Buncombe County NcArchives Court.....David Tate, John Young V. 1819
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File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 3, 2009, 5:45 pm

Source: Nc Reports
Written: 1819

Den on the Demise of John Young v. David Tate

From Buncombe

November Term 1819

The act of Congress of 3 March, 1797, gives to the United States a priority, 
1st. Where the debtor has become insolvent; 2d. Where the estate of a deceased 
debtor in the hands of executors or administrators shall be insufficient to 
pay all the debts due from the deceased; 3d. Where the debtor, not having 
sufficient property to pay all his debts, shall make a voluntary assignment 
thereof; 4th. Where the estate and effects of an absconding, concealed or 
absent debtor, shall be attached by process of law.

The act of July, 1798, makes the amount of debt due to the United Slates a 
lien upon the real estate of the collector, from the time suit shall be 
instituted for recovering the same; and provides that, for want, of goods and 
chattels to satisfy the judgment, the land shall be sold. The lien is 
qualified and contingent, and subjects the lands to be sold only where the 
debtor has not personal estate.

Lambert Clayton being the owner of the land in question, judgment was 
recovered against him by Hightower in 1807; on which executions regularly 
issued, and the last was levied on the land, and on 8 October, 1808, the land 
was sold by the Sheriff, and the lessor of the Plaintiff became the purchaser, 
and now claimed the land under this purchase.

Clayton was a collector of the revenue of the United States, and entered into 
bond on 8 March, 1799, with Tate, the Defendant, and J. Hightower, his 
sureties; on which bond judgment was recovered against him at the Fall Court 
in 1806 for $432.25, and execution regularly issued thereon till May term, 
1808; from which time there is a notice upon the docket that an execution 
issued, but no writ is to be found. From that time no execution issued till 
May, 1810, when, without any revival of the judgment, a fi. fa. issued, and 
was levied upon the land. The Marshal sold the land, and conveyed it to the 
Defendant in October, 1810.

Upon the trial, the Court instructed the Jury to find for the defendant; and a 
rule obtained for a new trial being discharged, the Plaintiff appealed.

Taylor, Chief-Justice: Several questions have been raised in this case, but 
there are two only, on which it is necessary to give an opinion. These are, 
1st. Whether the United States are entitled to a priority in the payment of 
the debt due to them, under the act of Congress of 3 March, 1797; 2d. Whether 
they have gained a lien on the land of Clayton under the act of Congress of 11 
July, 1798, ch. 88, sec. 15, by commencing a suit against him for their debt.

The first act of Congress establishes a priority for the United Slates, where 
the debtor becomes insolvent, where the estate of a deceased debtor in the 
hands of executors or administrators, shall be insufficient to pay all the 
debts due from the deceased, and the priority is extended to cases in which a 
debtor, not having sufficient property to pay all his debts, shall make a 
voluntary assignment thereof, or in which the estate and effects of an 
absconding, concealed or absent, debtor, shall be attached by process of law, 
as well as to cases in which an act of legal bankruptcy shall be declared. No 
construction has hitherto been given to this act, which invests the priority 
it creates, with the character of a lien, so as to bind the debtor's property 
from the time he contracts the debt. Wherever the right exists in the United 
Slates, it must be upon proof that their debtor comes within some one of the 
descriptions of the act; that he has become insolvent; that the estate of a 
deceased debtor is insufficient to pay all his debts; that he has made a 
voluntary assignment of his property, not having sufficient to pay all his 
debts; or where the estate and effects of an absconding, concealed or absent 
debtor, shall be attached. That Clayton became indebted to the United States, 
and that land belonging to him was sold under execution to satisfy their debt, 
is all the information the record discloses touching his circumstances. There 
is no averment of his insolvency, nor any other legal foundation for the 
priority, and it cannot consequently be presumed to exist.

2d. The act of Congress of July, 1798, makes the amount of debts due to the 
United States a lien upon the real estate of the collector, from the time suit 
shall be instituted for recovering the same; and it provides, that, for want 
of goods and chattels to satisfy the judgment, the land shall be sold. It is 
evident, from the law, that the lien is qualified and contingent, and subjects 
the lands to be sold only in those cases, where the debtor has not personal 
estate. If, after suit brought by the United States against the debtor, any 
person purchases his land from him, or under an execution against him, the 
purchaser acquires it, subject to a lien, which shall divest him of it in 
favor of a purchaser under the United States, who can prove that, when he 
bought the land, the debtor had not personal property sufficient to pay the 
debt. But if this proof be not made, the lien had not such an existence as 
authorized the sale of the land under it. On this material point the record is 
silent in respect to Clayton. The solvency of his sureties can have no 
influence upon this question.

As it seems clear that the Defendant can claim no title by virtue of the 
priority of the United States, or of their lien, it is unnecessary to examine 
the other objections made to the regularity of the execution.   

A new trial must be awarded.


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