AMERICAN ASS'N, Limited, v. HURST et al., 59 F. 1

TAFT, Circuit Judge, (after stating the facts.) The court helow held that the remedy sought by complainant was forbidden in the federal court by

section 720 of the Revised Statutes, which declares that the writ of injunction shall not be granted by any court of the United States to stop proceedings in any court of a state, except in cases where such injunction may be áuthorizéd by any law relating to proceedings in bankruptcy. The questions necessary for us to consider are — First, whether the sale of land by a sheriff under an execution issued out of a Kentucky court of equity on a sale bond filed therein against the sureties thereon is “a proceeding” in that court, within the meaning of

section 720, Rev. St.; and, second, whether such a sale is “a proceeding,” within the section, even if the land to be sold has been improperly levied upon as the land of a surety in the sale bond, and in fact belongs to another person, a stranger to the proceeding. 1. The provision authorizing executions on sale bonds is to be • found in

chapter 3-8, art. 11, of Bullitt & Feland’s Statutes of Kentucky, (page 500.), The first

section of the chapter" is as follows: “Every bond taken on tbe sale of property under an order or judgment in chancery or on the sale of property under execution and every replevin and forthcoming bond shall be signed by the principal and sureties and attested by the person taking the sam'e, or by some one in his presence. Subsec. 1. A bond so taken shall be 'returned to the proper office with a report of the acts of the person talcing it; and if taken under an execution, the latter must he returned with the bond. 2.

All such bonds shall have the force and effect of a judgment, and on which If not paid at maturity, an execution may issue and shall bo indorsed that no surety of any kind is to be taken.” Under the foregoing’ statute, the sale bond is a judgment against the -principal and sureties thereon. In Kentucky the sale made by the commissioner in equity is not complete until a report of its terms and the sale bond taken shall hare been returned to the court, and approved by a decree of confirmation. The right of the purchaser to take the property depends upon the sanction of that decree. Arnett v. Anderson, 11 Ky.

Law Rep. 671, 672; Forman v. Hunt. 3 Dana, 614, 621; Busey v. Hardin, 2 B. Mon. 411; Taylor v. Gilpin, 3 Metc. (Ky.) 546; Freem. Ex’ns, 304a. When the order confirming the action of ihe commissioner is entered, it gives life to the sale bond, which then becomes an accepted obligation binding the principal and sureties to complete the sale in accordance with the terms of the bond, and is in effect a confessed judgment for the amount of the bond.

It was formerly ihe practice in Kentucky, in proceedings in equity, for the chancellor to make an express provision in the order of sale that a sale bond for the deferred payments should be taken, which sale bond should have the effect of a judgment upon which an execution might issue. The bond was (lien taken by the commissioner, reported to the court, and his proceedings were confirmed. Debard v. Crow, 7 J. J. Marsh. 7, 10; Leavitt & Co. v. Goggin, 11 B. Mon. 229.

It could hardly be contended that the execution issued on a sale bond, which was given the effect of a judgment by special order of the court, was not a proceeding in that court. How that, by express statute, every order of sale impliedly require;® the giving of a sale bond, which shall have the effect of a judgment, it is equally clear that the approval of the sale bond makes the execution, issued thereon in accordance with the statute, a proceeding of the court in which the bond is filed.

"The claim of counsel that it is a mere ministerial process issuing from the office of the court, without judicial sancn'on, cannot be sustained. It has been held in a number of cases chat a purchaser al; a judicial sale becomes a quasi parly, and that, where credit is given to him under an order of a court of equity, the court retains jurisdiction to compel payment by him of ihe residue through attachment, or by resale of the property. Wood v. Mann, 3 Sumn. 318; Clarkson v. Read, 15 Grat. 288; Stephens v. Magruder, 31 Md. 168; Freem. Ex’ns, (2d Ed.) 313e.

The statutory provision which we are considering merely gives another remedy, by which the court is required to secure to the parties in the case before it, payment of the purchase price bid at the sale had and confirmed by its decree. 2.

But it is said that, even if an execution on a sale bond levied on the property of the obligees is a “proceeding” of the court in which the bond is filed, an attempt to levy such execution on the property of another, as the property of an obligor in the bond, is void, and as it is not authorized by the execution, and is without the authority of the court, neither the levy nor the sale under it are “proceedings” of the court, within

section 720. Counsel for appellant, to sustain this contention, rely on the case of Cropper v. Coburn, 2 Curt. 465, in which it was held by Mr. Justice Curtis, on the circuit, that the fifth

section of the act of March 2, 1793, (1 Stat. 334; now

section 720, Rev. St.,) did not prevent a United States court from enjoining a sheriff from levying on the property of A. under a process issued by a state court against B. In that case, Mr.

Justice Curtis said: “It must be admitted that an attachment on mense process out of a state court, which the sheriff is authorized by that process to make, is a proceeding in a court of a state, within the meaning of this act of congress; for the word ‘proceedings’ may properly include all steps taken by the court, or by its officers under its precepts, from the institution of the suit to the close of the final process which may issue thereon.

But it is equally clear that an attachment on mesne process, which the sheriff was not authorized by that process to make, is in no sense a proceeding of the court from which such process issued. Thus, if a sheriff, under a writ of attachment against tne property of A., should take his body, or the property of B., this would not be a proceeding of the court, but a mere trespass, for which any appropriate remedy may be instantly sought in any court having jurisdiction.

