Jesse B. Clements, Plaintiff in Error, v. Daniel Berry, 11 How. 398

Mr. Justice McLEAN delivered the opinion of the court. This case is brought here by a writ of error-to the Supreme Court of the State of Tennessee, under the twenty-fifth

section of the Judiciary Act. Thé jurisdiction of this court is the first question to be considered. The plaintiff sets up a lien on certain personal property, under a judgment rendered by the Circuit Court of the United States, held for the Middle District of Tennessee. The defendant asserts a lien under a deed of trust for the property, from Charles F. Berry, and the Supreme Court of Tennessee held that the. lien of the deed was paramount to that of the judgment.

This brings the case within the twenty-fifth section, as the decision was against the right asserted by Clements, under the authority of the United States. • The judgment was obtained by the firm of Inskeep, Moulton, & Woodruff, at March term, 1848, for $ 1,316.68, against Charles F. Berry. The declaration was filed on the 1st of March; rule for plea by the 8th of March; no plea being filed within the rule, a judgment-was entered'by default.

On the 10th of March “ the plaintiffs appear by their attorney, and a judgment by default having been taken in this cause on the 8th of March, .1848, and no motion having been made to have thej same set aside, it is therefore considered by the court that said judgment by default be affirmed,” &c. The deed of trust was received at the register’s office fifty-one minutes after nine, A. M., on the 10th of March, the same day the deed bears date. The court, it seems, was opened on the 10th, at ten o’clock, Á. M.; so that the deed was deposited with the register nine minutes before the court opened on that day.

The register, by law, is required to enter on a record the exact time that an instrument is filed for record, and the lien attaches from such entry. . Execution was issued on the judgment, tested the firát Monday of March, the day at which the term commenced. It, was levied upon part of the goods assigned in the deed of trust, and those goods were replevied by Daniel Berry, the trustee, from Clements the marshal. .

It is.the uniform practice of the federal,and State courts.of Tennessee, to test executions as on the first day of the teriri; and the lien is held equally to attach to all the judgments, as regards creditors, entered at the same term. This rule would not apply, perhaps, to a bond fide purchaser of real estate for a valuable consideration, beyond the day on which the judgment was rendered. It is admitted that the statute of 29 Charles II., as to the liens of judgments and executions, is not in force in Tennessee) and that the lien is regulated by the common Ihw, modified, to some extent, by statutes.

As against a bond, fide purchaser of personal property, the lien would not attach prior to the award of- execution. But the trustee in this case cannot be considered a purchaser, as the assignment was made to him, not on a purchase for. a valuable consideration, but for the benefit of certain creditors. It would present a singular. anomaly in judicial proceedings, if the fruits of a judgment cóuld be defeated by a transfer of all the property of the defendant, on the day pf its rendition; and with the express view of avoiding the claim of the plaintiff in the judgment, by giving a preference to other creditors.

That such an assignment would be fraudulent, as tending to delay and defeat creditors, is clear, but no such defence was made in the State court. The decision: must turn upon the effect of the entries made on the minutes of the Circuit Court. The term of the court commenced on the 6th of March. The declaration was filed bn the 1st of March, and a rule for plea was taken in court by the 8th. The rule of court provides, that if thé pléadihgs are not filed by the defendant on or before the first day of thé term, the court may on that day fix the time when the pleadings are to.be closed and judgment entered.

The plea not being filed within the rule, a judgment by default was entered. Novy a judgment by defaiilt is interlocutory or final. When the action souñds in damages, as covenant, trover, trespass, &c., it is only interlocutory, that the plaintiff ought to recover his damages, leaving the amount of ’; them to be. afterwards ascertained. 1 Tidd’s Pr. 568. Brit where the . amount of the judgment is entered by the calculation of the clerk, no further steps being necessary, by a jury, or otherwise, to ascertain the amount, the judgment is final. .And of this character was the judgment entered on the • 8th of March.

