
    
      UNITED STATES & AL. vs. HAWKINS' HEIRS.
    
    Appeal from the court of probates of the parish and city of New-Grleans.
    A judgment against two, without stating the parties are condemned m solido, makes «■«⅛ r.spons.bie for his viril? «hare.
    Judgments are pics»mcii to follow the obliga- <»°« they enforce. But when «be prayer ⅛ the petition does? follow the obligation, this presumption does not exist.
    • Ban are not responsible in solido* unless in case of insol» vency of one of them, or unless when sued, they fad to claim the benefit of ani-
    The service under a writ of fierifmlasdoes not divest the debtor 0f the property seized,
    a seizure of food gives no preference over other creditors.
    Theu.States have not a pre-iNenc»man⅛. gage creditor/*"
   Porter, J.,

delivered the opinion of the court The proceeds of the property left by the deceased not being sufficient to pay ail _ ° J , the creditors, the tutrix of the minor heirs ..... filed a tableau of distribution, in which she affixed a certain rank to several mortgage and privilege creditors. Opposition was made ° 1 1 to the homologation of the tableau, and after . . bearing the parties, the court of probates, con-r ... , íirnied it in part, and modified it in respect to . . some of the creditors by whom it had been Opposed.

r rom that decree this appeal was taken,

, The parties now contesting before the court, ⅜ o are: 1st. Elliot, who by virtue of a judgment anil execution issued thereon, levied on property of the estate during the life of Hawkins, claims to be paid in preference to all others, r> 1 rp, TT . , „ ■ . . . Au. l tie United ¡stales, who assert a right to . , priority of payment out of the funds in the . , . ... Iwids ot the administrator of the estate, for a it , , ... balance due by the deceased as navy agent, 3d. Wilkinson, to whom Hawkins gave bond, secured by special mortgage, on part of the pr0perty 0f the deceased.

As Elliot insists his claim is highei than all others, we will first examine it.

The judgment in which it originates, was rendered against the deceased and one Hector M’Lean who were bail for Beale, against whom Elliot had commenced an action, and it is in the following words: “Judgment to be entered in favor of the petitioner against the defendants as bail aforesaid.”

Under this decree a fieri facias was taken out on the 17th June, 1822, on which there is the following endorsement: “Credit this writ with one half of the judgment and costs paid to the plaintiffs’ attorney, and for which satisfaction is entered on record the 18th March, 1822.”

On the judgment docket, the following receipt is entered, “ Received satisfaction of one half of this judgment and costs of J. H. .Hawkins, Esq.” J. A. Maybin.”

An aliasyim' facias was subsequently issued, on which the sheriff* returned “ seized the house and lot, occupied by the defendant, the sale of which was stayed by an injunction from the court issuing the writ.”

Apiaries fieri facias was afterwards taken, on which there is the following return; ki stayedday order of the court.”

On these Tacts the opposing creditors contend, that'&e judgment against Hawkins &* M’Lean was not in solido,

: 2d. That, if .it was. the solidity has been renounced.

3. That the seizure gives no preference? over previous mortgages, nor above that claittted by the United States.

; The bail bond on which this judgment was rendered, makes express mention, the parties signing it, were bound jointly and severally. The judgment is against them as bail, but, lyes not say they are to pay the plaintiff join* ly or/severally.

It :is, afplihciple of our law, and a familia.' one, thaTátt; Óbügation in solido cannot be presumed ; that it must be expressed. The obligation imposed by:a .judgment is understood to be subject to thé. same rule, and a decree that Twogshould. pay. a sum of money, makes each responsible for bis virile share.

Butin opposition to this presuraption, it is contended that judgments are always presumed to follow the obligations they enforce; and the parties in this instance being bound in S0hj0' (|ie decree of the court must be understood to condemn them to do that, which they had engaged todo. ■ a

What force this argument would have, had the petition required they should be condemned jointly and severally we need not say. But when it merely asks for judgment against both, the presumption relied on does not exist. The Roman law is express on this point, and Pothier sanctions the same doctrine.—Dig, 17, tit. 1, l. 59. Pothier Control de Mandat, no. 83.

But another question remains to be solved, before this point is disposed of. The words of the petition, and the judgment it is contended, show the demand to he in solido, and the decree to be according to the prayer of the petition.

Not a word is .said in the rule taken against the defendants, respecting the bail bond, or the terms in which it is drawn. The defendants are called on to show cause why judgment should not be given against them as bail.

