BURTON V. SMITH, 38 U. S. 464 (1839)

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U.S. Supreme Court

Burton v. Smith, 38 U.S. 13 Pet. 464 464 (1839)

Burton v. Smith

38 U.S. (13 Pet.) 464


Under the laws of Virginia in relation to lands of which the debtor has an actual seizin, although there is no statute in Virginia which expressly makes a judgment or lien on the lands of the debtor, yet during the existence of the right of the plaintiff to take out an elegit, the lien of the judgment is universally acknowledged.

All the authorities, ancient and modern, agree in this proposition that a reversion after an estate for life is assets, or, as some of the books express it, quasi-assets, in the hands of the heir, in regard to the bond of the ancestor, binding heirs, and that in such case the plaintiff may take judgment of it, quando acciderit. Upon principle, it would seem to be clear that whatever estate descended to the heir which was liable as assets to the bond debt of the ancestor must be bound by a judgment obtained against the ancestor in his lifetime.

There is a current of authorities going to prove that a reversion after an estate for life is bound by a judgment obtained against the ancestor, from whom it immediately descended. So far from its being proper for a court to hesitate about decreeing a sale of an interest because it is reversionary, the character of the interest affords a stronger reason for such a decree. For although in regard to property in present actual possession, the elegit, although tardy in its operation, yet is in some degree an effective remedy, inasmuch as the creditor will by that means annually receive something towards his debt, whereas in the case of a dry reversion, if the outstanding life estate should continue during half a century, the creditor might look on in hopeless despondency, without the possibility of receiving a cent from that source, except through the interposition of a court of equity in decreeing a sale.

It is the very nature and essence of a lien that no matter into whose hands the property goes, it passes cum onere. If this were not the case, it would cease to be a lien.

The case, as stated in the opinion of the Court, was as follows:

"In the month of June, 1827, Smith and Kennedy obtained a judgment in the circuit court against Reuben Burton for $1,348.75, with interest from 14 of October, 1823, and costs. On this judgment an elegit was issued on 31 December, 1827. On 12 August in the same year, Reuben Burton by deed conveyed his real estate to certain trustees in trust to sell the same for the benefit of his creditors; amongst many other debts enumerated in the deed, the judgment already mentioned, recovered by Smith and Kennedy, was included."

"These last mentioned creditors, the appellees, never assented to or accepted anything under the trust deed. Burton having died, the only trustee who accepted the trust, on 21 December, 1829, sold, under the deed, all the estate, both real and personal, conveyed by it, and at that sale, Sarah Burton, by her agent, purchased, at the price of $1,000, the interest of Reuben Burton, that is two-fifth parts of a certain tract of land called Springfield, supposed to contain about five hundred acres, and also his interest in certain coal pits on the same tract. The character of Reuben Burton's interest in the Springfield tract of land, as appears from the record, was that of a reversion in fee after an estate for life. And the character

Page 38 U. S. 465

of his interest in the coal pits, as appears from an agreement in the record, was this:"

"The heirs of Daniel Burton, of whom Reuben Burton was one, were to have, during the widow's life, the right of occupying, using, and working the coal pits, and the right and power of sinking shafts, and searching for coal on any part of the land except the yard, &c., paying to the widow during her life the yearly sum of $200 for her dower interest. The same agreement will show his interest in a mineral spring included in the decree."

"After the death of Reuben Burton, the appellees, finding that there was no personal estate to satisfy their debt, in September, 1834, filed their bill to enforce the lien created by their judgment, making, amongst others, Sarah Burton a defendant as purchaser of the interest of Reuben Burton before described in the Springfield tract of land and coal pits."

She answered saying that the property conveyed to her was not purchased for her own benefit, but for the benefit of her son Thomas O. Burton, the appellant. She insisted in her answer that the appellees had no right to enforce their judgment, as more than five years has elapsed since the death of Reuben Burton. She denied that the judgment created any lien on the property purchased by her which was valid against her. She insisted that the appellees were entitled to no relief in equity, and that at all events a sale should not be decreed.

An amended bill was thereupon filed making Thomas O. Burton a defendant. He filed an answer insisting on the grounds taken by Sarah Burton.

The cause coming on to be heard, the court held the reversionary interest of Reuben Burton in the Springfield tract of land, and his interest in the right of occupying and working the coal pits thereon, and also his interest in the mineral spring thereon, with the twenty-five acres of land adjoining thereto, liable to the appellees' judgment, and decreed a moiety of Reuben Burton's interest to be sold.

From this decree an appeal was taken.

Page 38 U. S. 477

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