In an action by a chattel mortgagee of certain cattle against
the purchaser of the same at a marshal's sale upon execution, the
question was whether a chattel mortgage upon a portion of such
cattle, which did not identify the particular animals covered by
it, was good as against the purchaser of the entire lot at
marshal's sale.
Held: that this presented no federal
question.
With respect to writs of error from this Court to judgments of
state courts in actions between purchasers under judicial
proceedings in the federal courts and parties making adverse claims
to the property sold, the true rule is this: that the writ will lie
if the validity or construction of the judgment of the federal
court or the regularity of the proceedings under the execution are
assailed, but if it be admitted that the judgment was valid and
these proceedings were regular, that the purchaser took the
Page 179 U. S. 306
title of the defendant in the execution, and the issue relates
to the title to
the property as between the defendant in the execution, or the
purchaser under it, and the party making the adverse claim, no
federal question is presented.
This was an action originally instituted in the District Court
of Hunt County, Texas, by Ignatz Popper and Edward Popper (doing
business under name of I. Popper & Brother) to recover upon a
certain promissory note executed May 26, 1891, by John H. Cooke and
Mary E. Cooke, his wife, to Thomas H. King, for $1,940, and for the
foreclosure of a chattel mortgage upon certain personal property
hereinafter described, and (in their amended petition) also for a
personal judgment against John M. Avery and his sureties upon
certain replevin bonds.
An interest in the note to the amount of $775 was transferred by
King, the payee, on April 10, 1892, to the firm of I. Popper &
Brother, and the residue of such note and interest to Robert R.
Neyland, under the name and style of R. Co. Neyland &
Company.
To secure the payment of such note, John H. Cooke and wife, on
May 26, 1891, executed and delivered to King a chattel mortgage
upon fifty cows, with their calves of that spring, which cows were
branded "Cook" on the left side and "O K" on the left hip, the
calves not being branded; also one bay-mare colt, one gray-horse
colt and one black-mule colt. This instrument was legally filed and
registered as a chattel mortgage on May 30, 1891.
On June 14, 1893, the marshal of the United States levied upon,
among others, the above-mentioned property by virtue of an
execution issued out of the Circuit Court of the United States at
Dallas on June 8, 1893, upon a judgment rendered in favor of W. W.
Avery against John H. Cooke and certain sureties upon a supersedeas
bond, but not against his wife, Mary E. Cook. This judgment was
rendered in pursuance of the mandate of this Court in
Cooke v.
Avery, 147 U. S. 375. At
the marshal's sale, which took place on June 28, 1893, the property
was bid in by John M. Avery as attorney for and in the name of W.
W. Avery, and all of such property was then and there delivered to
John M. Avery.
Page 179 U. S. 307
On the following day, June 29, 1893, I. Popper & Brother
brought this action in the District Court of Hunt County against
John H. and Mary E. Cooke, W. W. Avery, and John M. Avery, to
recover of the Cookes the amount of plaintiffs' interest in the
note ($775) and to foreclose against all the defendants their
mortgage upon the property described. On the same day, R. R.
Neyland & Company brought a separate suit against the same
parties to recover the balance due on such note after deducting the
amount due Popper & Brother, and likewise to foreclose the
mortgage. These suits were consolidated January 16, 1894. The
property was seized while in the possession of John M. Avery by
virtue of writs of sequestration issued in these actions. After
such seizure, John M. Avery replevied and resumed possession of the
property, drove it out of Hunt County, and within a short time
thereafter sold and disposed of it.
At the time the mortgage was executed to secure the note, there
were many more animals of the same description mingled with those
upon which the mortgage was given, but the state court found the
evidence sufficient to show that, just prior to the execution of
the mortgage, the animals embraced in it were pointed out to Mr.
