# Van Ness v. Hyatt

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United States Supreme Court
38 U.S. 294
Van Ness v. Hyatt
APPEAL from the Circuit Court of the United States, for the county of Washington, in the District of Columbia.
In November, 1836, the appellant filed a bill in the Circuit Court against Alpheus Hyatt and others. The following were the important facts in the case, as sustained by the evidence:
In December, 1818, William Cocklin leased to James Shields a lot of ground in the city of Washington, for ten years, from January 1st, 1819, for the rent of thirty-five dollars per annum. The lessee covenanted to erect and build, within twelve months, a two-story brick house upon the lot; and the parties agreed, that if at or before the expiration of the lease, the lessee should pay to the lessor the sum of three hundred and seventy-five dollars, the rent should cease, and so if a portion or part of the sum of three hundred and seventy-five dollars should be paid within the time, the rent should be diminished according to the sum or sums paid. On the payment of the whole of the sum, William Cocklin was to make to the lessee a good and sufficient title in fee simple to the lot.
James Shields, on the 23d of September, 1823, mortgaged the lot and improvements upon it to John Franks, to secure a debt of $1127; and on the 7th day of May, 1825, the mortgagee assigned all his right and title under the mortgage to Alpheus Hyatt, one of the appellees; and on the 9th day of May, 1825, James Shields released all his interest in the lot to Alpheus Hyatt, for the consideration of two hundred dollars. Subsequently, in May, 1826, Alpheus Hyatt, having paid to the heirs and representatives of William Cocklin the whole sum of three hundred and seventy-five dollars, and the intermediate rent, they released to him the premises, and conveyed to him in fee simple all their right, title, and property in the same.
On the eighth day of November, 1823, John P. Van Ness, the appellant, obtained, before a magistrate of the county of Washington, a judgment for thirty dollars and twenty-five cents, against James Shields, and he caused a fieri facias to be issued on the judgment, on the 10th of June, 1824, under which a levy was made by the constable having the process, on the right, title, interest, estate, and claim of James Shields, in and to the lot originally held by him, under the lease and agreement with William Cocklin. The property levied upon was sold by the constable, under the process for the sum of fifty-four dollars, on the 10th of July, 1824; and John P. Van Ness, the appellant, became the purchaser thereof on the 19th day of August, 1825: the constable conveyed the premises sold by him, to the appellant, by a deed of indenture, which was recorded on the 9th of January, 1826.
The appellant having filed his bill stating all the facts, and alleging the conveyances made by Shields and Franks, and the heirs and representatives of William Cocklin to have been erroneous and fraudulent, and avering his full readiness to pay the heirs and representatives of William Cocklin, or to the representatives of Franks, all that Shields was bound to pay to them; prayed a decree that the property should be assigned to him, and that he should be quieted in the possession of the same; and for general relief.
There was no evidence to support the allegations of fraud stated in the bill, nor was there any proof given of notice to the appellees of the same. The answers, as far as they were responsive to the bill, and the several exhibits with the bill and the answers, were the only proofs in the cause.
The Circuit Court, after a hearing of the parties by their counsel, dismissed the bill with costs; and the complainant prosecuted this appeal.
The case was argued by Mr. Hoban and Coxe, for the appellant; and by Mr. Key for the appellees.
For the appellant, it was contended, that the Circuit Court erred in refusing the prayer contained in the bill.
That the sale of the constable conveyed the estate of Shields at the time to Van Ness.
That there is no proof of any other incumbrance on the property, than the purchase-money and rent, when Van Ness purchased.
Mr. Hoban considered the interest of Shields in the lot, at the time of the sale by the constable, as one liable to execution. The mortgagor in possession is the owner of the property, and his interest may be levied upon and sold. Cited, M'Call vs. Lenox, 9 Serg. and Rawle, 230. 2 Greenleaf's Rep. 132. 16 Mass. Rep. 305. 4 Johns. Rep. 41. 10 Johns. Rep. 481. 12 Johns. Rep. 521. 1 Barn. and Ald. 230. 3 Paige's Rep. 219. 9 Cranch's Rep. 153.
Coxe, also for the appellant, contended, that the interest of Shields in the land, was such as was the subject of an execution; and that the deed from the constable to the appellant conveyed that interest. It was recorded within the time required by law, and was a valid and efficient deed. The mortgagor is the owner of the property mortgaged against all the world, the mortgagee excepted.
Mr. Key for the appellees:--
The appellant acquired no lien on the property of Shields by the judgment obtained before a magistrate. This is prohibited by the act of Congress of March, 1823. Birch's Digest, 311. Nor was any acquired by the levy made under the fieri facias issued under the judgment. This is the consequence of the provision of the act of Congress against a lien. There is no record of judgments before magistrates, and therefore no notice of them. The same may be said as to the sale by the constable; and until the deed of August, 1825, was recorded in January, 1826, nothing could be known of the proceedings by which a bona fide purchaser might protect himself.
Shields had no property which could be made the subject of a levy. In May previous to the proceeding he had mortgaged the lot to Franks, who subsequently, before the constable's sale, conveyed the mortgaged interest to Alpheus Hyatt. On the 9th of May, 1825, Shields released all his interest in the premises to Mr. Hyatt.
But Shields had no interest upon which a levy could be made under the lease from Cocklin; or if he had an interest under the lease, it expired on the 1st of January, 1826. The appellant applied in 1836 to the heirs of the lessor, to redeem in 1836, when all the interest under the lease was sure.
Shields had nothing but an equity of redemption on the property; and this in the District of Columbia, which is regulated by the law of Maryland prevailing when the territory was ceded to the United States, could not be levied upon. 8 East, 484. 2 Saunders, 11. Act of Maryland of 1810, ch. 130. 9 Cranch, 496. 2 Harris and M'Henry, 355. 5 Harris and Johns. 315.
Mr. Justice BARBOUR 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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