As Chancellor Kent remarked in his fourth Commentary, (page 410:) ‘If a marshal of the United States, under an execution in favor of the United States against A., should seize the person or property of B., then the state courts have jurisdiction to protect the person or property so illegally invaded.’ ” If this is sound, complainant’s bill ought net to have been dismissed, but the proposition thus laid down by Mr. Justice Curtis has not met the approval of the supreme court of the United States. In Freeman v.

Howe, 24 How. 450, that court held that when property was taken and held under process, mesne or final, by a court of the United States, it was in the custody of the law, and within the exclusive jurisdiction of the court from which the process issued, and that the possession of the officer of such court could not be disturbed by process from any state court. In this opinion the supreme court dissented from the language of Chancellor Kent, quoted and relied upon by Justice Curtis in Cropper v. Coburn, and reversed the decision of the supreme court of Massachusetts in Howe v.

Freeman, reported in 14 Gray, 566, which was based on the decision in Cropper v. Coburn. The decision of Freeman v. Howe is commented on at length, and reaffirmed, in Covell v. Heyman, 111 U. S. 176, 4 Sup. Ct. 355, in which Mr. Justice Matthews delivered the opinion of the court. The same learned justice, when sitting on the circuit in Perry v. Sharpe, 8 Fed. 15, refers to Cropper v. Coburn, 2 Curt. 465, as contrary to subsequent authority. The principle of Freeman v. Howe, was reaffirmed, also, in the case of Buck v. Colbath, 3 Wall. 334, and was followed in Daly v. Sheriff, 1 Woods, 175, and in Ruggles v.

Simonton, 3 Biss. 325. It is contended that Freeman v. Howe and the subsequent cases do /not apply to the case at bar because the result reached in them was founded solely on the public necessity of avoiding unseemly conflicts between courts over the possession of property, while this proceeding will affect only the levy of an execution on land and a sale thereunder; and by the law of Kentucky (McBurnie v. Over-street, 8 B. Mon. 303) a levy on land merely establishes a lien, and does not disturb possession. Tbe principle of the decisions in Freeman v. Howe, Buck v. Colbath, and Covell v.

Heyman has a much broader application than counsel for appellant concede.

The principle is that, in order to preserve the dignity and protect the effectiveness of the process of courts of concurrent jurisdiction, a,nd to avoid unseemly conflicts between them, and between their respective executive officers, no remedy of an injunctive or dispossessory character will he afforded by one court against the acts of the executive officers of the other court, when done under color of an order or process issuing from such other court, because it would have the inconvenient and anomalous effect to stay the -proceedings in one court to allow another court to investigate the validity of acts done under such proceedings.

A replevin of personal property in the hands of its officer, or an injunction against a levy upon personal property hy such officer, will certainly not more offend the dignity of the court, or more interfere with the due discharge of business before it, than will an injunction against a levy on real estate hy its officer under color of its process.

Moreover, the acts which it was here sought to enjoin were not mere levies upon real estate, hut were the sale of it, and the execution of a deed to the purchaser, with a possible writ of possession, or at least with title upon which to found ejectment; so that, even if the principle of Freeman v. Howe, and other like cases, only applies when there is to be a conflict of possession between one court and another, we think the remedy here sought would come within their inhibition.

Of course, in the case of tortious levies upon either personal property or real estate, the person injured may always hold the executive officer liable, as a tort feasor, for any wrong done in any court having jurisdiction; but comity and public policy require him to apply to the court issuing the process under color of which the wrong is or is about to be done for specific relief hy order of injunction, or restoration of property. In Buck v. Colbath, ubi supra, Mr. Justice Miller points out the two kinds of process under which a sheriff or a marshal acts.

In one, the order is directed against particular and described property; in the other, it is against all or any property of an individual to satisfy a judgment or decree or order of attachment. In the former case, the process is a complete protection to the officer executing it. In the latter case the marshal or sheriff is necessarily vested with a discretion to determine what property belongs to the debtor, in order that he may levy on it. For any injury he may do in the exercise of this discretion, he may be held liable in damages.

The process of the court does not protect him from such an action, hut it does shield him from injunction or replevin issuing out of another court, which would seriously interfere with and cripple the execution of the process of the court whose officer he is, by preventing an exercise by him of the discretion necessary to its efficiency.

In the light of this distinction, it is clear that the act, however tortious, of an executive officer of a court, done under color of its process, is to be regarded as a "proceeding” of that court, Which, comity and public policy require courts of concurrent jurisdiction not to interfere with by injunctive or dispossessory process. If this be the rule of comity and public policy in the absence of a Statute, it is conclusive in determining the true construction of

section 720, Rev. St., and the meaning of the words used therein, “proceedings in any court of the state.” That

section was passed, not to preserve cc-mity and harmonious action between courts of the same sovereign exercising concurrent jurisdiction, but to attain such an end, and prevent unseemly conflict between courts of different sovereigns exercising concurrent jurisdiction over the same territory. The purpose of the statute is so important that a liberal construction should be given to accomplish it. The decree of the court below dismissing the bill is affirmed.