Neyland, who represented King in taking the mortgage security and
drafting the mortgage. But the animals covered by the mortgage were
not separated from the others of the same description with which
they were mingled, nor was there any such separation when the
execution in favor of Neyland was levied upon the property in
controversy. The court further found that the fifty head of cows
described in the mortgage, as well as all others of like
description mingled with them, were the separate property of Mary
E. Cooke at the time the mortgage was executed, and continued to be
her separate property until disposed of by Avery; that the fifty
calves were born during the marriage of Cooke and wife, after the
cows became the separate property of Mrs. Cooke, and were
therefore, at the time the mortgage was given and the execution in
favor of Avery levied, the community property of John H. and Mary
E. Cooke. Also, that the horses and mule involved in this suit were
the offspring of the separate property of Mary
Page 179 U. S. 308
E. Cooke during her marriage with John H. Cooke, and were
likewise the community property of Cooke and his wife at the time
the mortgage was given and the execution levied.
The case appears to have been first tried in 1894, and judgment
rendered against the plaintiffs in error, but on appeal by them,
the mortgage was held to be invalid, the judgment reversed, and the
case remanded by the court of civil appeals for a new trial.
Avery v. Popper, 34 S.W. 325. The case was again tried in
October, 1897, and resulted in a judgment in favor of Popper &
Brother against John H. Cooke in the sum of $1,637 and in favor of
Neyland, whose suit was consolidated with the other, in the sum of
$1,974. The mortgage was foreclosed on the fifty cows, one mare,
one horse and one mule, and a further judgment rendered against
John M. Avery and the sureties upon his replevin bond in the sum of
$850, the value of the property disposed of by him. The court
further found that, as to the fifty calves, the mortgage was
invalid, and a foreclosure of the mortgage to that extent was
denied.
The case was again carried to the court of civil appeals by John
M. Avery and his sureties, which affirmed the judgment against
Cooke and wife, but increased the judgment against John M. Avery
and his sureties in the sum of $534, the value of seventeen
two-year old steers and thirty-two two-year old heifers. 45 S.W.
951. The court found the district court to have been in error in
holding that the mortgage executed by the husband and wife was not
a lien upon all the property embraced in it, whether separate or
community. On appeal to the supreme court, the judgments of the
court of civil appeals and of the district court were reversed, and
a judgment ordered in favor of Popper & Brother and Neyland
against the plaintiff in error, John M. Avery, and his sureties in
the sum of $850, interest and costs. 92 Tex. 337. The court found
that
"no right attached under the mortgage to specific animals, nor
did it give a lien upon an undivided interest in the herd. The
power was given to sell certain cows and their calves, which could
only be done by selecting them from the herd, and it being
necessary to the execution of the express authority to sell, the
law will imply the authority to take the
Page 179 U. S. 309
fifty cows and calves from the larger number.
Oxsheer. v.
Watt, 91 Tex. 124. The chattel mortgage was valid between the
parties to it."
"Upon default in payment, King or the holders of the note had
the right to select from John H. and M. E. Cooke's stock of cattle
and sell fifty cows and calves corresponding to the description in
the mortgage. If the right had been exercised while the calves of
the spring of 1891 were following their mothers, the selection of
the cow would have identified the calf. But, having failed to
exercise the right until, in the course of nature, the dam and the
young would separate, it has become impossible to identify the
calves, and all claim upon them has failed before Avery converted
the stock."
Whereupon Avery and his sureties sued out a writ of error from
this Court.
MR. JUSTICE BROWN delivered the opinion of the Court.
The plaintiffs in error invoke the jurisdiction of this Court
upon the ground stated in the third clause of Rev.Stat. section
709, of a
"title, right, privilege, or immunity claimed under . . . an
authority exercised under the United States, and the decision is
against the title, right, privilege, or immunity specially set up
or claimed."