The answer contests their responsibility as charged, and the judgment condemns them as hail to pay the plaintiff the sum demanded in the petition. ⅜

The responsibility contended for, must result then from the obligations imposed upon them as bail. Now, as such they were not responsible in the ’first instance to this extent. .There is an express ..provision in our.laté code, that where there are several sureties, each is individually halle for the whole debt, in case of insolvency of any one of them. The. special statute's which provide for the manner of taking bail bonds, make no exception to this rule. Civil Code, 430, art. 12; 1 Mart. Dig. 474, 475, 476.

If this article stood alone, there can be. little doubt the creditor would be obliged to show the insolvency, before he could recover the whole debt from one of The sureties, because it is only on. that event he is responsible. But the next, section declares “ that any ajf íhéra may howfever, demand, that the creditor^ should divide.Ehísbácition, hy reducing hiSTernand to the amount of the share aneb portion due by each suretycnnless they have r e n o u n e« «1 thebe nefit of'divisionT Civil Code. n. 430, art. 12.

This confusion h&s arisen ffbm copyiogThe second section literally from the Napoleon . ' , 1 Uode, and changing the first. It is certainly no eaSy matter to give a satisfactory con-gtruction to such enactments. The first :fe- ' dares the surety only responsible for the whole amount on a certain event. The next provides that he may nevertheless claim the benefit of division if sued for the whole.; that is, that he may exercise a right which the preceding section would seem to have rendered useless. Civil Code, 430, art. 12 ; Code Nap., 2205, 2206.

And yet this provision must have been introduced for some purpose. The soundest rules of construction require us to presume so, and so to construe laws, that, no part of them if possible should be vain, and without effect. . We conclude, therefore, it was the intention of the legislature to make the co-surety responsible in two cases for the whole amount. 1st. If any. of those bound with him were insolvent: and 2d. If, when sued,although lliat event had not taken place, he failed to claim the benefit of division. Any other construction would leave the second section without effect. . v

The division was not demanded here, nor could it have been successfully, for the obii- , , . , . ,, , gation made the sureties responsible in solido. We therefore think the judgment bound each for the whole amount.

The second question is free -from any diffi-euliy. The creditor is not deemed 10 remit the debt in solido to the debtor when he receives from him a sum equal to the portion due by him, unless the receipt specifies, it is for his part. Civil Code, 28 v., art. 3.

We have now to examine the effect of the lien created by the seizure made non the house and lot, and the operation of the execution on the personal proper!} nut seized.

At common law the seizure under a, fieri facias ..divested the debtor of his property, but • he mere delivery of the writ to the sheriff did not, .Supposing us governed by that system, the right to property in this instance would not be changed, for no seizure took place. But the effect which our writs of execution should have, is prescribed by the positive laws of the state.

These laws declare that the writ oí fien facias shall, from the time of the delivery to the sheriff, bind and be a lien on all personal property of the person against whom the same shall be directed into whosoever hands the same mny conic,

These expressions ex vi terminornm exclude the idea, 1 hat the property i“ transferred by seizure. If any part of it was, the whole would not be made subject to the lien, as property of the debtor. Again, according to another provision of the same act, the purchaser at sheriff's sale acquires the right, title, and interest which the debtor had to the thing sold, at the time the writ is delivered to the sheriff Now, it cannot be presumed, the legislature intended to divest the debtor of the title which the purchaser was to acquire. Such an enactment would be worse than useless. Nothing found in the Spanish law, or the writers who comment on it, supports the idea, that seizure makes any change in the property. By a law of the Recopilación, goods taken in execution were directed to be sequestered, inventoried, and deposited with some responsible person, and the adjudication transferred the property of the debtor to-the purchaser. Curia Phillipica, p. 2; Juicio Executive, §. 16, no. 19 ; Nova Recop. 4, 22, 7.

As to the land which was actually seized, tfie statute provides, that from the time the judgment is docketed “ all real property and , . , . ;⅛ . , i • , slaves within the territory, belonging to the person against whom said judgment shall be so seized and docketed, shall be bound and liable for the said debt and costs, in whosoever hands they may have come for one year;” and by a subsequent section it is provided, “ that the sale by the sheriff, shall vest in the purchaser al! the right, title, and interest of the person against whom the execution issued at the time of docketing.” The observations already made in regard to moveable property, apply with equal, and perhaps additional force to these provisions, and it appears to us, exclude the idea of the seizure making any change in the title. But the principle contended for, does not apply, even in countries governed by common law, to immoveable estate, and the distinction grows out of the difference between that species of property and moveables; the one passing by delivery, the other by deed. 4 Mass. 402; 8 John. 548; 2 Martinis Digest, 170, 172.

