Savage's Assignee v. Best. 3 H. Savage was delivered to the sheriff on the 9th April, 1842, before the act of bankruptcy, and was levied on the land on the day of before the petition; but after the act of bankruptcy the defendant purchased at the sheriff's sale, had his deed, and this was his title. "The question was, has the plaintiff, by the decree of bankruptcy, and its relation back to the act of bankruptcy, the elder and better title; or has the defendant, by the prior delivery of the execution into the hands of the sheriff, and his levy of it, before the petition was filed, the prior and superior title?" The statute of Kentucky, upon this subject, provides "that no writ of fieri facias, or other writ of execution, shall bind the estate of the defendant or defendants but from the time such writ shall be delivered to the sheriff, or other proper officer, to be executed." According to the laws of that State, a judgment is not a lien upon land, and the real as well as personal estate is not bound until the process of execution against the property of the defendant is delivered to the officer. The question to be determined is, whether the delivery of the fieri facias to the sheriff to be executed, created a lien on the property of the defendant, for the amount for which the [* 119 ] execution was * issued? If it did, the title of the defendant is the superior and better title, and protected by the last proviso in the 2d section of the act to establish a uniform system of bankruptcy throughout the United States. In construing the statute above mentioned, the decisions of the courts of Kentucky have not been entirely uniform. In the case of Tabb v. Harris, 4 Bibb, 29, decided in 1816, it was held that the delivery to the sheriff created no lien on the property of the defendant. In a subsequent case, however, in the same volume, Daniel v. Cochrane's Administrator, 4 Bibb, 532, decided in 1817, the court, in delivering their opinion, speak of the lien of a fieri facias, from the time it was delivered to the sheriff to be executed, as if it were a known and settled principle of law in that State. But this was not the main point in that case, which turned upon the question, whether the execution continued to bind the property of the debtor until the judgment was satisfied. The court held that it did not, and that the lien ceased after the return day of the execution, if it was not levied before. The question as to the lien acquired by the delivery to the officer, again arose in the case of Kilby v. Haggin, 3 J. J. Marshall, 208; and in this case, which was decided in 1830, the doctrine in the case of Tabb v. Harris was fully sustained; and it was directly and 15 Stats. at Large, 442. Savage's Assignee v. Best. 3 H. distinctly decided that the delivery to the sheriff created no lien against any other creditor, and that an execution afterwards placed in the hands of the sheriff, if first levied upon the property, was entitled to a preference. But in the case of Million v. Ryley, 1 Dana, 360, decided in 1833, the court held that the plaintiff obtained a lien by the delivery to the sheriff, and that the title acquired by the purchaser, when the execution was regularly levied and the property sold, related back to the delivery to the officer, and they speak of this lien as secured to the creditor by the Kentucky statute. In 1837, this subject again came before the court, in the case of Addison and others v. Crow and others, 5 Dana, 274, and in this case the question appears to have been very fully considered, and the case of Million v. Ryley was referred to and commented on, and the principle decided in it in relation to the lien of an execution reaffirmed. In this case the court say: "The levy of a fieri facias upon the land of the debtor undoubtedly renders the lien more specific, and being a necessary step in the execution of a writ, completes the authority of the officer to sell, and has the further effect of giving continuance both to the authority and the lien, which would otherwise expire with the return of the writ. And we do not perceive any necessity or reasonable ground for ascribing to it any other efficacy than this;" and in page 277 of the same case, the court again say: "No reason appears for attributing to a levy any efficacy, except as one step towards the consummation of the lien arising from the delivery of the execution to the officer." This is the latest decision in the courts of the State to [* 120 ] which we have been referred, or of which we are aware, and, as we have already said, it appears to have been well considered. And whatever doubts might before have been entertained, we must, under the authority of this case, regard it as the settled law of the State that the creditor obtains a lien upon the property of his debtor by the delivery of the fieri facias to the sheriff; that it acquires no additional validity or force by being actually levied, but that the lien is as absolute before the levy as it is afterwards, and continues while the process remains in the hands of the sheriff to be executed. In this view of the subject, it is unnecessary to examine or to remark upon the cases which have been decided in other States, or in England, because the question depends altogether upon the law of Kentucky. And, as by the laws of that State, a fieri facias, when delivered to the sheriff, is a lien upon the property of the debtor while it continues in the hands of the officer to be executed, the creditor is not deprived of this lien by an act of bankruptcy on the part of the debtor committed before the levy is made, but after the execution is United States v. Gear. 3 H. in the hands of the sheriff. In the case before us, therefore, the court are of opinion that the defendant, by the prior delivery of the execution, and the subsequent levy and sale, has the prior and superior title, and we shall certify accordingly to the circuit court. 3 H. 426; 7 H. 612. 120 232 THE UNITED STATES, Plaintiff, v. HEZEKIAH H. GEAR, Defendant. THE UNITED STATES, Complainant, v. HEZEKIAH H. GEAR, Defendant. 3 H. 120. In the districts made by the act of June 26, 1834, (4 Stats. at Large, 686,) lead-mine lands were not subjected to sale, nor liable to be located on by preëmption rights. Digging lead ore from the public lands is such waste as entitles the United States to an injunction. CERTIFICATE of division of opinion by the judges of the circuit court of the United States for the district of Illinois, in these two cases, one of which was an action at law, and the other a suit in equity, to try the title to a lead mine. The questions certified in the equity cause were as follows: 1. Whether the act of congress, entitled " An act to create additional land districts in the States of Illinois, Missouri, and the territory north of the State of Illinois," approved June 26, 1834, so far repeals the 5th section of the act of the 3d of March, 1807,' entitled "An act making provision for the disposal of the public lands situated between the United States military tract and the Connecticut reserve, and for other purposes," as to subject the lands mentioned in said act of June 26, 1834, containing lead mines, to be entered and purchased by preemption under any of the preemption laws of congress? 