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Vol. I.)

WALSH v. Barton.

(No. 8.

maintaining the road. Any property which the company then owned, or afterward acquired, which has in fact been used or appropriated for operating and maintaining the road, and none other, is subject to these mortgage liens. The defendant's purchase, therefore, was not incumbered by these mortgages.

2. In May, 1869, one William M. Picksley recovered a judgment in the superior court of Cincinnati, against the Marietta and Cincinnati Railroad Company, for $5,000 and costs. This judgment was a lien upon the lands sold to the defendant below, and was in full force at the time of decree for specific performance. No provision was made in the decree for the protection of the purchaser against this lien, by application of the purchase money or otherwise.

The defendants in error do not contend that the plaintiff in error should have been compelled to perform his contract and take the risk of having his property afterward subjected to the payment of this judgment; but they claim: 1. That this judgment has been superseded, and is now under review on proceedings in error in this court; and 2. That the judgment debtor is possessed of ample property, which must be exhausted before the property in controversy can be subjected to the payment of the judgment.

These arguments may be answered in several ways: 1. The facts upon which they are based do not appear in this record ; 2. If the facts be admitted, still the lien of the judgment is preserved notwithstanding a supersedeas bond may have been given, and if the judgment be affirmed, it is not at all clear that equity would compel the judgment creditor to first exhaust the property remaining in the railroad company before he could have satisfaction out of the property in question ; and 3. At all events the purchaser should not be required to assume either the risk or expense of prosecuting an action to compel the judgment creditor to seek satisfaction out of other property of the judgment debtor.

We think the liability of the lots in question to be taken for the satisfaction of this judgment is quite too imminent to justify a decree for specific performance against the purchaser, without at least protecting him against such hazard, by an application of the purchase money to the discharge of the judgment.

3. The lots of land in controversy are parts of a certain tract or tracts conveyed by the Marietta and Cincinnati Railroad Company to the defendants in error on the 22d of May, 1869. The line of the grantor's railroad was located upon the lands thus conveyed. The conveyance was by deed-poll, which contained the following stipulations, viz. :

“ But said tracts, and each of them, are subject to the obligation hereby imposed upon the grantees to discharge, and save harmless, the grantor herein from the duty of building or maintaining any fence on either side of its track through or between said lands ; and said grantees, in accepting this deed, assume said duty and obligation, and bind themselves, their heirs and assigns, to build and perpetually maintain, along the lines of the railroad of the grantor, on each side thereof (except where the same may be intersected or crossed by streets, alleys, or public ways), so far as said railroad runs through or between either of said parcels of land, or is contiguous thereto, a good and substantial fence.”

It is claimed by plaintiff in error, that these stipulations constitute a

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[No. 8.

covenant on the part of the grantees to build and perpetually maintain the fences named; that this covenant runs with the land, so that the defendants in error were unable to convey the lots by him purchased, with title perfect and unincumbered, as they had contracted to do.

If it be conceded that it was competent for the parties to that conveyance to impose upon the lands conveyed a servitude or burden for the benefit of lands retained by the company for the use of its road ; and if it be further conceded that such burden, if the parties so intended, would attach to every part of the servient estate and follow it into whosesoever hands the same or any part of it might come, then it is necessary to inquire, in the light of the surrounding circumstances, whether such was the intent of the parties in this case.

We think it quite certain that the parties to this deed contemplated, at the time it was made, that the land would be disposed of in subdivisions or building-lots. It was in fact sold in lots, at public auction, within sixteen days from the date of the deed. The plat of the subdivision was made and advertised before the auction. In the deed itself, fences are excepted where the lines of the railroad might be intersected or crossed by streets, alleys, or public ways. If such subdivision and sale of the premises, in lots, were contemplated by the parties, it is unreasonable to hold that any lot was intended to be burdened with the maintenance of fences against which it does not abut.

