ERWIN V. BLAKE, 33 U. S. 18 (1834)

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U.S. Supreme Court

Erwin v. Blake, 33 U.S. 8 Pet. 18 18 (1834)

Erwin v. Blake

33 U.S. (8 Pet.) 18


An attorney at law, in virtue of his general authority as such, is entitled to take out execution upon a judgment recovered by him for his client, and to procure a satisfaction thereof by a levy on lands or otherwise, and to receive the money due on the execution, and thus to discharge the execution. And if the judgment debtor has a right to redeem the property sold under the execution within a particular period of time by payment of the amount to the judgment creditor, who has become the purchaser of the property, there is certainly strong reason to contend that the attorney is implicitly authorized to receive the amount and thus indirectly to discharge the lien on the land. At least if (as is asserted at the bar) this be the common course of practice in the State of Tennessee, it will furnish an unequivocal sanction for such an act.

In the circuit Court of West Tennessee, Hugh M. Blake, the appellee, filed a bill on the equity side of the court against James Erwin, now the appellee, to enjoin further proceedings in an ejectment brought in that court by Erwin and to compel him to convey the legal title of the property described in the ejectment, according to the provisions of an act of the Assembly of Tennessee passed in 1820 which provides that

"It shall and may be lawful for any debtor whose interest in any real estate may be sold under execution at any time within two years after such sale, on payment or tender thereof to the purchaser or purchasers or on payment or tender thereof to anyone claiming under such purchase, the principal money bid at such sale, with ten percent interest per annum thereon, together with all such other lawful charges, if any there be, to redeem the interest that may have been sold, and upon payment or tender thereof as aforesaid in such bank notes as are receivable on executions, it shall be the duty of the then claimant to reconvey said interest to said debtor, but at the cost and charge of such debtor."

The substance of the bill, answer, and proofs is stated in the decree of the circuit court as follows:

"The complainant set forth in the bill that he was a citizen of the State of Tennessee and that on 3 September,

Page 33 U. S. 19

1824, he was seized and possessed in his own right of a tract of land situate in Lincoln County in said state containing about three hundred and fifty acres, bounded on the south by the land of Robert Case, on the north by that of Robert Wilson, on the east by the land of Joel Cummins, and the west by the land of John Marr and John W. Blake; that on the said 3 September, 1824, the same was sold by the proper officer under an execution founded on a decree of the chancery court, held at Columbia, rendered in favor of James Brittain, executor of the last will, &c. of Joseph Brittain deceased against complainant and others; that said James Brittain became the purchaser of said tract of land at said sale for the price of $162 and received the sheriff's deed therefor; that James Erwin, a citizen of the State of Louisiana, in the month of September, 1823, obtained a judgment against complainant and others, securities of one Brice M. Garner, for the sum of upwards of $1,200; that on 21 August, 1826, one John P. McConnell, having acquired an interest in said last mentioned judgment in pursuance of an arrangement with said James Erwin and for the benefit of himself and said Erwin, redeemed said tract of land from said James Brittain by advancing the purchase money paid for the same by said Brittain, together with ten percent interest thereon, and offered to credit said judgment of said Erwin, against complainant, the sum of $1,000 under the provisions of an Act of Assembly of the State of Tennessee passed in the year 1820, and therefore said James Brittain conveyed said tract of land to said Erwin."

"Said bill further set forth that the complainant, with a view to avail himself of the privilege of redeeming said tract of land from said Erwin, did, before the expiration of the term of two years from the date of said sheriff's sale, pay to James Fulton, the attorney and agent of said Erwin, $1.276.70, including the amount advanced by said Erwin and McConnell to said Brittain, and also $1,094.70 of the said judgment of said Erwin against complainant, leaving a balance due on said judgment of $223.55, which one Robert Dickson assumed to pay to said McConnell, who was interested in said judgment of said Erwin to the amount, as

Page 33 U. S. 20

complainant was informed and believed, and said McConnell accepted said assumpsit in satisfaction of so much of said judgment. Said bill further charges that said James Fulton was fully authorized to receive said money by said Erwin on the application of complainant to redeem said land, and that McConnell was authorized, and had a right to relieve complainant from the payment of so much of said judgment as said Dickson assumed to pay; that nevertheless he, said Erwin, had refused to reconvey said tract of land to complainant, although he had received said sum of money, paid to the said James Fulton, his agent, as said agent had informed complainant; but had commenced an action of ejectment in this honorable court to recover possession of the same. The bill prayed that complainant might be permitted to redeem said land and that the legal title to the same might, by decree of the court, be divested out of the said James Erwin, and be vested in the complainant, and his heirs, and for personal relief."