The special right claimed was a right as purchaser under the
marshal's sale upon execution to a priority of payment from the
goods sold as against the chattel mortgage. The claim set up in the
second assignment of error was that the mortgage was invalid as
against such execution for the reason that there were many more
animals of the same description mingled with those upon which the
mortgage was given, and that the animals covered by the mortgage
were not separated from the others of the same description with
which they were mingled, nor was there such separation up to the
time said execution from the United States court was levied
Page 179 U. S. 310
upon the property in controversy; that no lien attached to any
particular animals in the herd, nor did the mortgage give a lien
upon an undivided interest in the herd, and as a matter of law was
invalid as against the execution, and that, in giving priority to
the mortgage, the Supreme Court of Texas failed to give full force
and effect to the judgment of the circuit court of the United
States.
It should be borne in mind that this action was not begun until
the day after the termination of the action in the federal court by
a sale of the property to Avery, the payment of the money, and
apparently the return of the execution satisfied, and that the
question litigated was not the legality of this particular
judgment, which was admitted to be valid, but the general question
whether, under the laws of Texas, an execution is valid as against
a mortgage upon animals which are not identified, and not separated
from others of the same description with which they are mingled.
Briefly stated, the question is whether the mere fact that the
plaintiff in error was a purchaser at a marshal's sale of the
property entitles him to bring into this Court questions under the
state law with respect to the validity and priority of a chattel
mortgage covering the same property or a part thereof.
There are many authorities upon the general question of the
rights of purchasers at marshals' sales as against lienholders
under laws of the several states from which the true rule may be
deduced. The question is analogous to the one decided at the last
term of this Court in
Blackburn v. Portland Gold Mining
Co., 175 U. S. 571, and
De Lamar's Nevada Gold Mining Co. v. Nesbitt, 177 U.
S. 523, to the effect that the mere fact that parties
claim adversely to each other under the mining laws or under
patents of the United States do not entitle them to a writ of error
from this Court unless there be a question made as to the meaning
and construction of a federal statute, or of an authority exercised
under the United States.
Of the cases bearing more directly upon the question here
involved of the relations of a purchaser under a marshal's sale to
others claiming the same property, the earliest is that of
Collier v.
Stanbrough, 6 How. 14. Collier was the
purchaser
Page 179 U. S. 311
under a marshal's sale upon execution against one David
Stanbrough of certain personal property which was claimed by Josiah
Stanbrough, the defendant, who insisted that the property was not
legally seized or levied upon, and that it was not legally
appraised or advertised as required by law. Jurisdiction under the
writ of error to the Supreme Court of Louisiana was sustained upon
the obvious ground that the sale by the marshal was directly
attacked, and the invalidity of plaintiff's title set up as a
defense.
In
Erwin v.
Lowry, 7 How. 172. Erwin was the purchaser at a
marshal's sale of certain land and negroes, and was sued by Lowry,
who claimed as curator of the estate to which the property
belonged. The question was the same as that in
Collier v.
Stanbrough -- namely, whether the marshal's deed to Erwin was
void for the reason that it was not supported by a lawful judgment,
or for want of compliance with any legal requirement in conduction
the seizure and sale. The jurisdiction was also sustained in this
case.
In
Clements v.
Berry, 11 How. 398, the suit was by Daniel Berry
against the marshal directly, in replevin, to recover property
levied upon as the property of Charles F. Berry, and the sale was
stopped by a writ of replevin issued from the state court. As the
marshal was a party defendant to the suit, and his right to sell
the property was directly attacked, the jurisdiction was sustained.
For the same reason that the marshal was made a defendant to the
suit in the state court, and justified under process from the
federal court, jurisdiction was sustained in
Freeman v.
Howe, 24 How. 450;
Buck v.
Colbath, 3 Wall. 334;
Etheridge v. Sperry,
139 U. S. 266, and
Bock v. Perkins, 139 U. S. 628.