The lots purchased by the plaintiff in error are not contiguous to the lines of the railroad, but are situated at considerable distance therefrom. Several other lots intervene between them and the line of the road. And whatever may be the burden (if any) which rests upon lots abutting on the line of the railroad, as to maintaining fences thereon, we think the plaintiff in error has no reasonable grounds to apprehend any loss or inconvenience from the supposed incumbrance of maintaining fences, as provided for in this deed.

IV. It is also claimed by plaintiff in error, that he was entitled to avoid the sale on the ground of fraud, in this, that notwithstanding the property was offered at auction, on the condition that the sale should be without reserve, yet the vendors secretly employed bidders for their own benefit.

“ Sale positive” was one of the conditions of the auction, and we agree with counsel for the plaintiff in error, that these words are equivalent to 6 sale without reserve : and we also

agree with them, that when a sale at auction is announced to be without reserve, it is a fraud on the part of the vendor to employ a bidder to keep up the price on his behalf, and that such fraud is a bar to an action for specific performance. At such sale, it is the right of the highest bidder to have the property knocked down to him, under any and all circumstances, without reference to the amount to which the bidding may go. Upon examination of the testimony, however, we are not satisfied that such fraud was committed at this sale, by the vendors or their agents. It is true that one of the auctioneers procured a person (who did not intend to take the property at his own bid) to bid at the sale ; but we are not satisfied that such employment was not authorized by another person for whom the bid was intended, and who was ready and willing to take the property at the bids thus procured, if they had proven to be the highest bids. It is also true that one John

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[No. 8.

Ryan, who had some interest in the sale, jointly with the defendants in error, bid in good faith, and purchased some of the lots on his own account. This, however, was not bidding in violation of the conditions of sale, as it could, in no event, have prevented a sale to the highest bidder.

From this view of the case, it follows that the judgments below must be reversed for error, in admitting in evidence the deed from the railroad company to the plaintiffs below, without proof of its due execution ; in finding that the title of defendants was such as they had contracted to convey, and in decreeing specific performance without protecting the purchaser against the lien of the judgment in favor of Picksley.

Judgments reversed, and cause remanded for further proceedings. DAY, C. J., WELCH, STONE, and WHITE, JJ., concurred.

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COMMISSIONERS OF BOISE CO. v. GORMAN. A writ of error does not operate as a supersedeas until the filing of the bond. But

under the act of 1872 the bond may be filed and a supersedeas obtained any time within sixty days after judgment. Such supersedeas will have the effect of preventing further proceedings under an execution, but will not affect whatever may have been done prior to its being issued.

Mr. Chief Justice WAITE delivered the opinion of the court.

The plaintiffs in error ask that a writ may issue from this court commanding the restoration of Ben. T. Davis to the office of assessor and tax collector of Boise County, for the reason, as is alleged, that he has been ousted from that office by virtue of a writ issued upon the judginent in the court below, after the allowance of a writ of error to this court, which operated as a supersedeas.

In order that a writ of error may operate as a supersedeas, it is necessary that a copy of the writ should be lodged for the adverse party in the clerk's office where the record remains, and that the bond approved by the judge allowing the writ should also be filed there. O'Dowd v. Russeli, 14 Wali. 402. Execution cannot issue upon the judgment until the expiration of ten days, exclusive of Sundays, from the entry thereof. If the writ of error and bond are filed before the expiration of the ten days, no execution can issue so long as the case in error remains undisposed of. After the expiration of the ten days an execution may issue. Notwithstanding this, under the provisions of the act of 1872 (17 Stat. at Large, 198, sec. 11), upon the filing of the bond within sixty days from the time of the entry of the judgment a supersedeas may be obtained. Such a supersedeas, however, stays proceedings only from the filing of the bond. It prevents further proceeding under an execution which has been issued, but does not interfere with what has already been done.

