HENRY M. BAYARD, PLAINTIFF IN ERROR,
v.
ISRAEL LOMBARD AND CHARLES O. WHITMORE.
Supreme Court of United States.
*547 The case was argued by Mr. Brewster, for the plaintiff in error, and Mr. John M. Read, for the defendants in error.
*548 Mr. Justice GRIER delivered the opinion of the court.
This case has been brought here, both by writ of error and appeal, for the purpose of reviewing the decision of the Circuit Court for the Eastern District of Pennsylvania, with respect to the lien of judgments obtained in that court. But as we are of opinion that the ruling of the Circuit Court on this subject is not properly before us on the record, we cannot consent to *549 volunteer an expression of our judgment upon it, however much it may be desired by the parties.
A brief statement of the history of the case, and of the peculiar practice of the courts of Pennsylvania on this subject, will make it apparent that the decision of the court below involving this question is not properly before us, either by the appeal or the writ of error.
The record shows, that Lombard and Whitmore obtained a judgment against Bayard, the nominal plaintiff in error in this case, on a bond for $62,420, conditioned for the payment of $31,210. An execution on this judgment was issued, returnable to April term, 1846, on which the marshal returned a levy on certain lands of the defendant situate in Lancaster County, and within the Eastern District of Pennsylvania. An inquisition was held, and the property condemned, according to the practice and laws of that State. A venditioni exponas was afterwards issued, on which the marshal returned, that he had sold the property levied on for the sum of $61,200. These proceedings are admitted to be all regular, and according to law.
In Pennsylvania, a judicial sale discharges the land sold from all liens, except (now) prior mortgages. When, therefore, land is once sold on execution, and converted into money, all persons who claim to have liens upon it by judgment or otherwise (with a few exceptions) are compelled to follow the money or lose their security. Hence it often happens that, when money is made by sale of land on a junior judgment, the plaintiff does not obtain satisfaction, and is sometimes involved in a fresh litigation with creditors claiming to have prior liens. In these contests the defendant is usually an indifferent spectator. For many years there was no settled practice as to the mode in which these new disputes should be litigated.
In some districts the sheriff paid the money in his hands to such parties as he thought best entitled to it, and took an indemnity against other claimants, who were thus compelled to seek their remedy by suit on his bond. In other districts, the sheriff avoided responsibility by paying the money into court, and leaving the claimants to settle their controversies in such manner as the court might order, or the parties elect. In such cases, the court usually disposed of the money on the motion of the parties interested, by ordering the liens to be paid in the order of their priority, as certified by the clerk. But as it not unfrequently happened that the junior judgment creditors contested the validity of the lien of the older judgment, because it was not regularly revived, or for other reasons; or challenged *550 it for fraud and collusion; or insisted that it had been paid in whole or in part, it became necessary that the court should in some way try and decide these questions thus raised by new parties before any proper disposition could be made of the money. In such cases, where the counsel expected questions to arise which they might desire to have reviewed by writ of error, they took care, by the form of an amicable action, or by case stated in the nature of a special verdict, to shape the proceedings in such from and with such parties that a writ of error would lie in favor of those who felt aggrieved by the decision of the court.
But it was conceded by all, that, if the money was distributed by the court on motion, a writ of error could not reach the proceeding, and the decision of the court was conclusive on all parties. (See Gratz v. Lancaster Bank, 17 Serg. & Rawle, 279.)
Such was the practice in the courts of Pennsylvania, till the year 1827, when an act of Assembly was passed, requiring the court to direct an issue in such cases, at the request of any claimant, and to give notice to all persons interested; and allowing a writ of error where the issue was tried by a jury, and an appeal when the question was submitted to the court.
In the case before us, the marshal paid the money into court, and motions were made by the Bank of Middletown and others for leave to take it out of court, which were resisted by Lombard and Whitmore, the plaintiffs in the judgment. The court appointed an auditor to make report as to the parties entitled to the money, with directions to give notice to all parties concerned. The auditor made a report, giving a preference to the judgments according to their priority in time. The Bank of Middletown, and others who had junior judgments in the State courts of Lancaster County, excepted to the report, alleging that judgments in the Circuit Court of the United States were not liens on the lands of defendant in Lancaiter County, or out of the County of Philadelphia.
This exception was overruled by the court, and the report of the auditor confirmed. From this decision of the court the Bank of Middletown appealed, and on suggestion of a doubt by the court whether an appeal would lie, a writ of error was also sued out by counsel professing to act "as attorneys for plaintiff in error, and for the Bank of Middletown and the Farmers' Bank of Delaware."
But no errors have been assigned in this court, to the judgment or execution, on behalf of the plaintiff in error. As against him, all the proceedings are admitted to be regular and *551 legal. It is a matter of indifference to him whether the money raised by the sale of his lands on the execution is awarded to defendants in error or to the banks. The assignment of errors in this case is on behalf of persons who are not parties to the record, and of a matter arising after execution executed, on a motion by strangers to the judgment and proceedings, and an order of the court disposing of certain funds in their possession accidentally connected with this record.
It is a well settled maxim of the law, that "no person can bring a writ of error to reverse a judgment who is not a party or privy to the record." "A writ of error lies when a man is grieved by an error in the foundation, proceeding, judgment, or execution" in a suit. Co. Lit. 288, b; see also Boyle v. Zacharie, 6 Peters, 655, and cases cited. The judgment or order of the court on a summary motion, or a collateral question arising like the present on the suggestion of a third party, is not reëxaminable on a writ of error issued on the judgment with which it may happen to be connected.
The Circuit Court of the United States has adopted the forms of process in execution of the State courts, and the laws and practice of Pennsylvania, for taking lands on execution and disposing of their proceeds. But it is not a consequence of their adoption of them that the modes of reviewing the decisions of the Circuit Court by this court should be conformed to the laws or practice of the State. For it cannot be pretended that acts of Assembly of Pennsylvania can give jurisdiction to this court not to be found in the Constitution and acts of Congress of the United States.
The absence of courts of equity in Pennsylvania has compelled them to adopt modes of practice in their courts of common law anomalous in their character, and unnecessary in a court possessing the full powers of a court of chancery. An appeal to this court is given in chancery cases alone. And the writ of error given by the Judiciary Act is governed by the provisions of that act and the principles of the common law, as regards the judgments and questions which may be reviewed under it. The persons complaining in this case should have filed their bill in equity, or stated an issue in due legal form, with proper parties, setting forth the merits of their respective claims, if they intended to prosecute an appeal or writ of error to this court. This could have been done with less expense and trouble, and in less time, than in the mode pursued. But having submitted the question on which their claim depended to the court below, on a motion collateral to the record, the decision of that court is final and conclusive, and cannot be reviewed by this court.
*552 Therefore, as no error appears on the record, the judgment of the Circuit Court must be affirmed.
Order.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Pennsylvania, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.