
    GENERAL COURT,
    MAY TERM, 1793.
    Christopher Court & Co. against Isaac Vanbibber, terretenant of Mark Alexander.
    
    ON the 31st of December, 1788, a writ of scire facias issued out of the general court, against the terretenants of Mark Alexander, on a judgment rendered against the said Alexander in the provincial court, at April term,, 1775, in favour of the present plaintiffs, which scire facias was served on sundry terretenants of the said Alexander, and among others the present defendant, who appeared and separately pleaded payment.
    By a case stated and filed at May term, 1791, the facts-appear to be, that
    
      Mark Alexander, at the time the judgment was rendered against him, was seised in fee of a part of a lot of' ground, No. 48. lying in Baltimore town. That he, by deed dated the 30th of January, 1777, conveyed to Jesse Hollingsworth a certain part of the said lot. Also, by his deed dated the 20th of January, 1780, he conveyed the said ground (except the part conveyed as aforesaid to Jesse Hollingsworth) to Henry Wilson, Gerard Hopkins and John Stump, who, by deed dated the 22d of Januaryy 
      ' 1780, made partition of the said part of the lot so granted to them.
    ^ Henry Wilson, by deed bearing date the 21st January, 1784, conveyed that part of the said lot allotted to him as his share to Isaac Vanbibber, who now holds the same in fee-sim pie, and is terretenant thereof.
    That at a provincial court held at the city of Amiapolis, on the 19th of April, 1775, a judgment was obtained by the plaintiff against the said Mark Alexander, for the sum of 796/. Is. 6d. sterling, damages, and 555lbs. tobacco, costs of suit; at which time the said Alexander was seised in fee of the property so granted by Henry ■Wilson to Isaac Vanbibber.
    
