Opinion
10-08-1873
GATEWOOD'S adm'r v. GOODE & als.
Skeen, Sheffey & Bumgardner, for the appellant. Pendleton, for the appellee.
At the March term 1861, of the county court of Monroe, a judgment was rendered at the suit of the bank of V plaintiff against W. S and G, the latter living in the county of Bath. Execution of fi. fa. was issued on this judgment and levied on the property of W, and the sheriff returned, after June 1861, a levy upon the personal property of W, that the property was appraised and offered for sale, and not bringing valuation it was returned. G died during the war, leaving real estate in Bath county, and also in West Virginia; and after his death some of his creditors filed their bill in the Circuit court of Bath, to subject his real estate to the payment of his debts. The commissioner reported the above judgment as a debt by judgment having priority. A copy of the judgment was certified by the clerk of Monroe Circuit court, " and as such, keeper of the records of Monroe county court, and which by law are a part of the records of my office." The Circuit court confirmed the report. HELD:
1. The judgment constituted, as between the parties thereto, a lien on the real estate in Virginia belonging to the judgment debtors or any of them, whether the said judgment was docketed in the counties in which the real estate might be or not.
2. That the lien was not discharged by the levy of the execution upon the property of W, one of the debtors, by the sheriff of Monroe county; nor was the execution satisfied by the act of the sheriff, returning the property so levied on to W, in obedience to the ordinance of the Virginia convention of 1861, whether such ordinance was valid or not; said act of the sheriff being entirely his own act, neither prompted nor assisted by the plaintiff in the judgment.
3. That the lien of said judgment on the lands of G, in Bath county, was neither lost nor impaired by reason of the division of the State of Virginia into two States, and the falling of the county of Monroe into the State of West Virginia.
4. That the certificate of the clerk of the Circuit court of Monroe county, in West Virginia, of the records of which court the records of the former county court of Monroe form a part, was proper evidence of such judgment; and there appearing no other judgment binding said lands, or any debt of G of superior dignity, there was no error in the decree.
Samuel V. Gatewood, of the county of Bath, died some time during the late war, seized of real estate in said county, and also in the county of Pocahontas in West Virginia. In his life time an action of debt had been instituted in the County court of Monroe county by the Bank of Virginia against Wm. L. Lewis, S. P. Lewis and himself; and at the March term of the court for 1861, there was an office judgment confirmed against them for $2500, with interest from July 18th, 1860, and notary's fees and costs amounting to $8.65. On this judgment execution was sued out against all the defendants, which went into the hands of the sheriff of the county; on which he, after June 1861, returned the receipt in payment of $1,000, and a levy upon personal property of Wm. L. Lewis; naming it; that the property was appraised and offered for sale; and not bringing valuation, it was returned.
After Gatewood's death Samuel Goode and others, creditors of Gatewood, filed their bill in the Circuit court of Bath county, against his administrator and heirs, to subject his real estate to the payment of his debts; and in the progress of the cause a commissioner was directed to take an account of the debts and their priorities. The only questions in this case relate to the aforesaid judgment of the Bank of Virginia against the Lewis's and Gatewood. This judgment had not been docketed. A copy of the record of the judgment was certified by the clerk of the Circuit court of Monroe county, who stated in his certificate, that as such clerk he was keeper of the records of Monroe county court, which by law were a part of the records of his office. This judgment the commissioner reported as a debt of the first class, and it amounted on the 1st of January 1870 to $2,484.95, of which $1,634.74 was principal.
The cause came on to be heard on the 14th of May 1872, when the court confirmed the report of the commissioner; and it was decreed that the special receiver in the cause should proceed to pay the debts of the intestate according to their respective priorities. And thereupon Gatewood's adm'r applied to this court for an appeal; which was allowed.
Skeen, Sheffey & Bumgardner, for the appellant.
For the purposes of the suit, as it stood in the court below, the judgment of the President and Directors of the Bank of Virginia v. W. L. Lewis, S. V. Gatewood, & c., cannot be regarded as a judgment of the State of Virginia, but must be regarded as a judgment of a foreign State, not conclusive, but subject to such defences as are received against judgments of that class.
