FORD V. DOUGLAS, 46 U. S. 143 (1847)

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U.S. Supreme Court

Ford v. Douglas, 46 U.S. 5 How. 143 143 (1847)

Ford v. Douglas

46 U.S. (5 How.) 143


By the laws of Louisiana, where there has been a judicial sale of the succession by a probate judge, a creditor of the estate, who obtains a judgment, cannot levy an execution upon the property so transferred upon the ground that the sale was fraudulent and void. He should first bring an action to set the sale aside.

The purchaser under the judicial sale having filed a bill and obtained an injunction upon the creditor to stay the execution, it was an irregular mode of raising the question of fraud for the creditor to file an answer setting it forth and alleging the sales to be void upon that ground. He should have filed a cross-bill. Exceptions to the answer upon this account were properly sustained by the court below.

But if the court below should perpetuate the in upon the defendants' refusal to answer further, the injunction should be free from doubt, in leaving the creditor to pursue other property under his judgment, and also at liberty to file a cross-bill. If the injunction does not clearly reserve these rights to the creditor it goes too far, and the judgment of the court below must be reversed.

As the merits of the case were not involved in the decision of the court, it will only be necessary to give such a narrative of the facts as will illustrate the points of law upon which the decision turned.

On 24 November, 1837, James S. Douglas of the State of Louisiana, made his last will and testament, as follows:

"I, James S. Douglas of the Parish of Concordia, and State of Louisiana, being feeble in body, and knowing the uncertainty of this life, but of sound and disposing mind and memory, do make and publish this my last will and testament."

"First. I direct that all my just debts be paid as soon after my

Page 46 U. S. 144

decease as my executors shall realize the same from the real and personal estate entrusted to their care and management."

"Secondly. Reposing the utmost confidence in my beloved wife, Emeline Douglas I hereby constitute and appoint her executrix, and my brother, Stephen Douglas and my friend, Passmore Hoopes, executors of all my estate, real and personal, lying and being in the State of Mississippi."

"Thirdly. I also appoint my brother, Stephen Douglas and my friend, Passmore Hoopes, executors of all my estate, real and personal, lying and being in the said State of Louisiana."

"In witness whereof I have hereunto set my hand any seal this twenty-fourth day of November, one thousand eight hundred and thirty-seven."


This will, being duly attested, was admitted to probate in Mississippi on 25 December, 1837, and letters testamentary granted. It is not necessary to follow the proceedings in Mississippi further.

In 1838, May 26, in the State of Louisiana, before Richard Charles Downes, Parish Judge in and for the Parish of Madison, ex officio judge of probates, came Stephen Douglas presented his petition, setting forth the death of his brother, James S. Douglas as happening in November, 1837; that he made his last will and testament, wherein he appointed the said Stephen Douglas and Passmore Hoopes testamentary executors of his estate in Louisiana; that probate of the will had been made in Claiborne County, Mississippi; therefore, praying letters in pursuance of the testament, and an inventory, whereupon the judge ordered that upon probate of the testament an inventory be taken.

On 30 March, 1839, the will was proved in Louisiana, as it had before been in Mississippi. Amongst other claims against the estate, Stephen Douglas, the executor, filed an account claiming a debt due to him of $53,150.42.

On 31 October, 1839, Emeline Douglas the widow, was appointed guardian of her four children, and Archibald Douglas a younger brother of Stephen, was appointed under tutor or guardian. A family meeting was called, and attended the parish judge, which advised the sale of the plantation and slaves, implements, cattle &c., at the head of Lake St. Joseph's, to satisfy the balance due to Stephen Douglas the executor.

The sale was accordingly ordered by the parish judge, and took place on 23 March, 1840, when Mrs. Emeline Douglas and Archibald Douglas became the purchasers.

On 1, 1840, Emeline Douglas obtained a judgment in her favor against the estate for $76,634.74, and, on 22 of April the parish judge ordered another sale to take place for the purpose of paying this debt. chanrobles.com-red

Page 46 U. S. 145

On 8 June, 1840, the parish judge made sale of a plantation called Buck Ridge, slaves, cattle, corn &c., all of which belonged, jointly, to James S. Douglas the deceased, and Stephen Douglas the executor. This property was purchased by Emeline Douglas and Archibald Douglas for $83,000.

In December, 1840, and January, 1842, Ford, a citizen of Virginia, obtained the three following judgments against the executor, in the circuit court of the United States, viz., the one judgment obtained on 23 December, 1840, for $9,180, with interest, at the rate of eight percent per year, from 15 January, 1838, on one-half thereof, and from 15 January, 1839, on the other half thereof, besides costs.

