MILLER V. SHERRY, 69 U. S. 237 (1864)

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U.S. Supreme Court

Miller v. Sherry, 69 U.S. 2 Wall. 237 237 (1864)

Miller v. Sherry

69 U.S. (2 Wall.) 237


1. A creditor's bill, to be a lis pendens and to operate as a notice against real estate, must be so definite in the description of the estate as that anyone reading it can learn thereby what property is the subject of the litigation. If it is not so, it will be postponed to a junior bill which is.

2. A party entitled to a homestead reservation under the laws of Illinois --

Page 69 U. S. 238

whose property in which it is a court of chancery has ordered in general terms to be sold to satisfy a creditor whom he had attempted to defraud by a secret conveyance of it -- must set up his right, if at all, before the property is thus sold. He cannot set it up collaterally after the sale, and so defeat an ejectment brought by a purchaser to put him out of possession.

3. When chancery has full jurisdiction as to both persons and property, and decrees that a master of the court sell and convey real estate, the subject of a bill before it, a sale and conveyance in conformity to such decree, is its effectual to convey the title as the deed of a sheriff, made pursuant to execution on a judgment at law. The defendant whose property is sold need not join in the deed.

Sherry had obtained a judgment in ejectment for some lots and a house on them, in Illinois, against Miller, in the circuit court for the Northern District of that state, and this was a writ of error to reverse it.

It appeared, on the trial below, that W. & W. Lyon had obtained a judgment against Miller in October, 1858, and sued out a fi. fa., on which nulla bona was returned. In February, 1859, they filed a creditor's bill against the same Miller, his wife, and one Williams (son-in-law of Miller), charging that Miller had, on the 6th of April, 1857, conveyed the premises now in controversy -- describing them, and describing them, moreover, as lots, which at the time of the conveyance, and at the time of the bill filed, Miller occupied, and, with his family, resided on -- to this Williams, to defraud creditors, and praying that the deed should be set aside, the premises sold, and his debt paid out of the proceeds. Miller and Williams answered the bill. In June, 1860, the cause was heard, the deed set aside as fraudulent, and the master in chancery for the court ordered to sell the premises, and to execute to the purchaser good and sufficient deeds of conveyance, and that the sale so made shall bar and divest all, and all manner of interest or right, which the said Miller or any of the defendants might have in the property or in any part of it. The master accordingly did sell, for $1,867, and by deed convey, in September, 1860, the premises to one Bushnell, who conveyed to Sherry, plaintiff below.

It further appeared that a firm named Mills & Bliss had

Page 69 U. S. 239

also obtained a judgment against Miller in the same court in October, 1857 -- that is to say, a year before the judgment of W. & W. Lyon -- and that on a fi. fa. issued upon it nulla bona was also returned. In April, 1858, Mills & Bliss filed a creditor's bill against Miller and a certain Richardson, Williams, the son-in-law of Miller, and person to whom, by deed of 6th of April, 1857, he had conveyed the house and lots in controversy, not being made a party. This bill -- which, it will be noted, was filed several months before the bill of W. & W. Lyon -- charged a variety of frauds in general terms, against Miller, and particularly, that he had "made a sale of his stock of goods and merchandise, notes and accounts, at Ottawa aforesaid, and of great value, to this defendant, Richardson." It also charged that Miller was, at the time when the judgment was obtained,

"and now is, the owner, or in some way or manner beneficially interested in some real estate in this, or some other state or territory, or some chattels real of some name or kind, or some contract or agreement relating to some real estate, or the rents, issues, and profits of some real estate."

But the bill, unlike that of W. & W. Lyon, contained no reference to the specific property, the subject of the ejectment. And there was no reference to real estate in the charging part of the bill other than the general one of "some real estate," &c., as above given. There was a special prayer that the sale to Richardson should be declared void and that the property or its avails should be applied to the payment of the judgment of Mills & Bliss.

The matter being referred to a master, Miller, was examined before him. He, Miller, then disclosed the fact of the conveyance of the house and lots to Williams, his son-in-law, by the deed of April, 1857. In March, 1860, the master filed his report containing the evidence just stated. Upon this, Mills & Bliss (December, 1860), filed an amendment to their original bill making Williams a party, process being issued against him, but the process not being served. This amendment charged that the deed of Miller to Williams of April, 1857, was fraudulent and void. Williams did not

Page 69 U. S. 240

answer, and the bill as to him was dismissed. A receiver was appointed July 13, 1861, and Miller was ordered to convey to him, which he did on the 26th of that same month. The deed embraced, by description, the premises in controversy, but they were conveyed, subject to the rights which Miller might have in them "under the homestead law of Illinois."

Pursuant to an order of court, the receiver, on the 23d of August, 1861, sold and conveyed the property for $500 to one Benedict, the deed, like Miller's own to the receiver, being subject to the reservation of the "homestead right."

In reference to this reservation it is necessary here to state that a statute of Illinois enacts that "the lot of ground and the buildings thereon, occupied as a residence, and owned by a debtor being a householder, and having a family," to the value of one thousand dollars, "shall be exempt from levy and forced sale, under any process or order from any court of law or equity in this state," and it further declares, that

"No release or waiver of such exemption shall be valid, unless the same shall be in writing, subscribed by such householder, and his wife, if he have one, and acknowledged in the same manner as conveyances of real estate are by law required to be acknowledged, it being the object of this act to require, in all cases, the signature and acknowledgment of the wife as conditions to the alienation of the homestead."

At the time of the ejectment below, Miller was living with his wife and children in a house on the premises sold; which were worth about $2,700.

Upon these facts, the counsel of the plaintiff below asked the court to charge the jury:

1. That Mills & Bliss, by filing their bill against Miller, and service of process, obtained a lien upon all the property and effects of Miller, which lien had, by the decree and sale of the receiver, passed into a title in Benedict which title related back to the service of process, and had become paramount to the title of the plaintiff.

2. That the defendant was entitled to a homestead right under the laws of the State of Illinois, in such cases made

Page 69 U. S. 241

and provided, which he could set up as a defense in this case.

The court gave neither instruction, but gave instructions in substance the reverse of them. Its action herein was the question before this Court.

Page 69 U. S. 248

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