The judgment is certified by the clerk of the Circuit court of Monroe county, in the State of West Virginia, and the certificate is certified to be in due form according to the law of West Virginia, by a judge of West Virginia. Such certificates are only competent evidence to prove it as a judgment of the State of West Virginia. As a Virginia judgment it is not proven at all. The certificates of clerks and judges of other States are not competent evidence to prove the judgments of the courts of Virginia. If a judgment of the State of Virginia, it is not legally proven, and the report stating it as a debt is erroneous. If a foreign judgment, the report is erroneous in stating it as a preferred debt against the estate of S. V. Gatewood: and on either grounds it was erroneous to confirm the report.
But the debt must be regarded as satisfied, at least, as regards the estate of S. V. Gatewood. Execution was issued from the office of the County court of Monroe on the 21st day of March, 1861, and upon that execution the following return was made by the officer: " Levied the within execution upon the following property of William L. Lewis, as per statement attached hereto, to wit: Six horses, & c., the property appraised and offered for sale, and not bringing valuation was returned."
This return was made by the officer in undertaking to pursue section 3d of the ordinance of the convention passed April 30, 1861, and which is found in the (Richmond) Acts of Assembly of 1861, among the ordinances, page 34. This ordinance is unconstitutional, null, and void, because it clearly impairs the obligation of contracts.
This ordinance is similar in its general scope and design to the stay law of North Carolina of May 11th, 1861, and that of Missouri of March 7th, 1861, both of which were declared unconstitutional, the first in the case of Barnes v. Barnes, 8 Jones R. (N. C.) 366. The latter in the case of Stevens v. Andrews, 31, Missouri R. 205
It is in sustance identical with the act of Indiana, which was considered by the Supreme court of the United States in the case of McCracken v. Hayward, 2 How. U. S. R. 608, except that the ordinance required sale at full valuation according to what would have been its value on the 6th of November, 1860. The Indiana act required sale at two-thirds of the amount of valuation. In McCracken v. Hayward, in which case the case of Bronson v. Kinzie, 1 How. U. S. R. 311, to the same effect, was reviewed and approved, the court held the Indiana act to be unconstitutional. The cases on this subject are collected and considered in Cooley, Const. Lim. page 290.
The ordinance being unconstitutional, the return made by the officer was illegal; and his act in restoring the property to the principal debtor was official misconduct for which he is answerable to the same extent and in the same way, and which has the same effect upon the parties to the execution as if the ordinance had never been passed. Cooley, Const. Lim. 188; State of Missouri v. Gatzweiler, 49 Missouri R. 17, State v. Bradford, 44 Georgia R. 417; Brown v. Henderson, 1 Missouri R. 134.
The sheriff, in pursuing this ordinance, is to be held to the same responsibility, and his acts have the same effect upon the rights of the parties to the execution as though no such act had ever been passed.
In this case the execution was levied upon property of the principal debtor, ample in value to discharge the debt, and the sheriff returned the property to the owner of his own mere notion, without consent of the endorsers. Had the property been sold, as the sheriff was bound to do, the debt would have been paid and the sureties exonerated from liability.
According to the general doctrine " that the levy of an execution upon sufficient property to discharge it, is a satisfaction," as explained and modified in this court in this case of Walker & als. v. Commonwealth, 18 Gratt. 13, this execution as against the estate of S. V. Gatewood is satisfied.
In this case the court says " the sureties are interested in having the property of their principal, thus specifically bound for the payment of that debt, applied to that purpose in their exoneration, in whole or in part, according to the value of the property. They also have a right to be consulted by the plaintiff in giving up the levy, and must consent thereto in order to make them liable to a new execution, at least, without having credit for the amount of the first levy." An further on: " But if the property levied on be lost to the defendant by the misconduct or neglect of the sheriff, the execution is thereby satisfied, and the plaintiff can then only look to the sheriff for indemnity." * * * " If that property be lost by the default of the officer of the law, who in this respect may be said to be the agent of the plaintiff, and without the consent of the defendant, it is reasonable and proper that the loss should not fall on the defendant." Then by parity of reasoning it must follow, that where property of the principal debtor sufficient to satisfy the execution, has been levied on, and the sheriff, by his misconduct, without the consent of the sureties who " are interested," as this court says, " in having the property of their principal, thus specifically bound for the payment of that debt, applied to that purpose in their exoneration," has returned the property to the principal debtor, " it is reasonable and proper that the loss should not fall" on the sureties, whose valuable interests have been destroyed by the unwarrantable act of the sheriff, " and that they should be held as not subject to a new execution; and that the plaintiff in such a case should be turned over to his remedy against the sheriff, for his misconduct and default, who in this respect may be said to be the agent of the plaintiff," or resort to the principal debtor, as to whom the execution should not be regarded as satisfied, inasmuch as the property was returned to him, necessarily with his consent, and as he has sustained no injury by the action of the sheriff.
