United States v. Drennen

by the U.S. District Court for the District of Arkansas

United States District Court for the District of Arkansas

Hempst. 320

The United States  v.  JOHN DRENNEN and ELIAS RECTOR, administrators of Wharton Rector, deceased.

1. Suits may be brought in the courts of the United States against executors and administrators, and judgments rendered against them in their representative capacity, and executions issued against the property of the estate unadministered, and a sale thereof, whether it be lands, slaves, or goods and chattels, will pass a valid title to the purchaser.
2. Every court must necessarily possess the power of executing its judgments and decrees.
3. The judicial act of 1789 expressly provides for rendering judgments against the estates of deceased persons, and also for issuing executions on all judgments rendered in the courts of the United States.
4. The jurisdiction of the courts of the United States is derived alone from the constitution and laws of the United States, and cannot be enlarged, diminished, or affected by State laws or regulations. 3 Wheat. 221; 11 Peters, 175.
5. By the laws of Arkansas, goods and chattels, credits and effects, lands, tenements, and slaves are assets in the hands of an administrator for the payment of debts.
6. Judgments may be rendered de bonis testatoris under these laws, and executions issued against the estate of the intestate, and the same sold to satisfy the execution.
7. Where property will be sacrificed, the officer should not sell, but wait for a venditioni exponas.
8. See notes, as to sale of property of deceased persons on judgments and execution.

March, 1845.—Petition to quash execution, determined before the Hon. Benjamin Johnson, district judge of the United States for the district of Arkansas, at chambers.

"District of Arkansas, sct.

"To the Hon. Benjamin Johnson, Judge of the District Court of the United States in and for the District of Arkansas.

"Your petitioners, John Drennen and Elias Rector, as administrators of all and singular the goods and chattels, rights and credits of Wharton Rector, deceased, respectfully represent,

"That heretofore, namely, on the 12th day of October, A.D. 1844, the United States, by the consideration and judgment of the district court of the United States for the district of Arkansas, recovered against your petitioners, as and in their capacities of administrators as aforesaid, the sum of seven thousand five hundred and twenty-five-dollars and ninety-one cents, which were adjudged to them for their damages, with interest on said damages at the rate of six per cent. per annum from said 22d day of October, 1844, till paid, together with the sum of fifty-five dollars and fifty-one cents for costs sustained in said suit, which by the record thereof remaining in said court more fully appears.

"Your petitioners further represent, that afterwards, namely, on the fourth day of March, A.D. 1845, said United States, for having execution of said judgment, sued out of the office of the clerk of said court a certain writ of fieri facias, directed to the marshal of said district, by which said writ said marshal was commanded that of the goods and chattels and slaves, lands and tenements of the said intestate Wharton Rector, at the time of his death, he should cause to be made the damages and interest aforesaid, together with the costs aforesaid, so that he should have the same before the clerk of said court at his office in the city of Little Rock on the first Monday of April next, to be paid over to said plaintiffs; which said writ afterwards came to and is now in the hands of said marshal, who has, by virtue thereof, levied upon and advertised that the following described lands and tenements, situated in Rector town, Pulaski county, in the district aforesaid, namely, lots 4, 5, 6, 7, 8, 9, 10, 11, and 12, in block or square No. 6; fractional block No. 5, consisting of lots 1, 2, 3, 4, 5, and 6; fractional blocks 12 and 13; blocks No. 8 and 9; fractional blocks 3 and 4, and block No. 16, will be sold on the 29th day of March, 1845, to satisfy said writ of fieri facias; all which by a copy of said writ, with the marshal's certificate thereon, herewith exhibited, marked A., and to be taken as part hereof, will more fully appear.

"And your petitioners submit and insist, that by the law of the land, no writ of execution could issue against them, as such administrators, upon said judgment.

"Your petitioners therefore pray your honors to supersede, quash, and set aside said writ of fieri facias, together with all the proceedings had under and by virtue thereof.

"And your petitioners will ever pray, &c.,

"JOHN DRENNEN and ELIAS RECTOR,

"As administrators of Wharton Rector, deceased."

EXHIBIT A.

"United States of America, sct. District of Arkansas.

"The United States, to the Marshal of the Arkansas District, Greeting:

"Whereas, the United States, on the 12th day of October, A.D. 1844, in our district court of the United States for the district of Arkansas, hath recovered against John Drennen and Elias Rector, administrators of the estate of Wharton Rector, deceased, the sum of seven thousand five hundred and twenty-five dollars and ninety-one cents (say $7,525.91), which were adjudged to them for their damages, with interest on said damages at six per centum per annum from the said 22d day of October, A.D. 1844, till paid, together with the sum of fifty-five dollars and forty-one cents for costs sustained in the suit. You are therefore commanded, that of the goods and chattels and slaves, lands and tenements of the said intestate Wharton Rector, at the time of his death, you cause to be made the damages and interest aforesaid, together with the costs aforesaid, so that you have the same before the clerk of our said court at his office in the city of Little Rock on the first Monday of April next, to be paid over to said plaintiff, and then and there certify how you have executed this writ.

"In testimony whereof, Benjamin Johnson, Esq., judge of our said court, hath caused the seal of said court to be hereto affixed this fourth day of March, A.D. 1845, and the sixty-ninth year of American independence.

"WM. FIELD, clerk.

"I, Henry M. Rector, United States marshal in and for the district of Arkansas, do hereby certify that the foregoing is a true copy of the execution now in my hands in the cause therein mentioned, and that I have levied said execution upon lots 4, 5, 6, 7, 8, 9, 10, 11, and 12, in block or square No. 6; fractional block No. 5, consisting of lots 1, 2, 3, 4, 5, and 6; fractional blocks 12 and 13; blocks No. 8 and 9, fractional blocks 3 and 4, and block No.16,—all in Rector town, Pulaski county, Arkansas.

"And I do further certify, that I have advertised that said parcels of land would be sold, to satisfy said execution, on the 29th day of March, 1845.

"Given under my hand this 13th day of March, 1845.

"HENRY M. RECTOR,

"U.S. Marshal, District of Arkansas."

Written notice was served on S. H. Hempstead, attorney for the United States for the district of Arkansas, on the 13th of March, 1845, that the above petition would be heard before the Hon. Benjamin Johnson, district judge, at chambers, on the 14th of March, 1845; at which time the matter of the petition was argued by George C. Watkins for the petitioners, and S. H. Hempstead, district attorney, for the United States, who admitted the facts stated in the petition to be true. The application was denied on the merits, but no written opinion was delivered at the time. Subsequently the following was written.