NATHANIEL S. BENTON, DISTRICT ATTORNEY OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF NEW YORK
v.
MELANCTHON T. WOOLSEY, THE BANK OF UTICA ET AL.
Supreme Court of United States.
*28 The questions arising on this case were argued at large, in printed arguments, by Mr. Butler, the attorney general, for the United States; and by Mr. Beardsley, for the defendants.
*29 Mr. Chief Justice TANEY delivered the opinion of the Court.
In this case, a bill of information and complaint was filed by the district attorney of the United States, in behalf of the United States, in the district court for the northern district of New York, against Melancthon C. Woolsey, the Bank of Utica and others, for the purpose of foreclosing a mortgage upon certain real property, executed by the said Woolsey to the United States, on the 20th of July, 1825, to secure the payment of twenty-nine thousand four hundred and fifty-nine dollars and twenty-nine cents, in one year from the date, with interest. The property mortgaged, was situated partly in the county of Jefferson, and partly in the county of St. Lawrence, in the state of New York; and the mortgage was recorded in the county *30 of Jefferson, November 26th, 1830; and in the county of St. Lawrence, June 10th, 1831.
It appears, from the answer and evidence, that the Bank of Utica obtained a judgment in the supreme court of the state of New York, against the said Woolsey, on the 7th October, 1817, for sixteen thousand dollars; and the judgment was docketed November 24th, 1817. No further proceedings were had upon it until May term, 1828, when it was revived by scire facias, and the judgment on the scire facias docketed July 9th, 1828.
Process of fieri facias issued on this judgment, endorsed to levy six thousand six hundred and sixty-seven dollars and fifty cents; and the lands mortgaged to the United States, in Jefferson county, were sold by the sheriff, on the 24th of November, 1828; and (with the exception of a small parcel,) purchased by the bank. They were conveyed by the sheriff to the bank, May 3d, 1830. The lands in St. Lawrence county, mortgaged to the United States, were sold by the sheriff, January 30th, 1829; and conveyed by the sheriff to the bank, May 15th, 1830.
The judgment obtained by the bank, in 1817, after the expiration of ten years from the time it was docketed, ceased, by the laws of New York, to be a lien upon real estate, against bona fide purchasers, or subsequent incumbrances, by mortgage, judgment, or otherwise; and, consequently, after the 24th of November, 1827, it no longer bound the property of Woolsey.
The bank denies, in its answer, that it had notice of the mortgage in question, at the time it purchased and obtained the conveyances; and there is no evidence in the record to charge them with notice. It purchased and obtained the deeds, as above stated, before the mortgage was recorded. No money was paid by the bank, on the purchase, except for expenses of sale and costs. The property was bought to secure the debt due from Woolsey; and the bank claims, by reason of that debt, to be a bona fide purchaser, for a valuable consideration; and, having had no notice of the mortgage to the United States, it insists that it is entitled to hold the lands discharged of the mortgage.
Some doubts were at first entertained by the Court, whether this proceeding could be sustained in the form adopted by the district attorney. It is a bill of information and complaint, in the name of the district attorney, in behalf of the United States. But, upon carefully examining the bill, it appears to be, in substance, a proceeding *31 by the United States; although, in form, it is in the name of the officer. And we find that this form of proceeding, in such cases, has been for a long time used, without objection, in the courts of the United States, held in the state of New York; and was doubtless borrowed from the form used in analogous cases, in the courts of the state, where the state itself was the plaintiff in the suit. No objection has been made to it either in the court below, or in this Court, on the part of the defendants; and we think the United States may be considered as the real party; although, in form, it is the information and complaint of the district attorney. But, although we have come to the conclusion that the proceeding is valid, and ought to be sustained by the Court, it is certainly desirable that the practice should be uniform in the courts of the United States; and that, in all suits where the United States are the real plaintiffs, the proceeding should be in their name, unless it is otherwise ordered by act of congress.
Considering the United States as the real party in the case, the question to be decided by this Court is, whether, under the act of the state of New York, concerning judgments and executions, passed April 2d, 1813, the Bank of Utica was a bona fide purchaser at the sheriff's sale herein before mentioned; the purchase being made not upon an advance of the purchase money, but to pay a precedent debt due to the bank by judgment.
This question has been fully argued and carefully considered by this Court. But no opinion can be pronounced on the point, because the judges are equally divided upon it. Upon this division, the judgment of the court below is necessarily affirmed.
This cause came on to be heard, on the transcript of the record from the district court of the United States, for the northern district of New York; and was argued by counsel. On consideration whereof, it is adjudged and ordered by this Court, that the judgment of the said district court in this cause be, and the same is hereby affirmed.