632
FEDERAI, REPORTER.
MILMINE
v. BASS and others. December Term,1886.) . ABANDONMENT . . SECOND LEVY-
(Girottit Gourt.
n. Indiana.
t.·
. RULlI:. iN
..rt;'iii' '{naiana, the owner of an 'execution releases and abandons a levy mmie;uponrealestate sufficient to satisfy a part only of the writ, and causes ".levy,and /lale of other relil estate, the sale will not be deemed void. but, be· ing irregUlar, it may be set aside, if necessary, in order to do equity between parties concerned. . . If an execution be issued without proper notation of credits for payments NOTICE.
LEVY ON REAL hmIANA.·
2: SAME-PAYMENTS NOT CREDITED"";LEVY FOR FULL AMOUNT-GOOD-FAITlI
to a purchaser without notice of the irregularity, the sale will not, on that account, be i n v a l i d . . . 8. SAME-EQUITIES OF JUNIOR-LIEN-HoLDER-:-OTllER LANDS AVAILABLE.
upon the judgment, and land be levIed upon and sold by virtue of such writ,
An execution creditor whose judgment is a lien upon different bodies of land is not bound. when making a levy, to inquire into the equities of juniOr lien-holdorSj and if, while other lands are first equitably liable to seizure, a levy be made upon a tract which is subject to a junior lien, and the holder of such lien neglects to assert his rights in court before the sale, he cannot afterwards have the same a n n u l l e d . .
4-SAME-REMEDY OF JUNIOR LIEN·HoUDER AFTER SALE.'
If the owner of lands subject to a, judgment lien has mortgaged a Jlart . thereof to A., and afterwards bas mortgaged or conveyed the remainder, worth more than the amount oithe judgment, to B., lj,nd thereafter .the land mortgaged to is levied on, and sold to satisfy the judgment, B. being the the purchaser.whileA. may not have the sale annulled, he may, to the extent of his'interest, require B. to account to him for the value of the mort. ' . gaged property so sold OD executioD.
5.
Where an agreement for an extension of time upon a judgment was made betweenthepdncipal debtor and the creditor. acting on the faith of a written consent signed in the nome of a firm which was liable as surety in the judg. ment, and it turned out that, excepting one, the members of the firm had not authorized. and were not bound by, this consent, the agreement for extension was not binding upon the creditor. (SgllabU8 b1l t1l.6 Court.)
PRINCIPAL AND SURETY-EXTENSION OF TrME- UNAUTHORIZED CONSENTPARTNERSHIP.
In Equity.' On May12, 1873, Stearns & Co. recovered 8 judgmentin the state court against Gardner, Blish & Co., principals, and Bowser, Prentis, and Falls, as sureties, for $2,212. 85. At that time Bowser owned real estate in Allen county, Indiana, worth from $20,000 to $30,OOO,on.which there were liens amounting to about $6,000. On December 31, 1873, the principal debtors paid $354.93 on the judgment, and on January 1,1874, the same parties paid $145.07. On May 1, 1874, the same parties paid interest on the judgment. to that On June 20, 1876, the principal debtors paid the interest due and to become due on the judgment up to January 1, 1877. The interest so paid in advance, being at the rate of 10 per cent. per annum on the judgment, was paid upon the agreement that the day of payment should be to January 1, 1877. Be{ore granting the extension, Stearns & Co. wrote to Bowser & Co., (8 firm
MILMINE V. BASS.
633.