Pendleton, for the appellee.
Did the levy made on Lewis' property in 1861 release Gatewood?
This effect is claimed on the ground that the ordinance of the convention of April 30, 1861, was unconstitutional and void.
It is claimed by the appellees that during the period from the 17th of April 1861, to the 4th Thursday in May, 1861, at least, the State of Virginia was not subject to the restraints of either the Federal or the Confederate States constitutions. The State of Virginia, during that period had, by her declared act of secession, resumed her separate sovereignty, was an active belligerent, holding actual possession of her soil by force of arms, and had forces in the field sufficient to make good her pretensions. Her own constitution and laws were then supreme over her territory and people. United States v. Rice, 4 Wheat R. 246; Fleming v. Page, 9 How. U. S. R. 614. In Thorington v. Smith, 8 Wall, U. S. R. 1, the court say: " to the extent then of the actual supremacy, however unlawfully gained, in all matters of government within its military lines, the power of the insurgent government cannot be questioned; " and on p. 13, " the inhabitants must be regarded as under the authority of the insurgent belligerent power actually established as the government of the country, and contracts made with them must be interpreted and enforced with reference to the condition of things created by the acts of the governing power." That the counties of Monroe and Bath were during that period within the military lines of the troops of Virginia is a part of the public history of the war.
The third section of the " Ordinance to provide against the sacrifice of property and to suspend proceedings in certain cases," passed April 30, 1861, provides:
" If the debtor offers no such bond, (the stay bond provided for in the preceding section,) it shall be the duty of the officer to convene three freeholders from the vicinage, who, after being sworn, shall proceed to value the property according to what would have been its value on the sixth day of November 1860; and unless the said property shall sell for the full amount of such valuation, it shall be restored to the debtor without lien."
Can there be a doubt as to the authority, validity and binding force of this ordinance? It emanated from a body composed of the wisest citizens of the Commonwealth, representing immediately and peculiarly the sovereignty of the people, chosen for the performance of the most important functions, in a time of great public peril. Their legislation, in the sacredness and supremacy of its authority, is twin sister to the organic law of the Commonwealth.
The clause under consideration in no manner undertakes to impair the obligation of coutracts, but merely protects the citizen against an undue sacrifice of his property by regulating the exercise of the remedy. It is not obnoxious to any constitutional inhibition. It is entirely within the competency of ordinary legislative power, and a fortiori was within the competency of a convention immediately representing the sovereignty of the people. It seems to me to be a very mild application of the maxim, " Salus populi suprema lex, " which has been held at all times to authorize an interference even with the rights of property, ob publicam utilitatem, both under the common and civil law. 2 Kent Com., 339,--(4th edition); Puffendorff De Jure Nat. B. 8, ch. 5; Plate Glass Co. v. Meredith, 4 T. R., 794. %7 F‘ Alibi diximus res subditorum sub eminenti dominio esse civitatis, ita ut civitas. aut qui civitatis vice fungitur, iis rebus uti, easque etiam perdere et alienare possit, non tantum ex summa necessitate, quæ privatis quoque jus aliquod in aliena concedit, sed ob publicam utilitatem, cui privatas cedere illi ipsi voluisse sensendi sunt, qui in civilem cœ tum coierunt. " GROTIUS, De Jure Belli et Pacis, B. 3, ch. 20, s. 7.
The discretion to determine when the state of things exists which justifies the rousing into active energy of this ordinarily dormant but inherent power of sovereignty, must necessarily reside in the political department of the State, and can never be properly the subject of judicial revision.
If the ordinance of April 30, 1861, needed further legislative sanction, it is to be found in the act of Assembly passed March 29, 1862, (Sess acts, pp. 95, 96, 97.) Section 8 of this act repeals the ordinance, but provides that such " repeal shall not affect any right established, accrued or accruing under, or remedy or relief provided by the second, third and seventh sections of said ordidance."
The return of the sheriff of Monroe county on the writ of fi. fa. issued in 1861, is in these words: " Levied the within execution upon the personal property of William L. Lewis, as per statement attached hereto, to wit: six horses, & c." " The property appraised and offered for sale, and not bringing valuation, was returned." This return brings the case clearly within the above quoted section of the ordinance. The levy was nullified by the ordinance, and therefore could not operate a satisfaction of the judgment.