    That on the 19th of April, 1775, the said Christopher Court £s? Co. were subjects of the King of Grefa.Britain, and that on the 16th of March, 1781, before AU* len !£>uynn, Esquire, one of the justices of the peace of the state of Maryland for Anne Arundel county, the said Mark Alexander duly made affidavit “ that he is owing unto Mildred Es? Roberts, of the city of London, merchants, for a debt contracted before the first of September, 1776, the balance whereof, on the 31st of December, 1772, was-527/. 15s. 7d. sterling, and for which he passed his bond some time in the ensuing year; and that he is also owing unto Christopher Court Co. of the city of London, merchants, for a debt contracted before the 1st of September, 1776, the balance whereof, on the 16th of August, 1772, was 776/. 14s. 2d. sterling, and that the said Mildred Es? Roberts, and the said Christopher Court Es? Co. have not, since the said 1st of September, 1776, become subjects and residents of this or some one of the United States, and that they have not had an attorney in fact, acknowledging himself as such, for the purpose of receiving debts always since that time, and constantly .residing within this state since the said 1st day of September, 1776, made oath on the holy Evangely of Almighty God, that he hath received for debts due to him before the 1st day of September, 1776, in bills of credit issued by congress, or emitted by resolves of convention, to the amount of above the sum of 1,500/. current money, and that he hath not paid for debts due by him before that, above the sum of 500/. current money. And the said Mark Alexander further made oath, that before the 20th of April, 1779, he sold property for the purpose of paying his debts aforesaid, by him as aforesaid contracted with the said Mildred £s? Roberts and Christopher Court £s? Co. as aforesaid, before the 1st of September, 1776, and that he.left 200/. current money, part of the purchase-money, in the hands of the purchasers, where it now remains, for the purpose of paying his said debts to the said Mildred &? Roberts and Christopher Court £s? Co” Then follows a list of property sold, to the amount of 2,000/.; which oath the Mark Alexander, on the same day and year, ¡lodged with the treasurer of the Western Shore of Maryland, and on the said day and year paid to the said treasurer as aforesaid, the sum of 799/. 10s. 9 1-2d. sterling money, in the bills of credit emitted by the congress of the United States, and made payable by the act of assembly entitled “ An act for calling out of circulation the quota of thiá state of the bills of credit emitted by acts of assembly under the old government, and by resolves of the convention.”
    That the said Alexander lodged the aforesaid sum of money with the treasurer on account of and in discharge and payment of the sum of money and costs due by the aforesaid judgment, and on the same day and year took the following receipt, signed by the treasurer, to wit: “ The state of Maryland acknowledges the receipt of 1,933/. 6s. 8d. currency, from Mark Alexander, on account of Christopher Court, agreeably to an act, entitled ‘ An act for calling out of circulation the quota of this state of the bills of credit emitted by acts of assembly under the old government, and by resolves of convention,’ made and passed at a session of assembly begun and held at the city of Annapolis, on the 17th of October, 1780.”
    That on the 28th day of June, 1776, a convention of delegates of Maryland made and entered into the following resolution, viz.
    “ Resolved unanimously, that the deputies of this colony attending in congress, or a majority of them, or any three or more of them, be authorized and empowered to concur with the other United Colonies, or a majority of them, in declaring the United Colonies free and independent states.” And that on the 4th of July, 1776, made the declaration of independence, which declaration is inserted in the case stated.
    That a war was carried on between the United States of America and the King of Great Britain, from the said 4th day of July-, 1776, until the 3d day of September, 1783, on.which day peace was concluded between the United States and the King of Great Britain; that the definitive articles of the treaty of peace were made-on the said 3d day of September, 1783, which treaty is inserted in the case stated, and among other articles contains the following : “ Art. 4. It is agreed that creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money, of all bona jide debts heretofore contracted.
    It was also agreed that if, on the statement of facts, the court should be of opinion that the plaintiffs have a right to their execution, that then jiat with costs should be entered, to be released on payment of such sum as the court shall determine to be due ; but if the court should be of opinion that the plaintiffs have not a right to their execution, then judgment to be entered for the defendant.
    It was also agreed, that each party should have a fight to appeal from the judgment and opinion of the court, and on such appeal, to have the same advantage of the facts stated, as if a jury had been sworn in the cause, and the facts had appeared in a bill of exception taken at the trial, or as if they appeared in special verdict found in the cause.
    The question before the court was, whether the lien-on the real estate of Alexander by the judgment is preserved by the treaty of peace between America and Great Britain, and the land bound in the hands of the defendant.
    
      Cooke, for the plaintiff.
    Martin, (Attorney-General,) S. Johnston and Robinson, for the defendant.
    
      In the Court of Appeals.
    
      S. Johnston, for the appellant.
    On the case as stated, the point before the court is, whether the judgment was alien on the property purchased by the defendant?
    I shall not here contend that the judgment was not in force against the person and property of Mark Alexander, either of which might be taken in execution after the treaty of peace, to satisfy this debt, because that point is now under the consideration of the court.
    But I shall contend that the property purchased from him, and afterwards sold, was exonerated and discharged from the lien on it by the said judgment, by the payment of the money into the treasury, and could not after-wards be revived so as to affect an innocent purchaser under the confidence of the act of November, 1780.
    
    
      
      
         See the case of Dulany v. Wells, ante, p. 20.
    
   The Court

were of opinion that the treaty had the same operation as if no law had passed authorizing payments into the treasury j and, therefore, all acts done in virtue of said act of assembly were void; and therefore gave judgment, upon the case stated, for the plaintiff, that execution be awarded for the damages and costs recovered in the original judgment, and costs on the scire facias, to be levied of the part of the said lot of which the defendant admitted himself to be tenant. Interest from the 4th of July, 1776, to the 3d of September, 1783, to be released.

The defendant appealed to the court of appeals.