composed of Bowser, Prentis, and Falls,) asking their approval. The letter was returned to Stearns & Co., indorsed: "FORT WAYNE, April 13,1875. We agree to the within propo,c:;ition as stated. J. C. BOWSER & Co.,".,-in the handwriting of J. C. Bowser. On June 12, 1877, execution was issued on the judgment, and levied on lots 116.and 117, old plat of the city of Fort Wayne. The execution was issued for $2,212.85, and costs and interest. There was then due on the judgment, according to defendant's computation, $1,971.06, and according to plaintiff's computation, the sum of $1,552.05. The property was advertised, and offered for sale, but the execution was returned on July 21,1877, indorsed, "Not sold for want of bidders." On October 9, 1877, execution was issued, and returned October 25.1877, "No property found to levy on." On November 26, 1877, a writ of venditioni exponas was issued, reciting former levy on lots 116 and 117, and ordering their sale. On December 22, 1877, the sheriff returned that he had advertised the property, buthad made no sale for want of bidders.· On July 5, 1878, a second venditioni exponas was issued, col!lmanding the sale of the same lots. On July 6, 1878, this writ was returned indorsed as follows: "This execution is returned unsatisfied. The within levy released. The clerk will please issue alias execution. "July 6, 1878. (Signed] "C. A. MUNSON, Sh'ff, "By PLATT J. WISE, Deputy." The action of the sheriff in returning this writ was upon the express orders of Stearns & Co., the judgment plaintiffs. The alias execution was issued, and the lands in controversy levied on and sold to John H. Bass, defendant, on August 3, 1878, for $2,000, and, not being redeemed within the year, he now holds them by sheriff's 1878. Bass became the owner of lots deed. On· the seventh of 116 and 117, by purchase at foreclosure sales and !!heriff's deeds. issued thereon, and by the purchase of outstanding tax titles, at a cost of $10,209.34. He also, subsequent to the execution of the Milmine mortgage, became the owner of a large amount of property, conveyed to him by said Bowser and wife. The plaintiff, Milmine, claims title to the lands in controversy under a decree of fo.reclosure in his favor, rendered by the superior court of Allen county on July 24, 1879, for $6,838, upon a note and mortgage executed by Jacob C. Bowser and wife, of date June 1, 1875, to one Smith, the assignor of the plaintiff. Bass was indorser and surety for the firm of Bowser & Co. to a large amount, and, to indemnify him, Bowser and Bowser & Co. had given him a mortgage on all Bowser's property, which mortgage was junior to Milmine's mortgage and Stearns' judgment. The questions involved in the case, as stated by the master, to whom it was referred, are: (1) Did not the levy on lots 116 and 117 render void the subsequent levy of the execution issued on the same judgment upon the lands in controversy? (2) not the levy of the Stearns execution upon the land in controversy void as to all parties with notice,
634
I'EDERAL REPORTER.
made, as it was, in violation of the clear equities oithe plaintiff, while other lands of ample value to make the execution were liable to the judgment lien? ·'(3) Did not the extension of time by the original judgment creditors discharge the land in controversy from the judgment lien? (4) Did not the issuing of the execution upon which the land was sold for a larger amount than was due thereon, with the intent to collect this excess, render the execution and sale to Bass thereon void? The master found that lots 116 and 117, which were first levied on under the Steams judgment, were of sufficient value to satisfy a consid. erable portion of that judgment; that, under the decisions of the supreme court of Indiana, a levy on real property, sufficient to pay the execution, or a substantial part of 'it, operates as a satisfaction until such levy is legally disposed of by sale of the property, or in some other legal manner, which has become a rule of property in Indiana; that, in this case, the federal courts arebonnd by the decisions of the Indiana supreme court, notwithstanding the fact that federal decisions are to the contrary. Hence the release oftha levy on lots 116 alid 117, and the subl'lequent levy on the lands in controversy and· the sale to Bass, were irregular and void. He also finds that said release of the levy on lots 116 and 117, and the levy on the lands covered by the Milmine mortgage, was with the knowl· edge and by the agency of Bass; that the extension of time by the plaintiffs to the princi pal defendants. in the Stearns judgment was with the consent of J. C.Bowser, but without the consent of Prentis and Falls; and that Bass, not being made a party to the Milmine foreclosure suit, is not bound by the decree therein. Questions raised on exception to the report by Bass. L. M. Ninde and T.E. EUiscm, for complainant. R. S. Taylor an.d -!l. O. ReU, for defendant Bass. WOODS, J. I do not agree with the master that, under the Indiana decisions, the levy of the Stearns execution upon the property in question was void, though it was irregular, because of the previous levy upon other real estate. It is quite clear that the property first levied upon, considering the incumbrances upon it, and the wife's contingent interest, was not sufficient to satisfy more than a small part of the sum due upon the writ; and, this being so, the decision in liindley v. Kelley, 42 Ind. 294, is direct authority that the second levy, and the sale under it, is not to .be held \Toidmerely because of the first levy, which had been abandoned by the oWner of the execution. It was doubtless an irregularity to take a new execution, as was done in this case, lJ.nd such an irregularity as may justify an interference by the court in order to do equity between the parties, if it is apparent that substantial rights have been violated by the sale. But,· the property first levied upon having been insufficient in value, that levy did not, in my judgment, operate, under the Indiana deCisions, to satisfy the 'judgment in the full sense; and if, on account of thElirregular issue of the second execution, the sale made under it should be set aside, it would re!1ult that the judgment, notwithstanding theflrst levy, must be considered as having been in force all the
XII,JUNE 11. BASS.
