of Samuel H. Turrill." The court said: "This renders it morally certain that the recorder made a mistake in transcribing the original upon his records." The same construction was given to a statute of Alabama, the meaning of which cannot be distinguished from the statute of Illinois, by the supreme court of that state in Harvey v. Thorpe, 28 Ala. 250, where the very point was ruled that parol evidence was admissible to show that a deed was not correctly recorded. And the same principle was adjudged in Wisconsin, in Sexsmith v. Jones, 13 Wis. 631, and in New Hampshire, in Wells v. Iron Co. 48 N. H. 534.

The next question relates to the competency of the evidence admitted by the court to prove the mistake in the record of the deed, and the correct description of the property as contained in the original.

This was, in substance, as follows: First, the testimony of certain persons tending to prove that they had seen the original deed, and that it described the land conveyed as identical with that in controversy; second, a certified copy from an entry or file book, kept by the recorder of La Salle county, in which the land was situate at the time the conveyance was made by the attorney of Lacey to Newman, of a memorandum made by the recorder, showing the date of the receipt, of the deed for record, the names of the grantor and grantee, the hour of its receipt, the nature of the conveyance, the date of its execution, and the location of the land conveyed, under which head the premises are described as the "N. E. S. 29, T. 32 N., R. 8 E., 3d P. M;" third, a transcript from the land-office at Springfield, Illinois, in which office was contained the records of the entry of the land in controversy, showing Jeddiah Wooley entered the N. E. 29, 32, 8, on August 8, 1835, and that he did not enter the S. E. of said section; also a receipt from the land-office at Chicago, Illinois, in which office the land in controversy was sold, dated August 8, 1835, for $200, from Jeddiah Wooley, Jr., in full payment of the N. E. section 29, township 32 N., range 8 E. of the third principal meridian, being the land in controversy, upon which receipt was a memorandum indorsed in the handwriting of Joel Wicks, who was dead at the time of the trial, as follows: "Sold this to Alva Newman, May 6, 1840." But it is recited in the bill of exceptions that the court did not decide that the last-mentioned memorandum and a memorandum on the copy of the deed of May 6, 1840, from Lacey to Newman, that "this land was entered by Jeddiah Wooley, August 8, 1835," were either of them competent evidence.

The evidence offered and objected to was, we think, competent. The testimony of witnesses who had read the original deed, as to their recollection of its contents, was direct evidence of the fact; and the copy of the registry of the deed, as entered in the file-book, was a copy of an official entry, made in a book of public records required to be kept by the recorder, and which constitutes the first step in the

process of recording. The statute requires that every recorder shall keep "an entry book, in which he shall, immediately on the receipt of any instrument to be recorded, enter, in the order of its reception, the names of the parties thereto, its date, the day of the month, hour, and year of filing the same, and a brief description of the premises, indorsing upon such instrument a number corresponding with the number of such entry." Rev. St. Ill. 1845, p. 432, § 7; Laws 1847, p. 69, § 1; Laws 1869, p. 2, § 7.

All these items of evidence tended to prove the alleged mistake, and what was the correct description of the premises conveyed in the lost original deed, and were entitled to be considered, in connection with the certified copy of the record of the deed itself, as secondary evidence of its contents. In admitting and considering them the circuit court committed no error; what effect should be given to them, singly or together, was for that court, to whom the cause had been submitted, alone to determine.

We find no error in the record, and the judgment is affirmed.

(109 U. S. 216)

MATTHEWS v. DENSMORE and others.'

(November 12, 1883.)


In an action of trespass by an alleged owner of property against a marshal who levied on such property under a writ of attachment issued by a circuit court of the United States, when such writ is offered by the marshal as evidence of the authority of the court to command him to attach the property of the defendant in that suit, it will not be considered void because of a defect in the affidavit on which it was issued, although it might be avoided on a proper proceeding; and in the contest for the value of the goods seized, with a stranger who claims them, it is sufficient to raise the issue of the liability of those goods to the exigency of the writ, and should be admitted.

In Error to the Supreme Court of the State of Michigan.

Don M. Dickinson and Julien G. Dickinson, for plaintiff in error. O. M. Barnes, for defendants in error.

MILLER, J. This is a writ of error to the supreme court of the state of Michigan. The plaintiff in error was marshal of the United States for the eastern district of that state, and under a writ of attachment from the circuit court levied on stock of goods which was the subject of controversy. The defendants in error, who were not the parties named in the writ of attachment, sued Matthews, the marshal, in trespass, on the ground that they were the owners of 18. C. 5 N. W. Rep. 669

the goods, and that the goods were not liable to the attachment under which the marshal acted. To this action the defendant pleaded the general issue, with notice that he should rely on the writ of attachment, and should prove that the goods were subject to be seized under it. When the defendant, who was admitted to be the marshal, as he had alleged, offered in evidence the writ of attachment, the court refused to receive it, on the ground that it did not appear by the affidavit on which it was issued that the debt claimed by the plaintiff in the writ was due. As the plaintiffs in the present action were in possession of the goods when they were seized under the writ, this ruling of the court was decisive of the case, for, however fraudulent might have been that possession, the defendant here, in the absence of any valid writ, was a mere trespasser, and could have no right to contest the lawfulness of that possession. The whole case turned, therefore, on the trial in the local state court, as it did on the writ of error in the supreme court, which affirmed the judgment of the lower court, on the question of the validity of the writ of attachment in the hands of the marshal, and its sufficiency to protect him if the property seized under it was liable to be attached in that suit.

It is to be observed that this does not present a case where the validity of the writ is assailed by any proceeding in the court which issued it, either by a motion to set it aside as improvidently issued, or to discharge the levy and return the property, or by appeal to a higher court of the same jurisdiction to correct the error of issuing it on in insufficient affidavit, but it is a proceeding in a court of another jurisdiction to subject an officer of the United States to damages as a trespasser for executing a writ of the court to which he owes obedience.