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In this case the record shows that the judgment was actually entered on the 20th day of January. The entry as made was read in court on the morning of the 21st and the record signed by the judges, but it was ordered to be made on the 20th. The ten days, exclusive of Sundays, prescribed by the act of Congress for delay of execution, expired on Saturday, the 31st of January. On Monday, the 2d of February, a majority of the judges of the court directed the clerk to issue a writ of restitution to carry the judgment into effect. On the same day the chief justice of the court allowed a writ of error and signed the necessary citation. A copy of the writ of error was filed in the clerk's office and the writ and citation actually served upon the defendant in error before the clerk had completed the preparation of the writ of restitution. After he had completed its preparation he handed it to the attorney for the defendant in error, who had previously been served with the citation. No supersedeas bond was filed with the clerk on the 2d, and no notice was given that any had been approved. On the morning of the 3d of February the writ of restitution was served and Davis removed from his office. After this, and on the same day, a bond approved by the chief justice was left in the clerk's office by him. It nowhere appears from the record when this bond was approved. It bears date the 2d of February, but there is no certificate of the time when the approval was entered. It is certain, however, that it was not filed in the clerk's office until after service of the writ of restitution. The writ of error operated as a supersedeas only from such filing. That was too late to prevent the removal of Davis from his office in pursuance of the authority of the judgment; and we cannot now order him to be restored.

It is claimed, however, that as the record of the judgment was not signed by the judges of the court until the 21st, the ten days did not commence to run until that date, and we are referred to the case of Silsby v. Foote, 20 How. 290, as establishing such a rule. In that case the decision was actually rendered on the 28th of August, but the decree was special in its terms, and was not settled or signed by the judge until the 11th December. Before any entry could be made it was necessary that the judge should pass upon its form. It was, therefore, quite right to delay the appeal until the exact character of the decree could be known.

Here, however, the form of the judgment was settled upon the announcement of the decision, and it was entered accordingly.

But the writ of restitution was not served until after the expiration of ten days from the 21st, and it does not appear that it was actually delivered to the sheriff for service before that time. There is nothing to prevent the preparation by the clerk of an execution before the expiration of the ten days. It cannot be issued before, and it is not issued until it is placed beyond the control of the clerk himself. So long as it remains with him, or under his control, it is like any other paper in his office.

We think the motion must be denied, and in accordance with the request of the parties made at the argument, the case is dismissed.

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(No. 8.




[JUNE, 1874.]




A statute which permits the head of a family to waive an exemption of homestead

is not an infraction of a constitutional provision by which such exemption is

created. Where a party waived his right of homestead exemption in a negotiable promissory note, and was subsequently adjudged a bankrupt, it was held that the homestead was not exempt as against the holder of the note.

John Dunlop, Esq., for the creditors, appellants. A. R. Courtney, Esq., contra. The facts appear in the opinion. The opinion of the court was delivered by WAITE, C. J. On the 31st January, 1873, the bankrupt executed to Glazebrook & Thomas, at Richmond, Virginia, his note for the payment to them, or their order, of the sum of $234.50 at sixty days after date. It contained the following clause : “I hereby waive the benefit of the homestead exemption as to this debt."

Glazebrook & Thomas indorsed this note to Gibson & Crilly. Solomon was adjudged a bankrupt, on his own petition, upon the 1st of May, 1873. Gibson & Crilly made proof of their claim against the estate on the 24th May. An assignee was appointed, who on the 16th of February, 1874, set off to the bankrupt his homestead exemption under the laws of Virginia, without regard to the waiver expressed in the note of Gibson & Crilly. They thereupon filed their petition in the district court, the object of which was to set aside this action of the assignee, so far as it operated to prevent their subjecting the property set off to the payment of their debt in case the remainder of the bankrupt's estate should prove insufficient for that purpose. Their claim for this relief is predicated entirely upon the waiver of the exemption which is contained in their note. We are therefore called upon to consider the effect of this waiver.

By section 1, article XI. of the Constitution of Virginia it is provided that every householder or head of a family shall be entitled to hold exempt from levy, &c., property to the value of not exceeding $2,000, to be selected by him; by section 3, it is further provided that nothing in the article should be construed to interfere with the sale of property exempted, or any portion thereof, by virtue of any mortgage, deed of trust, pledge, or other security thereon; and by section 5, that the General Assembly should, at its first session under the Constitution, prescribe in what manner on what conditions the said householder or head of a family should thereafter set apart and hold for himself and family a homestead out of

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