
    Polk and Wife vs. Douglass and Cameron.
    Lands sold by virtue of an execution founded on a judgment rendered in the Federal Court, cannot be redeemed by or under the provisions of the act of 1820, ch. 11.
    The complainants filed this bill to redeem a certain lot of ground, particularly described and mentioned in the pleadings. The lot was sold by virtue of an execution issued upon a judgment rendered against the complainants, in the circuit court of the United States for the district of West Tennessee.
    The complainants tendered the purchase money within the time prescribed by the act of 1820, ch. 11; and having complied with all the other requisites of the act, demanded a re-conveyance from the defendants, who were the purchasers at the Marshal’s sale. The defendants refused to receive the money or to re-convey the lot.
    The cause was tried in the circuit court of Rutherford county, before his honor Judge Mitchell, who rendered a decree in favor of the complainants^ from which the defendants appealed to this court.
    T. H. Fletcher, for complainants.
    
      J. Collinsworth, for defendants.
   Green, J.

The lot in question was levied on and sold by virtue of an execution issued from the Federal Court for the District of West Tennessee, founded on a judgment against the complainants in that court. This bill is brought to redeem the lot, alleging, that a tender has been made to the purchaser; that all the other requisites of the act of 1820, ch. 11, have been complied with, and th^t the defendants refuse to permit them to redeem.

The only question is, whether, on a sale made by virtue of an execution founded on a judgment had in the Federal Court, the defendant in the execution has a right to redeem.

It is insisted, that by the act of Congress of 1828, further to regulate processes of the United States, the complainants have a right to redeem according to the provisions of the act of Assembly of 1820, ch. II. The lot was sold and the defendant purchased it, at the Marshal’s sale in January, 1827. If, at that time, there was no law authorizing its redemption, the defendant acquired by his purchase, a good and indefeasible title’to the property. No subsequent law could divest him of that title, or annex conditions to the tenure by which it was held. Were the act of Congress to have this operation, it would take away, without his consent, the property of the defendant and give it to the complainants, which cannot be done.

It is next to be considered whether the act of 1820, ch. 11, applies to cases of sales by virtue of process issuing from the Federal Court.

I think it cannot. Congress have an undoubted right to say what property shall be liable to the satisfaction of judgments rendered in the courts of the United States. It is a necessary incident to the judicial power, that the courts have the means of executing their judgments. The process act of Congress, of 1792, adopted the process in use in the States, as it existed in 1789, and rendered property liable to the satisfaction of the judgments of the Federal Courts, which ivas liable in the States respectively, to the satisfaction of judgments in the State courts. Lands were then liable here to unconditional sale by fi. fa. The law of Congress has not been changed until the act of 1828. As the act- of the Tennessee Assembly of 1820, ch. 11, interposes a condition to the sale oí lands, (it intended' to apply to sales by execution from the Federal Courts,) it interferes with the execution of the United States process, and annexes conditions to the acts of the Marshal, and places him under the control of State authority.

ff it be insisted that this law does not interfere with, or in any wise act upon, the process of the Federal Courts, or the sale of the Marshal, then it follows that the sale is made without condition, and the purchaser gets an indefeasible title. Of this title he cannot be deprived by any legislative enactment, and therefore there can be no obligation upon him to permit its redemption. The only ground upon which the purchaser under an execution from -the State courts, can be compelled to give up land purchased by him, and for which he has a deed, is, that this act of Assembly regulates the process of the State courts, and annexes an equitable condition to the sale, which before was absolute. But as it cannot interfere with the process of the Federal Courts, this act does not annex any such condition to the sales of the Marshal, and consequently, an absolute right is conveyed by his deed to the purchaser. Of this right he cannot be divested without his consent. 10 Wheaton’s Rep. 1—51.

I think the decree should be reversed.

Catron, Ch. J.

I would not feel it incumbent on me to express my opinion in writing in this cause, had not the two sitting Judges with myself, differed in opinion on its hearing.