635
time, and, by virtue of it, Bass, being subrogated to the rights of Stearns & Co., who were not made parties to the oomplaitmnt's foreclosure suit, would be entitled to redeem from the sale made to the oomplainant upon his decree. Upon the second point, it is quite clear that the complainant might have compelled the sale of the other property of Bowser to satisfy the Stearns execution, before resort to the property oovered by their mortgage; but, the complainant not having gone to the courts for this relief, the exeoution plaintiff was not bound to inquire into the equities in this respect, and to direct the order of sale accordingly; and it follows that the sale is not void, nor to be annulled, on this account, at the instance of oomplain,ant. Sansberry v. IJord, 82 Ind. 521; Wiggin v. Suffolk, 18 Pick. 145; S. C. 29 Amer. Dec. 576; James v. Hubbard, 1 Paige, 228; Clowes v. Dickenaon, ,5 Johns. Ch. 235; S. C. (on appeal) 9 Cow. 403; Wise v. Shepherd, 13 Ill. 41. Nevertheless the complainant, as some of the cases just cited show, is not without remedy; but from the defendant,who obtained an inequitable advantage by means of the sale as made, is entitled to compensation .:to the extent or that advantage, that is to say, to the extent of the value of the property s,o sold, not exceeding the amount due complainant upon his mortgage debt. The report of the master is perhaps not explicit 5)n the point,but, as it is not questiooed that the prop'erty of Bowser, which was purchased by Bass, and which ought to have been sold on the Stearns' execution before resort to the lands mortgaged to the complainant, was worth, over and above all incumbrances created before the execution of complainant's mortgage, more than the amount due upon that mortgage, treated as a subsisting security; and, this being so, the decree here ought to be that the defendant pay to the plaintiff, within a time stated, the amount due upon their mortgage, with stipulated interest to date of payment, and that, in default of this, the sale to the defendant be annulled, and the title of the complainant , under his purchase be confirmed., The rights of the parties are not affected, in my opinion, by the extension of time granted upon payment of interest in advance upon the Stearns judgment. The extension was granted upon the supposed consent of Bowser & Co., and, if Bowser's partners were not bound by that consent, the agreement to extend was not binding on the creditor, and execution might have issued at any time, the interest paid in advance being retnrned or treated as a payment upon the judgment. Albright v. Griffin, 78 Ind. 182. The sale was not invalid because the proper credits for payments were not noted on the execution, Bass, the purchaser, having no knowledge of the facts. The purchaser at an execution sale is not bound to have examined the dockets to see if the clerk has done his duty in this respect. The presumption is that the officer has done his, duty in such particulars. Fowler v. Griffin, 83 Ind. 297. .In so far as the master's report is inconsistent with the foregoing, the thereto are sustained, and in other respects overruled.
636
EEDERAI:. REPClRTER.
UNITED STATES .". WIGHTMAN.
(Diatrict Court. "IV, D. PennaylTJania. December 80, 1886.) 1. OBSCENE PUBLICATIONS-MAILING OBSCENE MATTER-REV. ST.
U. S. § 8898. A letter, although exceedingly coarse and vulgar, and grossly libelous,imputing to the person addressed an atrocious crime,-but which has no tendency to excite libidinous thoughts, or impure desires, or to deprave and corrupt the morals of those whose minds are open to such influences, is not "obscene, lewd. or lascivious," within the of the first clause of section 8893 of the Revised Statutes, deflning non-mailable matter, etc. 1 Whether said clause embraces a letter inclosed in a sealed envelope, fng nothing but the address of the person to whom it is written. not decided)
2.
SAHEl-LETTER IN ENVELOPE.