The action was debt, brought upon several notes of hand; the default admitted the éxecution of the notes, and the judgment which followed was final, leaving the- clerk to make it up in form. The affirmance of this judgment On the lüth of March was unnecessary, as the judgment df thé court, bn the 8th concluded the matter in controversy.

It was a mére clerical duty to make the palculation and enter the judgment in form; and the entry bn the 10th can be considered, in-regard to the lien in question, in effect as nothing more than the performance of this clerical duty, which had been authorized by the entry ón the 8th. It was an affirmance of that which already had been fixed, by the judgment of the court. What remained to be done was matter of form, as it added nothing to the legal effect of the judgment by default.

Had the defendant been called and a default entered against him, the case would have stood for judgment at a future call of the docket. But under the rule of the court, “ the pleadings were to be closed on the 8th and judgment- entered.” The defendant failed to plead, and a judgment by default consequently, followed. The action being debt, founded upon notes of hand, which were admitted to be genuine by the default, the court saw that no inquiry was necessary, and the judgment was therefore directed to be entered. That judgment was final according to the forms of entering judgments at the common law.

The omission by the clerk to make the calculation of the amount of the judgment, and enter it in form, on the 8th of March, was supplied by the entry on the 10th. Such entry, therefore, we think, may be considered as having relation to the first judgment. It is said to be a legal absurdity to suppose that the lien of the execution can attach prior to the judgment. An execution can be of no validity which has not a judgment to support it.

But' the judgments entered on the last day of the term, by the law of Tennessee, have relation to the first day of the term, so as to place all the judgments entered at the term on an equality in regard to liens. This it is said is proper to do equal jus-, tice to creditors, whose judgments were necessarily entered on different days of the term, from the arrangement of the causes on the docket. But it is said, that a bona fide purchaser for a valuable consideration would limit the lien of the judgment and execution to the time the judgment was rendered.

If this be so, it.is not perceived how the principle; can be applied to the case before us, unléss the defendant in error be considered á bond fide purchaser. He cannot place himself in that attitude. He holds the property in trust for the creditors named, having paid at the time no consideration for it; and having, as maybe presumed from the'circumstances, a knowledge that the assignment was made to avoid the effect of the judgment against the assignor. It would be difficult to maintain that this was a bom fide transaction, and especi^ly that it was entitled to the favorable consideration of the court.

In no sense can it be considered a bona fide sale for a valuable consideration. The trustee is made the agent to pay the creditors named, and he represents their interests as creditors.

But if the. property had. been sold bond fide, from the effect of the judgment by default, and the relation to it of the formal judgment of affirmance subsequently entered, the lien would attach from the judgment on the 8th. ■ We admit that the lien of the judgment and execution in the federal courts arises under the State laws; and that the lien may be considered as a rule of property, and a rule of decision under the thirty-fourth

section of the Judiciary Act of 1789. But the preparatory steps, by which the judgment is obtained and the lien established, depend upon the practice of the court; and that practice is settled by the federal courts, and not by the courts of the State.

The process act of 1828 “adopted the forms of mesne process, except the style and forms and modes of proceeding in suits in the courts of the United States held in those States, &c., subject, however, to such alterations and additions as the said eourts of the United States respectively shall, in their discretion, deem expedient, or. •to such regulations as the Supreme Court shall prescribe.” The entry by the register of the precise time at which all instruments are deposited with him for record,’ as required by the act of Tennessee, is no doubt a very proper regulation; It is salutary in relation to instruments deposited for record on the same day. ■ In such cases the priority of time may be ascertained with certainty ; but when the fractions of. a day iare to be compared, under such entries, to a judgment lien, the propriety of the rule is not so apparent.

The case before us would present a point of no small, difficulty. From the entry, the trust deed appears to have 'been deposited for récord nine minutes before the court was opened. And this is to render inoperative the lien of the judgment. Now, how is the fact to be ascertained with certainty 2 Where shall the exact standard of time be found. A variation of nine or ten minutes is not uncommon in chronometers; and the timepiece of the register, it is supposed, could have no exclusive claim to regulate judgment liens.

