# Bank of Tennessee v. Horn

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United States Supreme Court
58 U.S. 157
Bank of Tennessee v. Horn
THIS case was brought up, by writ of error, from the circuit court of the United States for the eastern district of Louisiana.
The facts are stated in the opinion of the court.
Horn, who was the purchaser of the property under the syndic, instituted a petitory suit in the third judicial district court of the State of Louisiana, against Bernard and Hare, who were tenants under the Bank of Tennessee. The Bank appeared to the suit, and prayed for the removal of the case to the circuit court of the United States for the eastern district of Louisiana, which was ordered.
The bill of exceptions which was taken upon the trial, showed the prayers addressed to the court by the counsel for the Bank, and the rulings of the court thereon. The bill was as follows:--
Be it remembered, that on the trial of this cause, the defendant, the Bank of Tennessee, preferred to the court the following propositions of law arising on the agreed statement of facts, on which it was insisted that this case should be decided in favor of said Bank, and against the plaintiff, Lewis B. Horn, to wit:--
1. The surrender of property by Peter Corney, in the state court of Louisiana, did not transfer to his creditors the ownership of any part or portion thereof, whether it was described or referred to in the schedule or not, but the same remained the property of Corney notwithstanding the surrender.
2. The words 'all the property of such insolvent debtor, mentioned in said schedule, shall be fully vested in his creditors,' used by the legislature of Louisiana, in the act of 1826, in regard to insolvent debtors, cannot and ought not to be construed to have reference to any property which is not mentioned in the schedule; but property not named in the schedule remains in the situation provided for by the laws of Louisiana in force prior to the passage of the act of 1826, and the rights of parties thereto were not altered by the passage of said act.
3. The only right which the creditors of Corney had in the property which was surrendered, was one analogous to that of pledge; that is, a right to take possession of and sell the property, according to the forms of law, and apply the proceeds to the payment of their debts, and was not a right of ownership.
4. That the surrender of Corney did not transfer to the creditors possession of any property whatever, whether mentioned in the schedule or not; but only conferred on them the right to take possession thereof, and to sell it in due course of law, to pay the debts due to them.
5. The right of the state court to cause to be sold such property as they had reduced into possession, did not oust the jurisdiction of the United States circuit court, in the case of the Bank of Tennessee v. P. Corney, but that court rightfully proceeded to render judgment against said Corney, and to execute the same, by seizing and selling the land in controversy.
6. Whatever may be the law in regard to the property described in the schedule, and reduced into the possession of the creditors or syndic, the circuit court had an undoubted right to execute its judgment, by causing the seizure and sale of property not reduced into the possession of the syndic, and not described on the schedule.
7. The act of the Louisiana legislature of 1826, in regard to insolvent debtors, was not intended to change the law in regard to the rights of any persons named therein, to the property of the insolvent, or to change in any manner the mode of proceeding in the state court to enforce those rights; the legislature having been extremely careful, by provisos, to retain exactly the old law in regard to the rights of property; but the said act was intended only to effect a change in the remedies or final process used in this court, by changing the names of rights; and therefore the court was bound altogether to disregard the said act of the Louisiana legislature, so far as that act affects the process of this court.
8. The syndic and auctioneer and Horn, as vendor and vendee, had no right to treat the marshal's sale as a nullity, or in any way to complain of it, after the sale by the marshal to the Bank of Tennessee had regularly been made, without any legal opposition on their part.
9. The acceptance of the surrender, by the second district court of New Orleans, and all orders made and all proceedings had in that court, have reference only to the property named in the inventory, unless some other property is expressly named in the proceeding itself; and therefore, they could have no effect whatever on the right of the marshal to execute process, by a seizure of property not named in the inventory, and not expressly referred to.
And prayed that the said propositions should be sustained, and the cause finally decided in favor of the Bank; but the court ruled all these propositions against the Bank of Tennessee, and held the following positions to be law applicable to the case:--
1. That the surrender, in the second district court of New Orleans, divested Corney of all his rights of property, and vested those rights in the creditors.
2. That because we had no lien and no right of payment in preference to others, therefore we had no right to execute our judgment in the circuit court, by a sale of Corney's property, although the fact of Corney's insolvency was not made known to the court, and no objection was made to our proceeding.
3. That the property was in gremio legis, by virtue of the constructive possession arising from the surrender in the second district court of New Orleans.
4. That it is but fair to assume that the property now in dispute was designed to be included by Corney in his schedule.
To all of which propositions as well as to the whole opinion of the court, which was reduced to writing, and copy of which is annexed to the bill of exceptions, the counsel of the Bank of Tennessee objected, on the ground that the said propositions made by the court, and its opinion, were contrary to law and justice, and tendered this, his bill of exceptions, to be signed by the court, which is accordingly done.
This bill in allowed so as to have the same construction as if the case had been submitted to a jury, and these exceptions had been taken on the trial.
J. A. CAMPBELL, Judge presiding.
Upon this bill of exceptions, the case came up to this court, and was submitted by Mr. Dunbar, upon a printed argument of Messrs. Stockton and Steele, for the plaintiffs in error, and argued by Mr. Janin, for the defendant.
Mr. Chief Justice TANEY delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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