Indictment 'for Ma:iling Obscene Letters. Sur motion in arrest ofjudgment. . Wm. A. Stone, U. S. Atty., for the United States. Thomas W. Lloyd, for defendant. ACHESON, J. In the view I take of thil'l case, it is not necessary for me to express any opinion upon the unsettled question (U. S. v. Ohase, 27 Fed. Rep. B07) whether the words, "every obscene, lewd, or lascivious book, pamphJoet, picture, paper, writing, print, or other publication of an indecent character," as used in the first clause of section 3893 of.the Revised Statutes defining non-mailable matter, etc., include an obscene letter inclosed in a sealed envelope, bearing nothing but the address of the person to whom the letter is written; for I have reached the conclusion that neither of the letters which are the subject of this indictment, either in language or import,is "obscene, lewd, or lascivious," ;within the purview of the statute. According to the well-considered case of U. S; v. Bennett, 16 Blatchf. 362, the test of obscenity is whether the tendency of the matter is to deprave and corrupt the morals of those whose minds are open to such This, it seems to me, correctly indicates the purport of the word "obscene," as employed in this statute. Like the tenns "lewd" and "lascivious," with which it is associated, it implies something tending to suggest libidinous thoughts, or excite impure desires. Now, I do not think that either of the letters under consideration has any such corrupting or debauching tendency. Both letters are exceedingly coarse and vulgar, and one of them is grossly libelous, -imputing to the person addressed an atrocious crime,-but none of these characteristics, nor all combined, are sufficient to bring the letters within the inhibition and penalty of the statute. U. S. v. Smith, 11 Fed. Rep. 663. the word "indecent," in the first clause of section I may add 3893, seems to be confined to the "other publication" declared to be nonmailable. But, at any rate, the term as there employed has been held to mean that which "tends to obscenity," or "matter having that form of J See
note at end of case.
IN RE BURTON.
637
indecency which is calculated to promote the general corruption of morals." U. S. v. Bennett, 8upra. The opinion of the court, then, being that the letters in question do not contain anything of an "obscene, lewd, or lascivious" character, within the meaning of the statute, judgment must be arrested; and it is 80 ordered. NOTE. OBsCi!NB PuBLIOATIONS. The test which determines the obscenity 01' indecency ofa publication is the tendency of the matter to deprave and corrupt the morals of those whose minds are open to such influences, and into whose hands such a publication .may fall. U. S. Bebout, 28 Fed. Rep. 522; U. S. v. Britton, 17 Fed. Rep. 731. A letter which, if it should fall into the hands of .an inexperienced or person. would excite impure thoughts and indecent ideas, is obscene and indecent. U. S. v. Britton, Bupra. An Ull:Istrated pamphlet. purporting to be a work on the sUbject of treatment of spermatorrhea and impotency, and consisting partially of extracts from standard books upon ll1E!dicine and surgery, but of an indecent and obscene cbaracter. and intended for general' circulation, held to oome within the provisions of section 3893 of the Revised StatuteS. U. S. v. Chesman, 19 Fed. Rep. 497. As to the application of t.he sj;ll.tuteto the mailing of sealed letters, see U. 8. v. Beho.nt, 28 Fed. Rep. 522, and note.
v.
In re BURTON, Bankrupt. (Di8t:rict Oo'Urt, lY. D. Virginia.
September 24, 1886.)
t.
BANKRUPTCy-DISCHARGE-PURCHASE BY BANKRUPT OF HIS OWN DEBTS.
The discharge of a bankrupt, as a bar to the remedy for the recovery of the debt, is analogous to the bar of the statute of limitationS,-neither destroys .the debt, and both must be pleaded; and a purchase by a discharged bankrupt olhis own debt o'perates to extinguish the debt, the characters of debtor and cre4itor meeting III one and the same person. Abankrupt Cannot purchase and take an assignment to himself of lien debts against his estate in bankruptcy, and collect the same for his own use out of assets in the hands of his assignee in bankruptcy, to the exclusion of subsequent lien-holders. .
SAME.
In Bankruptcy. On exceptions to reports of liens by special commis· sioner. MorriB, Brown k NOWlin, for creditors. Mr. Bocock and Kean « Kean, for Burton, bankrupt. PAUL, J. Special Commissioner William B. Tinsley, acting under de-cree entered October 1, 1884, made and filed, April 10, 1885, his port of liens and their priorities in this case. To this report exceptions were filed, and on the sixteenth of January, 1886, a decree was entered recommitting the report to said special commissioner, directing him to make certain amendments to his original report, and inquiries specially designated in said decree, and to report thereon. Said commissioner filed his amended report, March 11, 1886. In the amended as in the original report he reports in favor of E. J. Burton, the bankrupt, against his estate in the hands of the assignee in bankruptcy, the following liens:
/