Whether good or bad, it would answer the purpose designed, by showing the priorities of instruments left for record; But the test in regard to judgment liens would be uncertain and unsatisfactory. As a rule of property it would seem to be, at • least in many cases, impracticable. How can one, five, or ten minutes be ascertained with the requisite certainty, to lay the foundation of a right 2 It would hardly be contended that the entry of a. ministerial officer, though made by authority of law, should limit or defeat a judgment lien in such a case.

No other decision of the Supreme Court of Tennessee .than the one now before us is applicable to this question.. And if the case to be reviewed is to constitute the rule for our decision, as insisted,-the power of revision would be useless. Whilst we follow the construction of a State statute, established by the Supreme, Court of the State, care must be taken that our jurisdiction and practice shall not be limited or controlled by the statutes or decisions of the State, beyond the acts of' Congress.

The judgment of the State court'is reversed, and the cause is remanded, to that court for further proceedings in conformity with this opinion. ' Mr. Chief Justice TANEY, Mr. Justice CATRON, Mr. Justice DANIEL, and'Mr. Justice NELSON dissented. . Mr. Justice CATRON. By rule of court made when only one term was held in the year for the Districts of Tennessee, the United States Circuit .Court adopted a rule requiring a copy, of the declaration to be sent out with the writ, in all cases of suits on written agreements for the payment of money, where the plaintiff desires to obtain judgment at the return term.

If a copy of this declaration is served with the writ on the defendant thirty days before the court commences, then the defendant is required to plead before the, first day of the term ; and if he fails to do so, it is the duty of the clerk to enter judgment by default at his office. This fact he reports to the court in all cases. And then such further time is given for,making up the pleadings as may be deemed proper by the ■ court itself; thus extending thb time usually three days. But at March term, 1848, only two additional days to plead were allowed.

This office' judgment has no force in itself, further than to Speed the. final judgment. It. stands over, like other causes, triable on an issue. When it is reached,on the docket in due course, a jury inquires of damages ; or if the sum be certain, then a regular and binding judgment is entered of record by the court. An execution is uniformly awarded in terms by the final judgment, and to which the execution on its face refers, by a briéf recital. • ■ To this award of execution the fieri facias relates, and binds personal property of the defendant. • The.

United States courts are governed by the State laws creating a lien; and the State laws are settled by uniform’ adjudications that the lien attaches by a final judgment and award of execution. From that time defendant’s properly is in custody of the law. Johnson, v.' Ball, 1 Yerger, 292. = • In this case there is no allegation of fraud. The debtor transferred his property to a trustee honestly and fairly,, according to the face of this record. By the law of Tennessee, the deed of trust took effect the moment it was delivered to the register to be recorded.

It was his duty by express law to in* dorse on the deed the exact time of delivery. After that, all liens were cut off. This was done before the judgment was rendered. It matters not whether defendant parted with his-property on the day the judgment was rendered, or on a subsequent day, as he was divested of it the moment the trustee delivered the deed to be recorded.

If it was otherwise, and the execution related to a judgment by default (which might remain .unconfirmed for months), all executions or final judgments, where a default had been entered, would bind from the first day of the term, and overreach sales made by retail dealers to an alarming extent; a doctrine unknown and altogether inadmissible in the State of Tennessee, or. elsewhere, so far as I kno\v.

The Supreme Court of Tennessee (to revise whose decision this writ of error is prosecuted) laid down the law correctly, as I think, in its opinion in this cause, and I am of opinion that the judgment ought to be affirmed.- And I am instructed to say for my brother Nelson, who heard the cause, but is now absent, that this is his opinion also. Order. This cause came on to be heard on the transcript of the record from the Supreme Court of the. State of Tennessee,' and was argued by counsel.

On consideration whereof, it is no\y here ordered and adjudged by this court, that-the judgment of the said Supreme Court in this cause be, and the same is hereby, reversed, with costs, and -that this cause be, and the same is hereby, remanded to the said Supreme Court,'-for further proceedings to be had therein, in conformity to' the Opinion of this cft-urt.