But even if this court should hold that the ordinance was null and void, it is confidently claimed that the levy made by the sheriff of Monroe did not in any manner satisfy or affect the judgment of the Bank of Virginia v. Gatewood. Where property even of sufficient value to satisfy the execution, is levied on and returned to the defendant, it is plain there is no satisfaction of the writ, either actual or technical. There must be either a sale or a destruction of the defendant's interest in the property levied on to accomplish this result. Walker v. The Commonwealth, 18 Gratt. 13, and cases there cited. Walker v. McDowell, 4 Smedes & Marsh R. 118.
If there was no satisfaction of the execution, then the only other mode by which the Bank of Virginia could have lost its recourse on Gatewood was by reason of some act or proceeding on its part in derogation of his rights as a surety. Now, in the first place, there is no proof in the record that Gatewood occupied the position of a surety for Lewis. An endorser is not unfrequently the principal debtor, and the Bank had the right to single Gatewood out and sue him alone.
But admitting, for the sake of the argument, that Gatewood was a mere surety, what ground is there for complaint that the Bank did any thing to his prejudice? Nothing of the kind is shown or pretended. The Bank proceeded regularly to obtain its judgment, issued its execution and caused it to be levied on the property of Lewis. It made no agreement with Lewis for indulgence, and gave no directions to the sheriff as to the disposition of the property levied on. If the property was returned to Lewis it was through no agency of the Bank. If the benefit of the levy was lost, it was not only through no laches of the Bank, but in spite of its efforts to the contrary. Gatewood was not hindered from indemnifying the sheriff and compelling him to sell, nor from filing his bill quia timet. By his silence he acquiesced in the return of the property to Lewis. If the ordinance was unconstitutional and void, and the release of the levy therefore illegal, it was as much the duty of Gatewood as of the Bank to incur the expense and trouble of making the levy effectual. Will the court now permit his administrator to take advantage of his own negligence? See Norris v. Crummey, 2 Rand. 323; McKenney v. Waller, 1 Leigh 434; Alcock v. Hill, 4 Leigh 622; Humphrey v. Hitt, 6 Gratt. 509. Suppose a judge ment creditor should refuse to indemnify a sheriff who has levied on property claimed by a stranger, and it should turn out that the title to the property was really in the defendant in execution, would he thereby lose his recourse on the surety? In other words, is he bound at the peril of losing his rights against the surety to indemnify the sheriff in all cases? I know of no case which goes this length.
OPINION
BOULDIN, J.
The court having maturely considered the transcript of the record of the decree aforesaid, and the arguments of counsel, is of opinion:
1st. That the judgment of the bank of Virginia in the proceedings mentioned, constituted as between the parties thereto, a lien on all the real estate in Virginia, belonging to the judgment debtors or any of them, whether the said judgment was docketed in the counties in which the real estate might lie or not.
2d. That this lien was not discharged by the levy of the execution in the proceedings mentioned, made on the property of W. L. Lewis, one of the debtors, by the sheriff of Monroe county, in the county court of which county the judgment was rendered; nor was the execution satisfied by the act of said sheriff, returning the property so levied on to said Lewis, in obedience to an ordinance of the Virginia convention of 1861, whether such ordinance was valid or not; said act of the sheriff having been entirely his own act, neither prompted nor assented to by the plaintiff in the judgment.
3d. That the lien of said judgment on the lands in the proceedings mentioned, was neither lost nor impaired by reason of the division of the State of Virginia into two States, and the falling of the county of Monroe into the State of West Virginia.
4th. That the transcript of the record of said judgment, duly certified by the clerk of the Circuit court of Monroe county, in West Virginia, of the records of which court the records of the former county court of Monroe county, Virginia, now form a part, was proper evidence to establish the existence of such judgment; and there not appearing to be any judgment prior thereto binding on said lands, nor any debt against Samuel V. Gatewood, dec'd, of superior dignity to said judgment, there was no error in reporting and providing for said judgment as a first class debt.
The court is, therefore, of opinion that there is no error in the decree complained of; and it is decreed and ordered that said decree be affirmed, and that the appellant, William Skeen, as administrator of Samuel V. Gatewood, dec'd, do, out of the assets of his intestate in his hands to be administered, pay to the appellees their costs by them about their defence in this behalf expended, and thirty dollars damages to the president, directors and company of the bank of Virginia for the owner or owners of said judgment.
All of which is ordered to be certified to the Circuit court of Bath county.
DECREE AFFIRMED.