This is an appeal by the grantee in a deed of trust, from a decree of the circuit court of the United States for the Western district of Tennessee, in favor of a judgment creditor of the grantor. The undisputed facts of the case, as shown by the pleadings and the documentary evidence, are as follows: In January, 1878, the owners of two lots of land in the city of Memphis county of Shelby, and State of Tennessee, executed to R. C. Daniel a lease, thereof for the term of six years, at a certain rent, and with a provision that any improvements or machinery made or erected by the lessee might be removed by him at the end of the lease. Steers and Morse, under a contract with Daniel, erected upon the land a cotton-press, engine, boilers, and machinery; and on August 8, 1878, filed the original bill in this case against him, in the chancery court of Shelby county, to enforce a mechanic's lien, under the statutes of Tennessee, upon his leasehold interest in the land, and upon his interest in the press and machinery, and obtained a writ of attachment against the same. On June 6, 1878, A. H. H. Dawson duly recovered against Daniel two judgments at law, upon default, in the circuit court of the United States, amounting together to the sum of $5,629.91. At the same term, on June 13th, an application was made by Daniel to vacate each of those judgments, and was 'continued until the next term of the court, without prejudice to either party.' On July 5th writs of fieri facias upon both the judgments were issued by the clerk and delivered to the marshal. On July 9th the marshal, as appears by his indorsement thereon, levied each of these executions upon Daniel's interest in the land, (particularly described,) and upon all his interest 'in and to the chattel property in, about and upon the foregoing described lots and parcels of land, consisting of a Morse improved Tyler cotton compress, with engines, boilers, machinery, etc., with all appurtenances thereto belonging;' and afterwards published and posted, and served upon Daniel, as required by law, notices of a sale to be made on August 8th in pursuance of the levy. On August 5th the circuit judge sent to the clerk the following letter:
'MY DEAR SIR: I have been furnished by Messrs. Gantt & Patterson, attorneys for Mr. R. C. Daniel, with certified copies of the record in the suits of A. H. H. Dawson v. Daniel, pending in your court. From this, as I construe it, judgments by default were rendered at the last term, and then an application made to set aside said judgments and permit defendant to plead, which application was continued to next term of the court. This leaves these cases pending and undetermined. Yet Messrs. Gantt & Patterson, for their client, represent that executions have been issued and levied on Daniel's property. If this is so, the executions are without authority, and ought to be called in as improvidently issued. There is no final judgment on which they can rest. My suggestion is that you issue a paper to the marshal reciting the fact that executions were issued without authority, and request him to return the same unexecuted.
'I am, very truly, etc.,
JNO. BAXTER.
'BELL W. ETHERIDGE, Esq.
'U.S.C.ircuit Clerk, Memphis, Tenn.'
On August 7th the clerk delivered to the marshal a paper headed 'Circuit Court of the United States for the Western District of Tennessee,' with the names of the cases and their numbers on the docket, and the rest of which was as follows:
'To the United States Marshal, Western District of Tennessee:
'In accordance with the instructions of Judge BAXTER, communicated by letter, a copy of which is hereto attached, I notify you that the executions in the two above-named cases were issued without authority, and request you to return the same unexecuted. You will therefore act accordingly.
'Witness my signature, and the seal of said court, this, the seventh day of August, 1878.