Lewis A. Collier, Plaintiff in error, v. Josiah Stanbrough, 6 How. 14

Mr. Justice CATRON delivered the opinion of the court. Lewis A.

Collier filed his petition in the District Court held for the Parish, of Madison, in the State of Louisiana, against Josiah Stanbrough and others, alleging that the Farmers’ Bank of Yirginia had recovered a judgment in the Circuit Court of the United States for the Eastern District in that State, against.David Stanbrough, as curator of the succession of Jesse Harper''; that an execution issued on the judgment, by which the marshal seized a debt belonging to the succession, due 'from Dougal McCall, evidenced by three notes of hand, and by a mortgage on land, securing the payment to be made to David Stanbrough, the curator; that the debt, amounting to 11,433 dollars, was seized and sold by the marshal, and said Collier became the purchaser, for the sum of 3,500 dollars, &c.

It is also alleged, that a fictitious indorsement had been made on one of the notes by the curator to Josiah Stanbrough, which the petition prays may be annulled, and that the. petitioner may have the benefit of his purchase by. judgment and execution on the notes and mortgaged property. The defendants answered, and insisted that the debt was not legally seized or levied upon; and, secondly, that it was not legally appraised or advertised, as required by law.

The facts were agreed, and it was admitted that the notes, in controversy were never appraised, and that the marshal sold them to Collier at a cash sale on the first biddings..

In the District Court, the law was adjudged to be for the defendants, and Collier’s petition was dismissed; and from this judgment he appealed to the Supreme Court of Louisiana, where the judgment was affirmed; and to' reverse this latter judgment, the plaintiff prosecuted' a writ- of error from this court to bring up the record; and this he had a right to do, as his claim, of title was founded on “ an authority exercised under the United States,” which, the judgment below drew in question, and the decision was against its validity. • The only question submitted for our consideration is whether the marshal’s sale .was void, or. .valid.

The Supreme Court of Louisiana declared, in its opinion found in the record, and preceding the judgment, “ that a creditor" residing ip another State cannot issue an execution upon the judgment' which he has obtained in the federal court against the executor or administrator of an estate, which is admitted in the Court of Probates as insolvent, and take the property out of the hands of such executor or administrator, and leave nothing for the other creditors,” — adding, that, as it was one of the admitted facts that .Harper’s estate had been insolvent [for several years before the seizure and sale were made, they were consecprently void.

But as this case has been argued here by counsel for the plaintiff, Collier, only, no one appearing for the defendant in error, we deem it proper to forbear touching the delicate question on which the Supreme Court of Louisiana founded its judgment of affirmance.

Its great importance in different States, and the difficulties attending it on either hand, because of the conflicts it is likely to produce between the tribunals of the State and the federal courts, strongly impress this court with the propriety of leaving the question open and uninfluenced by the present opinion, as no necessity exists for such a decision in this case.

The judgment of the State court pronounced the seizure and sale on the federal execution void; this judgment we are called on to revise, and if we find that it was proper, for the reasons given by the court below, or on other grounds manifestly appearing of record, and equally calling into exercise the jurisdiction of this court, it is our duty to affirm it; and we are of opinion that the judgment of the State court was proper, on another ground.

In Louisiana, the debts due to a,n execution debtor may be seized and sold on execution, like other movable property, and equally with the immovable property; in respect to lands seized on execution, it is necessary, before they are offered for sale, that they should be appraised by persons appointed for the purpose, and if, when offered at public sale, two thirds of the appraised value is not bid, the officer who is attempting to sell shall not adjudicate the sale, but cease, and readvertise the property, and again offer it at public outcry on a credit of twelve months; and this mode of proceeding, having been adopted by rule in the Circuit Court of the United States held in Louisiana, governs the marshal of that court.

Whether movable property was entitled to the benefit of the. provision seems not to have been definitively settled until 1845, in the .case of Phelps v.

Rightor and others (9 Robinson’s Rep. 541), when it was adjudged by the Supreme Court of Louisiana, that movable property (of the same description that is here in controversy) could not be legally sold by a sheriff in virtue of an execution, without having been first appraised at its cash value, and that then the cash bid on the first offer must be equal, at least, to two thirds of the appraised value; and for want of such an appraisement and bid, the adjudication of a cash sale on the first offer to sell was void, for want of power in the officer. And it is proper to remark, that, in the case of Gantly v.

Ewing (3 Howard, 707), this court declared a similar principle to apply in a case arising under a law of Indiana, which provided that the fee simple of real estate should not be sold, until the sheriff had, at the time and place of sale, first offered the rents and profits of the land for a term of seven years at public outcry, and if no bid was had for the rents and profits sufficient to satisfy <the execution, then the sheriff should proceed to sell the fee.

In that case the sheriff had proceeded to sell the fee-simple estate without first offering the rents and profits for the seven years’ term, and this court held . that the' sale was void, for want of power in the sheriff to make it before he coir plied with the previous step, forasmuch as the power to sell the fee simple arose for want of a bid for the term. In principle, that'case and the one under consideration cannot be distinguished.

In each it was immaterial whether the purchaser had or had not knowledge of the fact, that the officer had not taken the first step, as on that step the power to sell first arose. In this case, no appraisement was had, and the debt on the first bidding was struck off to Collier, for less than one third of the amount called for by the three notes and the mortgage to secure them; and these facts being admitted on the record, it follows that the sale was void, and that the judgment of the Supreme Court of Louisiana must be affirmed. Order.

This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be and the same is hereby affirmed, with costs.