2. Whether the said act (1834) requires the President of the United States to cause lands containing lead mines to be sold, or only authorizes him to do so in his discretion? 3. Whether lands containing lead mines are subject to be held or purchased under any of the acts of congress granting the rights of preëmption to settlers upon the public lands? 4. Whether the digging lead ore from the lead mines upon the public lands of the United States, is such a waste as entitles the United States to the allowance of a writ of injunction to restrain? The questions certified in the action at law, were as follows: 1. Does the act of congress, entitled "An act to create additional land districts in the States of Illinois and Missouri, and in the terri 1 2 Stats. at Large, 449. United States v. Gear. 3 H. tory north of the State of Illinois,” approved June 26, 1834, require the President of the United States to cause to be offered for sale the public lands situate in the land district created by said act, containing lead mines? 2. Does the said act require the President to cause said lands containing lead mines, to be sold, notwithstanding the 5th section of the act of the 3d of March, 1807, entitled "An act making provisions for the disposal of the public lands situated between the United States military tract and the Connecticut reserve, and for other purposes?" 3. Are the said lands, containing lead mines, subject to preëmption under any of the preëmption laws which have been passed by congress? 4. Does the 4th section of the said act of 1834 so far repeal the 5th section of the act of 1807, as to subject the public lands containing lead mines, to be sold by the United States in the same manner as other public lands not containing lead mines? 5. Are the said lands, containing lead mines, subject to preëmption or sale under any of the existing laws of congress? The acts of congress referred to in the opinion of the court, are: March 3, 1807, § 5, (2 Stats. at Large, 449.) This section relates to lead mines in the Indiana territory, which then included what is now the State of Illinois. May 29, 1830, §§ 1, 4, (4 Stats. at Large, 420;) April 5, 1832, (4 Stats. at Large, 503 ;) July 14, 1832, (4 Stats. at Large, 603;) March 2, 1833, (4 Stats. at Large, 663;) June 19, 1834, § 1, (4 Stats. at Large, 678;) June 26, 1834, § 4, (4 Stats. at Large, 687;) June 22, 1838, (5 Stats. at Large, 251;) June 1, 1840, (5 Stats. at Large, 382;) September 4, 1841, § 10, (5 Stats. at Large, 453.) Nelson, (attorney-general,) for the United States. Hardin, contrà. [ *129 ] * WAYNE, J. delivered the opinion of the court. From the foregoing statement of all the acts of congress having any bearing on the subject before us, we think it obvious it was not intended to subject lead-mine lands in the districts made by the act of the 26th June, 1834, to sale as other public lands are sold, or to make them liable to a preëmption by settlers. * The argument, in support of a contrary conclusion, is, [*130 ] that the reservations in the fourth section of that act, with the authority given to the President to sell all the lands in the districts, any law of congress, heretofore existing, to the contrary not United States v. Gear. 3 H. withstanding, exclude lead-mine tracts in those districts from the operation of the act of the 3d of March, 1807. At most, the language of the fourth section of the act of 1834 imparts only an authority to the President to sell, given in the same way as it has been conferred upon him in other acts providing for the sale of the public lands. Then the question occurs, whether the section of an act, in general terms to sell, (certain reservations excepted,) without any reference to a previous act, which declares that lead mines in the Indiana territory shall be reserved for the future disposal of the United States, is so far a repeal of the latter, that lead-mine lands in a part of that territory are subjected to sale as other public lands are. Why should congress, without certain words showing an intention to depart from the policy which had governed its legislation in respect to lead-mine lands in the whole of the Indiana territory, from 1807 to 1834, be supposed to have meant to exempt a portion of the lead-mine lands in that territory from that policy, in an act, the whole purview of which was to create additional land-sale districts? Besides, the reservations in the fourth section of the act of 1834, except the tract for the village of Galena, are no more than the reaffirmance of some of the provisions of other statutes respecting reservations made or to be made out of the public lands in other districts, and cannot, therefore, be considered as an enumeration in connection with the general power to sell all lands, any law of congress heretofore existing to the contrary notwithstanding, repealing another act, providing for a reservation of a particular class of lands within the same land district to which the act of 1834 applies. The reservations in the fourth section of the act of 1834 are limitations upon the authority to sell, and not an enlargement of the general power of the President to sell lands, which, by law, he never had a power to sell which have always been prohibited by law from being sold - and which never have been sold, except under the authority of a special statute, such as that of the 3d March, 1829,' 1 Land Laws, 457, which authorized the President to cause the reserved lead mines in the State of Missouri to be sold. In looking at that act, no one can fail to observe the care taken by the government to preserve its property in the leadmine lands, or to come to the conclusion that the reservations of them can only be released by special legislation upon the subject-matter of such reservations. Authority, then, to sell all lands in the districts made by the act of 1834, though coupled with the concluding words of the fourth section, can only mean all lands not prohibited by law from being sold, or which have been reserved from sale by force of law. The propriety of this interpretation of that section is 14 Stats. at Large, 364. |