In
Day v. Gallup,
2 Wall. 97, the suit was by Gallup against Derby and Day, execution
creditors, Allis, their attorney, and Gear, marshal of the United
States, who justified under a judgment of the federal court against
one Griggs. The suit was discontinued as to the marshal before
trial. The case turned on the ownership of the goods seized, and
judgment went against Derby and Day, which was affirmed by the
Supreme Court of Minnesota. The suit was not begun until after the
execution
Page 179 U. S. 312
from the federal court had been returned and the action
completely terminated. Upon writ of error from this Court, it was
held that, at the time Gallup brought his action, there was no case
pending in the federal court respecting the goods which had been
attached under process from that court, that it did not appear that
the authority of Gear as marshal to take the goods was drawn in
question, and that, from the return of the execution satisfied, the
federal court had no control over the parties. The case between the
plaintiffs in error against Griggs, the original defendant in the
federal court, had been decided, the money made on the execution
and the debt paid. In commenting on that case in
Buck v.
Colbath (p.
70 U. S. 342),
it was said:
"It is only while the property is in possession of the court,
either actually or constructively, that the court is bound or
professes to protect that possession from the process of other
courts. Whenever the litigation is ended, or the possession of the
officer or court is discharged, other courts are at liberty to deal
with it according to the rights of the parties before them, whether
those rights require them to take possession of the property or
not."
We do not undertake to say that the mere fact that the action in
the federal court is no longer pending would oust the jurisdiction
of this Court to reexamine the action of the state court if the
validity of the judgment of the federal court or the proceedings by
the marshal under that judgment were directly attacked, but in
Day v. Gallup, it appeared that not only had the
proceedings in the federal court terminated, but that the real
question was the ownership of the goods as between the attaching
creditors and Gallup. Gallup claimed under a sale of the goods
which the attaching creditors insisted was a fraud.
In
Dupasseur v.
Rocherau, 21 Wall. 130, Rocherau, a judgment
creditor of one Sauve, brought an action in the state court against
Dupasseur, alleging that he had taken possession of a plantation
belonging to Sauve, upon which he, Rocherau, held a mortgage, and
charging that the plantation was bound for the debt, and that
Dupasseur was bound either to pay the debt or give up the
plantation. Dupasseur defended upon the ground that he had bought
the property at a marshal's sale, upon an execution in his own
favor against Sauve, "free of all mortgages
Page 179 U. S. 313
and encumbrances, and especially from the alleged mortgage of
the plaintiff," Rocherau. Upon writ of error from this Court, it
was held that, as the question at issue was the effect to be given
to the judgment of the federal court and to the proceedings under
the execution in that court, and to the sale by the marshal free of
all mortgages and encumbrances, jurisdiction should be sustained.
Here, the validity of the sale by the marshal was directly
attacked. Notwithstanding the fact that Dupasseur purchased the
property under the execution sale on May 5, 1876, and Rochereau did
not begin his action until June 7, 1866, the jurisdiction was
sustained because Dupasseur's title under that purchase was
attacked by the other party.
In
McKenna v. Simpson, 129 U.
S. 506, an assignee in bankruptcy resorted to a state
court to set aside a conveyance by the bankrupt as in fraud of
creditors; but as no question was raised there as to the power of
the assignee under the acts of Congress or as to the rights vested
in him as assignee, but only as to what should be deemed a
fraudulent conveyance, and, as to the application of the evidence
in reaching that decision, we held that the case presented no
federal question, and the writ of error was dismissed.
Per contra, in
O'Brien v. Weld, 92 U. S.
81, the question arose whether, under the bankrupt law,
the district court had authority to make a certain order, and as
the decision of the state court was against such authority,
jurisdiction was sustained. Such was also the case in
Factors'
& Traders' Insurance Co. v. Murphy, 111 U.
S. 738, where the effect to be given to a sale of
property under an order of a district court was in question, the
authority of the court to direct a sale free from encumbrances
being denied.
In
Stanley v. Schwalby, 162 U.
S. 255, the action in the state court was directly
against officers of the United States, and ultimately against the
government itself. Jurisdiction was sustained upon that ground.
