Massingill et al. v. Downs. Supreme Court of the State which shall impair it, under the twenty-fifth section of the Judiciary Act. *It is contended that the lien in Mississippi exists by the statute of the State, and that under the thirty[*767 fourth section of the Judiciary Act of 1789, it is a rule of property, and that it is consequently a rule of decision for the courts of the United States, and that the process act of 1828 has no bearing upon the question. The above section provides that "the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decisions in trials at common law, in the courts of the United States, in cases where they apply." No State statute is of more frequent application in the federal courts than the above section; and it has often been held that the settled construction of a State statute by its supreme court is considered as a part of the statute. And the statute, as thus expounded, is regarded as a rule of decision in the courts of the United States where it applies, "except where the Constitution or acts of Congress otherwise provide." The thirty-fourth section has never been considered as an act to regulate process. And it is argued that a statutory lien, being a rule of property, is applied to judgments in the Circuit Courts, under this section, without being influenced, in any degree, by the process act. We have seen that, where there is no statutory lien, it is created by issuing and delivering to the sheriff an execution, which authorizes the sale or extension of the real estate of the defendant. In those States, it is the process authorized by the judgment which creates the lien; and in such cases we necessarily look to the nature of the process, and the extent of its operation, to determine the lien. It must act upon the land of the defendant, and consequently the land must lie within the jurisdiction of the court. What is a judgment lien? In the argument, it was compared to a mortgage. "A mortgage is often called a lien for à debt, but it is something more. It is a transfer of the property itself as security for the debt. This is true in law and in equity." Conard v. The Atlantic Insurance Company, 1 Pet., 441. A judgment lien on land constitutes no property or right in the land itself. "It only confers a right to levy on the same, to the exclusion of other adverse interests subsequent to the judgment; and when the levy is 1 CITED. Leffingwell v. Warren, 2 Black, 603. Massingill et al. v. Downs. actually made on the same, the title of the creditor for this purpose relates back to the time of the judgment, to cut out intermediate encumbrances."1 Subject to this charge, the defendant may convey the land. "A judgment creditor has *768] no jus in re, but *a mere power to make his general lien effectual, by following up the steps of the law." What law? The law which authorizes the judgment, and the issuing of the process through which means the judgment may be satisfied. A failure to do this releases the charge on the property. Id. The lien, if not an effect of the judgment, is inseparably connected with it. And this is the case, whether the lien was created by the judgment and execution, or by statute. And in either case, where the right has attached in the courts of the United States, a State has no power, by legislation or otherwise, to modify or impair it. Retrospective laws of a remedial character may be passed; but no legislative act can change the rights and liabilities of parties, which have been established by a solemn judgment. This court therefore direct that it be certified to the Circuit Court, that the right of lien claimed by the plaintiffs under the judgment is paramount to that of the defendant claimed under the mortgage. ORDER. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and on the point or question on which the judges of the said Circuit Court were opposed in opinion, and which was certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this court, that the right of lien claimed by the plaintiffs under the judgment it paramount to that of the defendant claimed under the mortgage; whereupon it is now here ordered and adjudged by this court, that it be so certified to the said Circuit Court. 1 FOLLOWED. Ward v. CITED. lain, 2 Black, 437. Chamber- Pierce, 7 Wall., 217; Baker v. Morton 806 Udell et al. v. Davidson. *GRANT B. UDELL AND JACOB MILLER, PLAINTIFFS IN ERROR, v. ALEXANDER B. DAVIDSON. [*769 The act of 1838, (5 Stat. at L., 251,) relating to preemption rights, provides, that "before any person claiming the benefit of this law shall have a patent for the land which he may claim, by having complied with its provisions. he shall make oath, &c., that he entered upon the land which he claims in his own right, and exclusively for his own use and benefit, and that he has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatever, by which the title which he might acquire from the government of the United States should enure to the use and benefit of any one except himself, or to convey or transfer the said land, or the title which he may acquire to the same, to any other person or persons whatever, at any subsequent time." Where a preemptioner sold his inchoate title, which passed ultimately into the hands of a trustee, and the trustee loaned money out of the trust fund to the preemptioner, in order to enable him to pay the government; and the title thus obtained from the United States was conveyed by the preemptioner to the trustee, without any reference to the trust; and the trustee was ordered by a State court to hold the property subject to the trust, he cannot remove the case to this court, by virtue of the twenty-fifth section of the Judiciary Act. There is no title, right, privilege, or exemption, under an act of Congress, set up by the party and decided against him by the State court. By his own showing, he has acquired no title from the United States.1 The allegation is, that a fraud was perpetrated upon the government, and another meditated upon the cestui que trust, both of which this court is called upon to maintain and carry out.2 The case is dismissed for want of jurisdiction. THIS case was brought up from the Supreme Court of the State of Illinois, by a writ of error issued under the twentyfifth section of the Judiciary Act. The facts in the case are sufficiently set forth in the opinion of the court. A motion to dismiss it, for want of jurisdiction, was made by Mr. J. Mason Campbell, which motion was sustained by him and opposed by Mr. Coxe. Mr. Chief Justice TANEY delivered the opinion of the court. A motion has been made to dismiss this case, for want of jurisdiction. It appears that a man by the name of Gregory had obtained, by residence on the land mentioned in the proceedings, a right of preemption, under the act of Congress of 1838. But, before he paid the price fixed by the government 1 CITED. Walworth v. Kneeland, 15 How., 353. 