"The defendant admitted in his answer the purchase of the tract of land by Brittain under execution the day and year set forth in the bill, and for the price therein specified; that he had recovered a judgment against complainant, as set forth in the bill, and that McConnell had redeemed the land from James Brittain, as alleged by complainant, for his, the defendant's, benefit, and that Brittain had conveyed the land to him. The defendant denied that McConnell had any interest in the judgment obtained in the name of the defendant against complainant, but admitted that he had sold the note upon which said payment was founded to McConnell; that he had received about $200 in part payment for the same, and that he had taken McConnell's note for the balance, upon which he had brought suit and obtained a judgment before September, 1826, but alleged that it was understood between him and McConnell and before that time that he, defendant, should have the benefit of the judgment against Garner and complainants, and when paid was to be in discharge of the judgment which defendant had obtained against McConnell. The defendant denied that James Fulton or any other person for him was authorized to receive anything else than specie or to make any arrangements in regard to the payment of the amount necessary to be paid by complainant within two years from the

Page 33 U. S. 21

date of the sale of said land than were implied in his instructions to the said Fulton, which he alleges were that the whole sum should be paid in specie. Defendant denied that he had received any money from said Blake or anyone else in payment of his claim against said complainant, and insisted that the provisions of the act of assembly had not been complied with in such manner as to entitle complainant to redeem."

"It appeared from the proofs in the cause that some short time before 3 September, 1826, when it appeared the term had expired within which the complainant had a right to redeem the said tract of land, the defendant Erwin was in the County of Lincoln, where all the persons concerned except himself resided, and in the presence of Garner, the principal in the judgment recovered by Erwin against complainant, and who was also clerk of the county court of said county, directed James Fulton, Esq., who had been the attorney employed in prosecuting the suit in which judgment had been obtained against complainant, to receive the money which might be tendered by complainant for the purpose of redeeming said tract of land, and if he thought it a case which was entitled to specie, to require the payment to be made in specie. It further appeared that Fulton, having business in another county, appointed one Francis Porterfield to attend to the business for him in his absence, and instructed him to receive from complainant nothing but specie or bank notes at such a discount as would make them equivalent to specie. It also appeared that Brice M. Garner was insolvent and unprincipled; that a principal object of said Erwin in requesting Fulton to receive the money from complainant was to prevent a fraudulent acknowledgement of payment of the redemption money by Garner, who, as clerk of the county court, had a right to receive it in the absence of the creditor. For this reason, Fulton appeared to have been particular in his instructions to Porterfield to prevent the payment of the money into the hands of Garner and to see that he did not practice any fraud upon Erwin in the county court."

"It further appeared that on 2 September, 1826, the complainant paid into the hands of Porterfield, under the instructions of Fulton, the sum of nine hundred dollars, the principal part thereof in specie and the balance in such bank notes as made them equivalent to specie;

Page 33 U. S. 22

that said Porterfield agreed to accept the promise or assumpsit of William Husbands, the sheriff of the county, for the payment of $300 in satisfaction of so much, and that J. P. McConnell agreed that he would look to one R. Dickson for the $200, the amount to which he alleged he was entitled out of the judgment against complainant. Porterfield at the same time pledged himself that Fulton, the lawyer and agent of Erwin, would sanction the arrangement and that the complainant should sustain no injury in consequence of it. It appeared that Fulton, the agent, did sanction what had been done by Porterfield in his absence, and, on 7 September, 1826, gave complainant a receipt, in the name of said Erwin, for the sum of $1,276.76, and at the same time recognized the right of said McConnell to control so much of said judgment as he claimed an interest in."

"It further appeared to the court by the testimony of the witness present that when Erwin requested Fulton to attend to the receipt of the redemption money, he had given him full authority to act for him, and that whatever he might do would be acquiesced in. It also appeared that Erwin, by his letter of 8 September, 1826, to Fulton, written after he had been informed, by a letter from McConnell, of many of the most material particulars of the arrangement of 2 September, admitted the authority of Fulton to bind him by anything done under his, Fulton's, instructions or authority or by anyone appointed by him and acting under his instructions. It further appeared that McConnell continued to have an interest in the judgment obtained against complainant, up to 2 September, 1826, and that he had employed counsel, and had the management of the whole business until the instructions were given to said Fulton by Erwin a short time before the day on which the money was paid. It also appeared that said Erwin had notice of the appointment of said Porterfield by Fulton to act in the matter for him before 2 September, 1826, and that he did not object to his appointment. It did not appear that the complainant had any notice of the instruction of Erwin to his agent that nothing but specie would be received. The money received by Fulton appeared to have been paid over to the agent of Erwin, but it did not appear that Erwin

Page 33 U. S. 23

had ever received it. The balance of the amount he had a right to demand, and for which Husbands became accountable, Erwin refused to receive. "

Page 33 U. S. 24

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