We are therefore of opinion that the seizure of the land affords no preference over other creditors; nor did the docketing of the judgment give any over the United States : for if that act gave a mortgage, it could have no effect against third parties, as by a provision of the code, posterior in time, it is declared, that judicial mortgages cannot operate against third parties, except from the day they are registered in the office of the register of mortgages, if it conferred a lien inferior to a mortgage, the United States have the preference over ?• on the principles already decided by the supreme court of the union. Civil Code, 454, art. 14.

W e proceed therefore to examine the claim of the United States. It is founded on an act of congress, which gives a preference to the general government, in the funds of an insolvent or deceased person’s estate. Ingersoll's Ab. (ed. 1825) 561.

A decision of the supreme court of the United Stales has been referred to in argument, in which it is declared, that the claim of the government yields to that of a mortgagee creditor. Bat on the other side it is contended, that though such is the case as it regards mortgages at common law, it is different in respect to ours ; because, in the former the debtor ⅛ divested of the title, whereas in this state ,it remains in hip, and the reasoning used by the court, in the decision of that case, is offered in support of this distinction. Thelluson vs. Smith, 2 Wheaton, 426.

There is little or no difference in the effect of the common law mortgage and our hypothecation, though the form of the instruments by which they are created is not the same, and the mode of enforcing them different. Both are considered by the debtor, and the creditor, as securities for the payment of a debt or obligation, or the discharge of some duty; and though, according to the doctrines of the English jurisprudence, the law views them in one light, and equity in another; yet both mori-gagor and mortgagee know, that the legal consequences flowing from an act, which in form, is a conditional sale, are controlled by the operation of other principles, that are as bind ing on the parties as if the same rules were prescribed by an act of parliament. Douglas, 600, 1; Powell on Mortgages, 220; Civil Code, 452, 1.

> : The attempt therefore to make the morí gagee creditor in this state, yield to the claim of the United States, is founded on distinctions purely technical. But when our mortgage is closely examined, it will not be found to differ so materially from that of the common law, as on the first consideration it would appear 1 * to do.

gU( before we go into the examination, it is pror we should stale, that wo disclaim ail intention of putting a different construction on the statute to that given by the supreme court: for as the question arises on an act of Congress, it is our duty to follow the exposition which they have given of it. As that tribunal said, in a very late case, “ the judicial department of every government, where such department exists, is the appropriate organ for construing the legislative acts of that government. Hence the construction given by this court to the constitution and laws of the United States, is received by all as the true construction; and hence the construction/given by the courts of the several states, feShe legislative acts of these states, is received by us as true, unless they come in conflict with the constitution, laws, and treaties of the United States.” 10 Wheaton, 160; see also 16 John. 248; 17 ibid, 108.

That, court has decided that the claim of the United States should be postponed to the mortgagee creditor, and that it fiad preference over the judgment creditor claiming n lien. U has not however, as yet decided the question, whether a special or qualified property in part of the debtor’s estate, would enable the ere-ditor to be paid before the government. The question, therefore, is still open to us. The distinguished jurist who argued on behalf of the United States, in the case against Fisher’s assignees, expressly disclaimed all intention of contending that the priority given by Statute would operate against the pawnee, and it is clear that he has nothing but a special property in the thing pawned. Even if the question had been decided adversely to such right, in property under contracts at common law, it would be undecided in relation to a claim presented under our system of jurisprudence: for our rules are as different on this head as can be easily supposed. In the former, for example, though the object of the deed of mortgage is to secure the payment of a debt, and its effect nothing more, unless the mortgagor chooses, the mortgagee is considered in law as the real owner, because the form of the instrument confers it. In the latter, as will be hereafter clearly shown, though the form of the instrument does not transfer the title, yet from technical rules growing out of the contract, as first understood and recoenis- .... ⅜ ed in the'civil law, the right of the mortgagee -n t|je t|jjng mortgaged, is considered to this <% same as that of the vendee. Whether this be an anomaly in our jurisprudence, or not, is a matter of little consequence; for if the effect of our hypothecation be as just stated, the mortgagee must have the same preference here as in the common law states, according to the principles already established by the supreme court of the United States. 2 Crunch, 358; 3 ibid, 73 ; Wheaton, 426.

According to the early doctrines of the Roman law, the right of the creditor in the thing hypothecated was considered to partake so much of the nature of a complete acquisition of title and property, that it could not be obtained by a naked agreement. Tradition was necessary, on the maxim, non nudis con-veniionibus, sed traditionibus. Polhier Traite de l'Hypotheque, cap. 1, sec. 1, art, 1, § 1.

An edict of the praetor subsequently permitted hypothecation to be formed by convention, without possession following the act, but no other change was made. The character originally belonging to the contract still attached to it, and the right conveyed and .acquired, was styled jus in re; Pothier loco citato.