2 IN POINT. Henderson v. Tennessee, 10 How., 323. Udell et al. v. Davidson. in such cases, or made the entry, he sold his right to Miller, one of the plaintiffs in error. Miller afterwards conveyed to a man by the name of Joslyn, in secret trust for himself, and subject to his control. Subsequently to this conveyance, Joslyn, by the direction of Miller, conveyed to Udell, the other plaintiff in error, in trust to sell to the highest bidder. and apply the proceeds to the payment of the creditors of Miller, pro rata, if they were not sufficient to pay all demands. *Udell accepted the trust, and, after having done so, *770] made an agreement with Gregory, by which Gregory was to enter the land at the proper office, at the preemption price, and then convey to Udell in trust, for the benefit of Miller's creditors, reserving a small portion of the land to Gregory himself. Udell was to furnish the money to enable Gregory to make the entry. Under this agreement, Udell executed a release to Gregory of all his right to the land, in order to enable him to make the entry as preëmptioner, and at the same time took from him a note for a thousand dollars, which was to be given up if Gregory made the conveyance according to his agreement. The land was worth a thousand dollars. The government. price to the preemptioner was only two hundred dollars, which sum was advanced by Udell to Gregory. One hundred and fifty dollars of this money belonged to the creditors of Miller, and was so applied at his request, and upon his statement that this application would be for the interest of his creditors. The remaining fifty was advanced by Udell, to be repaid out of the proceeds of the land when sold. But it does not appear that the defendant in error, or indeed any of Miller's creditors, sanctioned this transaction at the time, or had knowledge of this application of the trust funds. With the money thus obtained, Gregory made the entry, and then executed a deed to Udell. This deed, upon the face of it, is absolute, and contains no trust for the creditors. After having thus obtained a conveyance, Udell refused to execute the trust, and therefore the defendant in error, as one of the creditors of Miller, in behalf of himself and the other creditors, filed a bill in chancery, setting out more at large the facts above stated, and praying that the land might be sold for their benefit, in pursuance of the trust. The plaintiffs in error demurred to the bill, assigning various causes of demurrer, and, among others, that the transaction with Gregory, by which Udell obtained a conveyance, was in violation of the act of 1838. The chancery court, upon the hearing, decided that the Udell et al. v. Davidson. land in the hands of Udell was chargeable with the trust, and directed it to be sold, and the proceeds to be applied accordingly. This decree was affirmed in the Supreme Court of the State, and the present writ of error has been presented upon that judgment. It is unnecessary to notice any of the various causes of demurrer assigned by the plaintiffs in error, except that which relies on the provisions of the act of 1838. For this being a writ of error to a State court, we have no right to revise its decision upon any of the other causes assigned, and the only question before this court is, [*771 whether any title, right, privilege, or exemption, claimed by the plaintiffs in error in the State court under this act of Congress, was drawn in question and decided against them. They do not claim that Udell obtained a valid title by the entry made by Gregory, and his subsequent conveyance to Udell. And if their defence had been placed on that ground, it would not have given jurisdiction to this court, because the proceeding to charge it with a trust created by contract would have been no impeachment of the grant made by the United States. They defend themselves upon the ground, that the transaction between them and Gregory, by which the entry was made under a previous contract to convey, was a violation of the act of 1838. This is undoubtedly true; for the act requires the party who claims the right of preemption by residence to make oath that he has not contracted to sell or transfer the land to any other person. And he is not permitted to purchase at the low price at which the person entitled to preemption is allowed to buy, until this oath is taken and filed with the register of the land-office. And if he swears falsely, he is liable to an indictment for perjury, and forfeits all title to the land, and deeds made by him convey no title, unless they are made to a bonâ fide purchaser without notice. The plaintiffs in error admit that they participated in the fraud, and consequently Udell, upon their own showing, has acquired no right to the land under the act of Congress on which he relies. They do not claim that he obtained a valid title under the law, but insist that the transaction was against its policy, and in violation of its principles. What right or privilege does he then claim under this act of Congress? It is this. He not only admits, but insists, that, by a fraud upon the government, he has obtained a deed to himself for this land, and that he, being trustee for the creditors of Miller, used the money which belonged to his cestui que trusts to |