The object to be attained by the formation of the Federal Constitution was, to ordain and establish a Government, distinct’from, and independent of the State governments.. This was the fatal defect of the Confederation. The general laws of the whole Union are declared tobe the supreme law of the land, any thing in the State constitutions or laws to the contrary notwithstanding. They operate directly on every citizen. These laws generally would have been useless, had not a judiciary been provided to execute them; and a judiciary, without the means of executing its judgments and decrees, would be useless. Congress is authorized to make all laws which shall be necessary and proper, for carrying into execution the powers granted or vested in the government, or any department or officer thereof; hence, Congress has the right to prescribe the measure of justice, and the mode of administering it, in cases where the Federal Courts have jurisdiction. This -was necessary to protect the foreigner and the citizen of a different State, against any stay laws and virtual denials of justice, by withdrawing from execution the property of the debtor by the State governments. One of the prominent evils that brought about the Convention and the adoption of the Federal Constitution, was, the denial of justice by the State governments to the non-resident creditors. Justice was most unreasonably delayed by imparlances and stays of execution; and when execution was had, the debtor might tender property or depreciated paper money in payment. The revenues of the Federal Government, amounting to many millions annually, were to be collected, and the numerous contracts of the government were to be enforced, of course, within the territorial limits of the States, and if Congress had not the power to prescribe the measure of redress, that is, the property subject to execution, the State governments might withdraw all the property of the debtors from levy, sap the foundation of the government and produce its overthrow. If one State government, New York, for instance, had this power, and were to exercise it, of necessity the others would follow the example; for at the single port of the city of New York is collected two-thirds and more of the whole revenue. To withdraw from Congress the right to declare the mode of satisfaction, and to hold that the laws of the States bound the Federal Courts, independent of the legislation of Congress, would be a very dangerous assumption. Suppose New York were to pass a law declaring that all judgments should be stayed two years, or that they should be stayed two years, unless the creditor would take in payment depreciated bank notes, worth little or nothing; or that the debtor should have two or ten years to redeem the property sold, and to retain possession in the mean time; and these laws bound the United States’ courts; what would be the consequence? That the revenue could not be collected. That the law giving the government a priority of payment would be a dead letter, because the creditor would have ample opportunity to waste his property. That the other States would refuse to sustain the government alone, adopt similar laws for their protection, and the government would be ruined. The means of enforcing the government dues, are the means of self-preservation. The Constitution makes no distinction, or reservation of rights in favor of the debtor to an individual, and the debtor of the government. In all cases where Congress has the power to cause to be enforced the contract, the mode and measure of redress is general and unrestricted by State legislation, unless this be adopted by Congress.

The Supreme Court of the United States held, in Wayman vs. Southard, (10 Wheaton, 22,) that the clause authorizing Congress to make all laws necessary and proper for carrying into execution the granted powers, and all other powers vested by the Constitution in the government of the United States, or any department thereof, conferred power to make all laws for carrying into execution all'the judgments which the judicial department had power to pronounce; and that this seemed to be oné of those plain propositions which reasoning could not render plainer. The terms of the clause neither admitted or required elucidation, and the court would therefore only say, .-that no doubt whatever was entertained on the power of Congress over the subiect. The only inquiry was, how tar it had been exercised.

By this adjudication we are bound, because, should we decide differently, the Supreme Court of the United States could in this case reverse our judgment, by virtue of the 25th section of the judiciary act.

The principal reliance in this cause on the part of the complainants, is placed on the 34th section of the judiciary act of 1789, ch. 20, which enacts, “That the laws of the several States, except where the Constitution, treaties, or statutes of the United Stales shall otherwise require or provide, shall be regarded as the rules of decision in trials at common law, in the courts of the United States, in cases where they apply.”

This section furnishes the rule of decision, not of executing the judgment. 10 Wheaton, 24—51.