I shall readily admit, that by the common law in England, lands of defendants are bound by judgments if held in fee-simple, and may be taken in execution; 2 Inst. 395. even though aliened bona fide, before execution sued, (30 Ed. III. 24.) from the time of signing the judgment by 29 Car. II. c. 2, 3. 3 Com. Dig. 298. But the only remedy at common law on a judgment whereby land could be taken in execution, was by levari faciqs, whereby the plaintiff could only take the present profits of the land and rents then due, 3 Coke, 11. b. 12. a; and also the goods and chattels of the defendant; but the lands could not be delivered in execution., Lands were not at any time subject to be taken by fieri facias in England. By the statute of Westm. 2. c. 18. a moiety of the lands of the defendant may be extended, and the goods of the party (except as therein excepted) by ek and the plaintiff holds that moiety until he shall beíjKtig^ lied his debt, by the yearly value at which it is i^li^red to him as found by inquest. These are the only utions in England, whereby lands can be affectefi personal actions. But by a statute made in the time Geo. I. lands in America are subject to be taken in execution by fieri facias, and sold as personal property, and to all intents and purposes considered as such for the payment of debts. Lands are by this act become a sort of mixed property, partaking of some of the qualities of real and personal; and if it is to be governed by the law with respect to the rules of personal property, the fieri facias only binds from the delivery to the sheriff If, on the other hand, the judgment is thought to be a lien on the land, I apprehend it must be governed by the common law, and the statute of Westminster, and either the present profits, if taken by levari, or a moiety of the land if by elegit, are the only means whereby the judgments are to be paid out of the land. No fieri facias ever issued to bind the property in the present case.

I shall be told that the real estate is bound by the judgment; but I shall contend that if it was bound, and the judgment in this case had been a lien upon it, that it was discharged by the debt due thereon being discharged under the act of assembly, which enabled debtors to persons residing in Great Britain to pay their debts into the treasury, and discharge themselves thereby. The case stated admits that this was done, from which time to the treaty of peace, in September, 1783, the lots were discharged of any lien on them by the judgment, and although the treaty of peace provides that there shall be, no obstruction or hindrance to- the British creditor in recovering his debt from the person who- owes the same, or his property. It can only mean that his person, and the property then belonging to him, should be liable; it never could be the meaning of that article to make the property of a fair bona fide purchaser made under the faith of an act of assembly, and discharged thereby, to pay a debt, which was no lien on the property at the time j but can lands once discharged from a judgment, and the property purchased by another, be again made liable for the original debt by any rule of law; if so, where is it to be found ?

I shall be informed by the gentlemen on the other side, that this is like a mortgage. I take it to be very different. A mortgage is an actual conveyance of the legal title by the immediate act of the owner of the land, and on payment, requires a reconveyance thereof to revest the same. This is only a lien by operation of law, which may be discharged by many ways without any act of the debtor, either by the act of limitation, or a dis» charge out of custody on a ca. sa.

Key, for the appellee.

This is a case of a scire facias on a judgment obtained against Mark Alexander, against the terretenants of the lands sold by him, after the judgment, and before the payment into the treasury.

A judgment, by the laws of this state, binds lands from the time of signing the judgment,, and not only in the hands of the debtor, but also in the hands of his assignee. It seems, therefore, extraordinary, to suppose that the payment made by Alexander could extinguish the lien on the land, and that under the treaty it is void as against the person or chattels. Certainly if it is void as to any purpose, it must be to all. The treaty does away the payment as effectually as if it had never been made.

The judgment bound the land, and created a lien as effectually as a mortgage, or a marriage settlement. The fifth article of the treaty gives a remedy against lands in such cases, even where there has been an actual confiscation. This is going much beyond the 4th article ; and is it possible to conceive that the lien shall continue where there has been an actual confiscation and sale by the state, and not where there has been a sale by a private individual?

Suppose a mortgagor had paid in money, and then sold the mortgaged premises, should not the creditor have recourse to the mortgaged premises ? And certainly the case of a judgment creditor is as strong a case as that of a mortgagee. The debt was never extinguished, consequently, the lien was not. The treaty removed the impediment, and revived the remedy, not partially, but wholly and unconditionally.

The court of appeals, at June term, 1795, reversed the judgment of the general court.

The judgment of the court of appeals was afterwards reversed in the supreme court of the United States. See 3 Dallas’s Reports, 199. 342.  