Another judgment, of 26 December, 1840, for $4,590, with interest at same rate from 15 January, 1840, besides costs.

The third, of January 3, 1842, for $4,590, with interest at same rate until paid, besides costs -- making together $18,360, besides interest and costs.

Executions were issued upon these judgments and levied upon the property which had been purchased by Emeline Douglas and Archibald Douglas.

On 21 December, 1842, Archibald Douglas Maxwell W. Bland and Emeline, his wife (late Emeline Douglas), filed their bill in the Circuit Court of the United States for the Eastern District of Louisiana against Christopher Ford and the marshal, praying for an injunction to stay further proceedings under the judgments, and that they might be quieted in their possession of the property which they had purchased.

On 30 December, 1842, an injunction was issued accordingly.

On 21 April, 1843, Ford filed his answer, in which he alleged that the proceedings under the will, as well in Mississippi as in Louisiana, were the result of fraud, collusion, and combination, in consequence of which they were null and void and passed no title to the complainants. The answer then proceeded to set forth with great particularity the acts of which he complained and concluded as follows:

"This respondent, having answered the allegations in said petition set forth, prays this Honorable Court that the said petition may be decreed to be dismissed, and the injunction had and obtained in this case may be dissolved, and a judgment rendered against the said petitioners and the sureties on their injunction bond for damages, according to law. That this Honorable Court make such other judgment, orders, and decrees as may be found legal and proper to declare void and null the sales relied on in said petition, to finally dissolve the said injunction with legal damages in favor of this respondent, to dismiss said petition and relieve this respondent from the opposition of said petitioners, to order the marshal to proceed

Page 46 U. S. 146

to the sale of said property under the said three writs of fieri facias, for the satisfaction of the said judgments of this respondent, and that this respondent have judgment for his costs."

"And this respondent will ever pray, &c."


On 22 April, 1843, the following exception to the answer was filed:

"The said plaintiffs except to the answer filed by the said defendants in this behalf because the matters and things set forth in the said answer cannot by law be inquired into in the present suit or proceedings instituted by the said plaintiffs. And the said plaintiffs, not admitting any of the facts or matters set forth and alleged in the said answer of the said defendants, but on the contrary denying and protesting against the truth of all and every part thereof and alleging that the truth thereof cannot be inquired into in this action, pray that they may have the benefit of their injunction and that the same may be made perpetual, &c."

"[Signed] JNO. R. GRYMES, for Plaintiffs"

And on the same day and year aforesaid, to-wit, on 22 April, 1842, the following agreement was filed:

"Douglas v. C. Ford et al."

"Circuit Court of the United States, Eastern District of Louisiana:"

"It is agreed that this case may be set down for argument on the matters of law arising on the petition and answer, as on an exception to the answer, and that if the judgment of the court on the matters of law should be for the defendant, the plaintiffs may join issue on the facts, and the testimony taken in the usual manner. The plaintiffs to be at liberty at any time before hearing, to file special exceptions in writing."

"[Signed] JNO. R. GRYMES, for Plaintiffs"

On 22 April, 1843, the cause came on for trial upon the plaintiffs' exceptions to the answer of the defendant, and on the 24th the following order of court was entered of record:

"Monday, April 24, 1843"

"The court met pursuant to adjournment. Present, the Honorable John McKinley, Presiding Judge; the Honorable Theodore H. McCaleb, district Judge."

"Christopher Douglas et al v. Christopher Ford et al."

"The consideration of exception filed in this case to the answer of the defendant was this day resumed before the court, the complainants not appearing either in person or by his solicitor, and F. Houston, Esq., for the defendant. Whereupon, the arguments of counsel being closed, it is ordered, adjudged, and decreed by the

Page 46 U. S. 147

court that the exception of the complainants to defendants' answer be sustained, and that the defendant answer over."

"Archibald Douglas v. Christopher Ford et al."

"The defendant, Christopher Ford, by his counsel, declines to answer further in this case the bill of the plaintiffs, relying and insisting on the sufficiency of the ample and conclusive answer filed by him in this cause and the utterly null and void character of the title set up by said plaintiffs, apparent on their said bill, and the record of the mortuary proceedings of the succession of the said James S. Douglas deceased. The defendant having declined to answer further in this case and to submit it to the court to render such final decree in the case as may appear to them to be proper, it is therefore ordered, adjudged, and decreed that the injunction heretofore awarded in this case be and the same is made perpetual, and it is further ordered, adjudged, and decreed that the plaintiffs recover the costs of suit, without prejudice to the right of the defendant to any action he may think proper."

From this decree, Ford appealed to this Court. chanrobles.com-red

Page 46 U. S. 163


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