The process act of 1792, ch. 137, is the law which regulated executions issuing from the courts of the United States in 1827, when the sale of the land sought to be redeemed, took place. It adopts the practice of the Supreme Court of the State, where the United States’ Court is holden, such, as the practice and the law governing it were in 1789, when the judiciary act was passed, as the rule to govern proceedings on executions, subject to such alterations as the courts of the United States may make, but not subject to any alterations which have taken place since 1789, in the State law and practice. 10 Wheaton, 31, 32.

The act of 1828, ch. 68, “further to regulate processes in the courts of the United States,” has no application to this case.

The decree will be reversed, and the bill dismissed.

Peck, J.

(dissentiente.) If it be admitted that a purchaser at execution sale, under a judgment rendered in the Federal Courts, is placed upon a footing different from a purchaser under a sale emanating from a judgment in a State court, then there exists in Tennessee, an inequality ot rights, which would be startling even to the most common observer. If it be true, that in the one case an equity is raised in behalf of the execution debtor, which he can enforce, and that in the other case that equity is taken away, it may be considered a matter of regret, that a forum exists in the State, which can, under its mandate, place a purchaser at the defiance of a statute of the State, which statute, all others regard as sufficient to afford the benefit it purports to confer.

The Federal and State constitutions were framed with a view to secure to all alike, the enjoyment of life, liberty, property and the pursuit of happiness; on these are predicated our notions of a republican government. Our constitution when framed, was approved; and by the approval, we had guaranteed to us such a frame of government as should attain the ends contemplated, with uniform equality of rights among the citizens.

The Federal judiciary was admitted in the States to exercise a limited power in those few cases, where it was supposed possible too great a bias in favor of a citizen of the State,, contending with a citizen elsewhere, might produce results to the prejudice of the latter. No one questions the jurisdiction or power of the Federal Courts. To try the cause, give judgment and award execution, are all conceded powers, powers granted, and in which the foreign creditor has a direct interest, and by means of which he is to get his demand.

But admitting all this, the question then arises upon the rights of others, no one of whom is a foreigner. It arises between citizens of our own State, upon a right given by our own statute. The Federal judiciary has nothing to do- with the question, which has arisen, subsequent to the last act of the process of her court. A question which grows out of our policy, and which policy is not at war with the rights or interests of the foreigi creditor, or with any provision of the Federal constitution. The question springs immediately from a statute of the State of iennessee, (act 1820, ch. 11, sec. 2,) not inconsistent with our State constitution in its provisions. That act has nothing to do with the foreign creditor, it does not in the least impair his right to the thing he demands; so far from it, it begins to act when he has received it. It does not call him before the court, though he may have an advantage by the provisions of the act itself. If on sale of real estate, all his money had not been made, as a creditor, he may come in and forcea new bidding of the property, a course lately pursued in East Tennessee.

Confine the question therefore to the case made in the pleadings, and we find it between two of our own citizens, founded on the act which provides “That it shall and may be lawful for any debtor whose interest in any real estate may hereafter be sold under execution, at any time within two years after such sale, on payment or tender thereof to the purchaser, or to any one claiming under him, the principal money bid at such sale, with ten per cent, interest, with other lawful charges, if any, to redeem the interest; and upon payment or tender thereof, it shall be the duty of the then claimant to reconvey said interest to said debtor, but at the cost of such debtor.”

This is a general law, applicable alike to all persons, and to all executions; no matter from what court they may issue. It is intended to fix the right of purchaser and of debtor; it jeopardizes no right, impairs no obligation; nor does it supervene any process. At most, it creates an equity when the tender is made or the money paid; and for this equity, ample compensation is given in the ten per cent, and all costs and charges paid. The law makes known to all purchasers that such an equity exists on tender or payment; no one is circumvented, no one taken by surprise. .