The supreme court of Michigan, whose judgment we are reviewing, says of this writ, in answer to the argument that, being regular on its face, it should protect the officer:

"No doubt the writ in this case must be regarded as fair on its face. Under the general law relating to attachments, where the suit is begun by that writ, the affidavit is attached to and in legal effect becomes a part of it; and if then the affidavit is void the writ is void also. But under an amendatory statute passed in 1867, which permits the issue of the writ in pending suits, the affidavit is filed with the clerk, and the officer to whom the writ is issued is supposed to know nothing of it. Comp. Laws, § 643. It was under the amendatory statute that the writ in this case was issued, and an inspection of its provisions shows that the writ contains all the recitals that the statute requires." 5 N. W. Rep. 671.

Here, then, we have a writ which is fair on its face, issued from a court which had jurisdiction both of the parties and of the subjectmatter of the suit in which it was issued, and which was issued in the regular course of judicial proceeding by that court, and which the officer of the court in whose hands it was placed is bound to obey, and yet by the decision of the Michigan court it affords him no protection when he is sued there for executing its mandate. We do

not think this is law. Certainly it is not the law which this court applies to the processes and officers of the courts of the United States, and of other courts of general jurisdiction.

It had been supposed by many sound lawyers, after the case of Freeman v. Howe, 24 How. 450, that no action could be sustained. against a marshal of the United States in any case in a state court where he acted under a writ of the former court; but in Buck v. Colbath, 3 Wall. 334, where this class of cases was fully considered, it was held that though the writ be a valid writ, if the officer attempt. to seize property under it which does not belong to the debtor against whom the writ issued, the officer is liable for the wrongful seizure of property not subject to the writ.

In the present case the officer is sued for that very thing, and offered to prove that the property attached was the property of the defendant in the attachment, and was liable to be seized under that writ, and that plaintiff in the present suit had no valid title to it, at least no title paramount to the mandate of the writ, but the state court refused to permit him to make that proof. The ground of this ruling is that because there is a defect in the affidavit on which the attachment issued, that writ is absolutely void, and the officer who faithfully executed its commands stands naked before his adversary as a willful trespasser. It would seem that the mandatory process of a writ of general jurisdiction, with authority to issue such a process and to compel its enforcement at the hands of its own officer, in a case where the cause of action and the parties to it are before the court and are within its jurisdiction, cannot be absolutely void by reason of errors or mistakes in the preliminary acts which precede its issue. It may be voidable. It may be avoided by proper proceedings in that court. But when in the hands of the officer who is bound to obey it, with the seal of the court and everything else on its face to give it validity, if he did obey it, and is guilty of no error in this act of obedience, it must stand as his sufficient protection for that act in all other courts.

The precise point as to the validity of this writ of attachment was under consideration in this court in the case of Cooper v. Reynolds, 10 Wall. 308, in which the effect of an insufficient affidavit for a writ of attachment was set up to defeat the title to land acquired by a sale under the attachment. The case has been often quoted since, and is conclusive in the federal courts in regard to the validity of their own processes when collaterally assailed, as in the present case.

The court, after discussing the nature of the jurisdiction in cases of attachment, their relation to suits in rem and in personam, in answer to the question, on what does the jurisdiction of the court in that class of cases depend? answers it thus:

"It seems to us that the seizure of the property, or that which in this case is the same in effect, the levy of the writ of attachment on it, is the one essential requisite to jurisdiction, as it unquestionably is in a proceeding purely in

rem. Without this the court can proceed no further; with it the court can proceed to subject that property to the demand of plaintiff. If the writ of attachment is the lawful writ of the court, issued in proper form under the seal of the court, and if it is by the proper officer levied upon property liable to the attachment, when such writ is returned into the court the power of the court over the res is established. The affidavit is the preliminary to issuing the writ. It may be a defective affidavit, or possibly the officer whose duty it is to issue the writ may have failed in some manner to observe all the requisite formalities, but the writ being issued and levied, the affidavit has served its purpose; and though a revising court might see in some such departure from the strict direction of the statute sufficient error to reverse the judgment, we are unable to see how that can deprive the court of the jurisdiction acquired by the writ levied upon the defendant's property."

See Voorhies v. Bank of U. S. 10 Pet. 449; Grignon's Lessee v. Astor, 2 How. 319.

If in a case where the title to land is to be divested by a proceeding in which its owner is not within the jurisdiction, and is never served with process nor makes any appearance, the writ on which the whole matter depends is held valid, though there be no sufficient affidavit to support it, how much more should the writ be held to protect the officer in a case where the defendant is in court and makes no objection to it, nor seeks to set aside or correct it, and where the court before it issues the writ has jurisdiction of the parties to the suit?

(109 U. S. 230)

We think that when the writ is offered in a collateral suit against the officer who executed it as evidence of the authority of the court to command him to attach the property of defendant in that suit, it is not void, though it might be avoided on a proper proceeding; and in the contest for the value of the goods seized, with a stranger who claims them, it is sufficient to raise the issue of the liability of those goods to the exigency of the writ.

The judgment of the supreme court of Michigan is reversed, with directions for further proceedings in conformity to this opinion.

Ex parte MEAD, Ex'x, etc.1

(November 12, 1883.)


18. C. 14 Fed. Rep. 257.

Proceedings under Rev. St. 5081, for the re-examination of a claim filed against a bankrupt's estate, are in the nature of a suit against the assignee for the establishment of the claim, and when an appeal is taken in the circuit court, such appeal cannot be allowed unless the notice required by Rev. St. § 4981, "be given to the assignee or creditor, as the case may be," by the party desiring to appeal.

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