed, marked A; also the exemplification of a decree and proceedings in a suit in chancery, filed the 7th of February, 1843, by Joseph Wiswall, as a judgment creditor of John Ticknor, against said Ticknor and James L. Day; a copy of which bill, answers, and decrees, are hereto annexed, marked B; also a decree and proceedings in the same court of chancery upon a bill filed March 1st, 1845, by the president, directors, and company of the Bank of Mobile, James Stewart, and Henry Lazarus, several judgment creditors of said Ticknor, and against said Ticknor and James L. Day, which bill was similar in its form and object to the bill of Wiswall, and was served on the defendant, Ticknor, on the 1st March, 1845; a copy of the answer of Day, and the decree, is annexed, marked C. The defendant then proved that Waring, the receiver of the Court of Chancery in the above two suits, went into the possession of the property sued for on St. Francis street, as such receiver, on the 27th day of June, 1845, and remained in possession as such receiver until the same was sold by him on the first Monday of March, 1847; that notice was given at the marshal's sale, when the property was bid off by Dargan, of the pendency of the above-named suits in chancery, and the claims of the complainant there asserted, and that he was, as receiver aforesaid, then in possession of said property under the decrees in chancery in the above suits. The property was duly sold by the receiver on the 1st day of March, 1847, to K. B. Sewall for six thousand five hundred dollars, and a deed of the same made to him by the said receiver and master in chancery; and on the tenth day of May, 1847, the same was conveyed by said Sewall to the defendant, Joseph Wiswall; it was also shown that the purchaser from the receiver went into possession, and that the whole amount of the purchase-money was paid and appropriated under the directions of the Court of Chancery. The defendant then offered in evidence the transcript of a decree and proceedings had in a court of chancery, in Mobile, *upon the petition of Edward S. Dargan against Moses *56] Waring, receiver, Joseph Wiswall, John Ticknor, and James L. Day, a copy of which is hereto annexed, marked Wiswall v. Sampson. Exhibit D; which decree had been affirmed by the Supreme Court; C. Cuyler, the deputy marshal who made the sale to Dargan, testified that no money whatever was paid upon said sale, but that Dargan gave his note to the marshal for the costs. John F. Adams testified that he acted as the attorney of C. S. Fowler & Co., in recovering their judgment in this court, and had ever since represented said judgment; and that E. S. Dargan, from some time prior to the marshal's sale, represented the judgment of Crouch and Sneed; that it was agreed between said attorneys, Adams and Dargan, representing said judgments, that the land should be sold upon them, and bid off in the name of Dargan, and that if the title thus acquired should enable Dargan to recover the property, the judgment of C. S. Fowler & Co. should be paid out of it; but that if the property should not be recovered by such title, then the sale was to be considered a nullity, and no money to be paid whatever on acccunt of it; and that this was the understanding of Adams, but that after the sale he yielded to the views of Dargan, and signed a memorandum to the effect that Dargan should be a trustee for the parties. It was further in evidence that with the arrangements between Dargan and Adams there was no connection on the part of Ticknor, the defendant in the judgment, and no assent was given by him to them. Adams also testified that, as the representative of the judg ment of C. S. Fowler and Co., he entered a motion in this court at the spring term, 1847, to amend the marshal's return made upon the execution in that case, to show that no money was in fact paid on said bid of Dargan; and said motion was produced and read to the jury, and is still pending and undetermined. Defendant then offered to read a bill filed in the Chancery Court of Mobile, on the 18th February, 1847, in the name of David A. Hall, assignee in bankruptcy of C. S. Fowler & Co., against John Ticknor, James L. Day, Moses Waring, receiver, Joseph Wiswall, Bank of Mobile, James Stewart, and Henry Lazarus, the object of which bill was to reach and have appropriated to the payment of said judgment of C. S. Fowler & Co. the proceeds of the sale of the property to be made in that court upon the bill of said Wiswall and others; said bill was filed by J. F. Adams, as solicitor of the parties, and sets forth, among other things, the following: "That the said premises were sold on the 1st of July, 1845, by the marshal, to Edward S. Dargan, for the nominal sum of $7,500, and the marshal executed to said Dargan his formal deed |