We hear it frequently.announced from this seat, that laws which are partial in their operation are unconstitutional, and not the law of the land. Laws should, if possible, be construed so as that their operation-shall be equal. In the case before us, the rule is reversed; and though the words in the act are broad enough to cover the case, “all executions,” they are made to have a partial application, that only the executions of our own tribunals are intended. The act in question, so far as our tribunals of justice are concerned, has had a liberal construction; and though not embraced within the letter, sales made by the master on decrees in chancery, have been held within the spirit; and therefore, estates so sold redeemable under the act.

It is assumed, that because the property is subject to execution and sale by act of Congress, that it was made to protect the creditor, and therefore our law cannot reach such a case without conflicting with Federal power; and to sustain the argument, stay and replevin laws have been referred to. It seems to me, that any mind must at once perceive that there exists no analogy in the two cases. Stay and replevin laws directly affect the execution, and delay the right of the creditor. Not so in the case before us; no execution is stayed, no right delayed. The only question that can arise, is a question which may affect the title: if it is said the purchaser is substituted in the place of the creditor, Ihe obvious answer is, that by such substitution he may have his money, not the thiug purchased, so long as the other will redeem.

When it is insisted that the right passes without redemption, I would ask by what act of Congress? The furthest the acts of Congress go in sales and transfers of real estate by the Marshal, is, that the deeds be made in conformity with the law of the State, not in virtue of any express provision contained in any act of Congress. This is a courtesy due to the States. While it regards and secures the rights of creditors, it places purchasers upon a uniform footing; all the dissimilarity is in furnishing the officer to make the transfer, if that may be called dissimilarity, and at most, it is by construction, that gentlemen arrive at the conclusion that the rule to be followed when the transfer is made by the Marshal, shall be ascertained by the laws of the Slate in existence at the time the act of Congress passed.

But if all this is admitted, still, at every move the main question presents itself, is the right of redemption defeated? A matter, as before observed, with which the creditor has nothing to do. It is emphatically a question between others, a question which relates to the passing titles to lands in the State. It cannot be pretended that the mode of transfer cannot be fixed by our laws. Not only the mode, but the conditions and limitations under which it shall be done, are subjects belonging to the legislature to provide.

Rules of alienation may be deeply connected with policy, and that policy must be seen in legislation. If policy and legislation go hand and hand, and neither conflict with constitutional restriction, where is the objection? It must be whimsical to make it.

In all the cases cited against the complainants, they are such as did affect the rights of the creditor; they were cases growing out of laws which either defeated or delayed the right. But by the last act of Congress of 1828, even the subsequent laws of the State are let in to govern, although they may affect the right, provided they be such as the State tribunals approve. This gives strength to the argument I am advancing; for if a law is now let in to operate, which, before the act of 1828 could not, surely a principle not coming within any former decision, and with which the creditor has nothing to do, must be allowed; and this certainly in a case, where the Marshal can make no other or better title than the law of the place allows. The act of Congress does not purport to vest the right unconditionally. If the Marshal has no more power than the sheriff, how can he at any time make a better title?

The equity which the act gives, being wholly aside from any, even the remotest interest of the creditor, will we enforce it between our own citizens? I will not say we can, but may safely add we must; for so long as the law is considered constitutional, it is part of the law of the land, and must be administered. It is a case where a party comes in with merits; the right is just as strong as in a case of a mortgage, where the money has been paid or tendered; and I feel that I have no more power to withhold in the one than in the other case. The money bid, for the two years, remained a lien upon the land; and while it secures all in interest, it gives to the landholder of the country the right to save his home.

The law is a wise one, because it contains within itself not only a provision which is just and humane, but is calculated to keep down that speculation which might otherwise, under the fluctuation of the currency of the country, throw into the hands of-capitalists the best estates amongst us, at greatly inadequate prices. Being consistent with the policy of the country, securing rights to the execution debtor, I will not overlook these rights, but am for enforcing them as the Chancellor did, by affirming the decree.

Decree reversed.  