The principle, as far as we can learn, has been adopted and maintained by every nation in Europe, whose jurisprudence is drawn from the same source as ours,

Basnage, in his Taítés des Hypothéqucs, ch. 6, defines a mortgage, “ jus reale quod fundum se-quitur, adversas quemcmnque possessoremP

Meguzantius, a distinguished Italian jurist, gives the following definition, the accuracy of which has bceri applauded by other writers who treat on this contract. “Et quia hypotheca constituitur desuper rebus, ideo dicitur.jus in re, sen jus reale, vel actio reads quia per Mam non obliga-tur persona debitoris, sed res, et sequilar fundum, et datur contra possessionem.” Part. I, no. 3.

Of the same opinion is Heinneceus, “ Quod ad reliqua attinct, jus in re, ex pignore et hypotheca idem nascitur. Heinneceus, Recit. lib. 3, tit. 15, no. 822.

f:. The French jurists, who have commented on the Napoleon code, from which the articles in ours on the same subject do not materially differ, approve of these definitions, and expressly state that a mortgage is a real right, jm in re. Civil Code, 452 and 3; Code Nap,, 2114; Grenier, Traite des Hupothéques, part 1, cap, 1, no. 4 ; Persil Regime Hypothecaire, cap 3, 2414.

The Spanish writers recognised the same distinction, and the hypothecary action is classed among those denominated real. Febrero. p. 1, cap. 4, sec. 4, no. 70. To the same effect is Heinneceus, lib. 2, tit. 1, no. 334.

Again, according lo the writer last mentioned, vbijits mihi csl in rc. ibi res mi hi devinda est; vhi jus ad rem persona oblisata, no. 333.

And. in accordance with all these authorities is Pothier, who, in his treatise Du Droit du Domaine de Propriéíé. tells us, that they’ws in re is the right which we have in a thing, by which it belongs to us, at least for certain purposes, {an moins a certains ésards') chap. 1, no. 1. And he classes among those who have the /½ in re the vendee, and the mortgagee creditor. Po-thier, loco citato, no. 2.

Prom these authorities we think the conclusion is irresistahlc, that according to the techical rules of our law, the mortgagee has a right to the property mortgaged.

And it was no doubt from this consideration, that neither in imperial Rome, nor in Fra.rice, nor in Spain, did' the government claim for debts due to it, a preference over the creditor who asserted a right in virtue of a conventional mortgage, unless the act embraced future as well as present property, in which case the Fisc was preferred, on that acquired subsequent to the date of the mortgage. But the right even to that extent was a question strongly controverted among the Roman jurists.—Curia Phill. Commercio Terrestre, lib. 2, cap. 12; Verbo Prelación, nos. 29 & 30. Febrero, p. 2, lib. 3, cap. 3, § 2, nos. 115, 116, & 117. Domat. lib. 3, tit. 1. § 4, nos. 21 & 22. Dig. lib. 20, tit. 4, law 21. Ibid lib. 49, tit. 14 ; law 28.

If then according to the technical rules of our jurisprudence, the mortgagee creditor is considered to use the language of Potheir, as the owner for certain purposes of the thing mortgaged, we are unable to perceive any difference between his claims when opposed to the United States, and those of a person holding a mortgage at common law.

It was contended on the argument, that the judicial mortgage of our laws differed in no respect from that by convention, and that if the mortgage in this case had been of the former kind we should have precisely the case of Thelluson vs. Smith, where a iudgment in , . . . . ' .. & Pennsylvania which gave a lien was postponed to the claim of the United States. To this we answer that, it is trae, the judicial mortgage of our law, does not differ from the conventional, except in the manner in which it is formed; but both our conventional and judicial'mortgage, differ from the lien of the common law, in the rights which they confer in the property. The latter gives no jus in re, it is an obligation, tie or claim, annexed to, or attaching upon the property.—-Jacobs’ Law Dict. vol. 4, verbo lien 159.

If to this reasoning it be still objected that the effects of a lien given by a judgment at common law, and the effect of our judicial mortgage are the same, and that the distinction drawn between them is refined and artificial; the reply again is, that the mortgage at common law, our hypothecation and the. lien conferred by judgment, are nearly alike in their effects. But if the supreme court of the United States felt itself bound to give the mortgage at common law a preference in consequence of the form in which it is made, we do not feel authorised to shut our eyes to those technical rules, which make the mortgagee in the view of our law, owner for certain pur- „ , . ■ ¾ poses, oí the thing mortgaged.

Eustis and Sira,wbridge for .the United States, Preston for Elliot, and Ripley for Hawkins’ heirs.

It is therefore ordered, adjudged and decreed, that the judgment of the court of probates be affirmed with costs. .  