Finally, in
Pittsburgh, Cincinnati &c. Railroad v. Long
Island Loan & Trust Co., 172 U. S. 493, the
question arose whether
Page 179 U. S. 314
due effect was accorded to certain foreclosure proceedings in
circuit courts of the United States under which plaintiff in error
claimed title to the land and property in question. Under these
proceedings, a sale of railroad property had been made, subject to
certain outstanding bonds prior in lien to the mortgage and to all
other, if any, paramount liens thereon, and that the decree should
not in any manner prejudice or preclude the holders of such
paramount liens. Plaintiff in error contended that the state court
did not give due effect to these decrees of the circuit courts of
the United States in that it did not recognize as paramount the
rights acquired under those decrees by the purchasers of the
property in question, but postponed or subordinated these rights to
a lien upon such property which, it was alleged, was created or
attempted to be created while those suits were pending, and while
the property was in the actual custody of those courts, by
receivers, for the purposes of being administered. As the question
concerned the effect to be given to a sale under process from the
federal courts, and to the construction of the decree of those
courts, jurisdiction was sustained.
With respect to writs of error from this Court to judgments of
state courts in actions between purchasers under judicial
proceedings in the federal courts and parties making adverse claims
to the property sold, the true rule to be deduced from these
authorities is this: that the writ will lie if the validity or
construction of the judgment of the federal court, or the
regularity of the proceedings under the execution, are assailed,
but if it be admitted that the judgment was valid and these
proceedings were regular, that the purchaser took the title of the
defendant in the execution, and the issue relates to the title to
the property as between the defendant in the execution or the
purchaser under it and the party making the adverse claim, no
federal question is presented -- in other words, it must appear
that the decision was made against a right claimed under federal
authority, in the language of Rev.Stat. § 709.
Applying this test to the case under consideration, it is
evident from the record that no question was made as to the
validity
Page 179 U. S. 315
of the judgment, or the regularity of the proceedings in the
federal court, and that the case turned upon the question whether,
under the laws of Texas, a chattel mortgage upon property sold
under execution is good which does not identify the particular
property covered by it, but leaves such property to be subsequently
identified by selection of the mortgagor. In regard to this, the
Supreme Court of that state held (92 Tex. 337) that the chattel
mortgage upon the fifty cows with their calves, out of a designated
herd of one hundred, with power to the mortgagee to sell on
default, gave him the right to select such cows from the larger
number, and that such mortgage, implying, as it did, a power of
selection on the part of the mortgagee, was, when duly registered,
notice of his rights to the purchaser of the mortgagor's interest
-- following in these particulars
Oxsheer v. Watt, 91 Tex.
124. That this was no new doctrine in the State of Texas is also
evident from the case of
Elliott v. Long, 77 Tex. 467,
decided in 1890, three years before the property was sold upon
execution in this case.
See also Wofford v. McKinna, 23
Tex. 46. We are referred to two cases which apparently conflict
with these,
Cleveland v. Williams, 29 Tex. 212, and
Moss v. Sanger, 12 S.W. 616, but if any such conflict
existed, it was for the supreme court to settle it, as it seems to
have done in
Elliott v. Long, by overruling the former
cases. Whether the right of selection recognized as between
mortgagor and mortgagee is also applicable as between a purchaser
upon execution and the mortgagee is not a federal question if no
discrimination be made against executions from federal courts.
This was a question either of local law or of general law. If of
local law, of course, the decision of the Supreme Court of Texas is
binding upon us. If of general law, as it involves no federal
element, it is equally binding in this proceedings, since only
federal rights are capable of being raised upon writs of error to
state courts. Conceding that if the question had arisen on appeal
from a circuit court of the United States, we might have come to a
different conclusion, it by no means follows that we can do so upon
writ of error to a state court, whose opinion upon a question of
general law is not reviewable here.
Page 179 U. S. 316
Other questions are raised in the assignments of error, but they
bear even more remotely upon a federal right. The decision already
made covers them.
The writ of error must therefore be
Dismissed.
