Melville Fuller

Name: Cooke v. Avery — Opinion of the Court
Author: Melville Fuller

Summary

“Cooke v. Avery — Opinion of the Court”, is a work by Melville Fuller. It explores elements such as the United States, lien and judgment.

Quotes from Cooke v. Avery — Opinion of the Court (Melville Fuller)

Melville Fuller, Cooke v. Avery — Opinion of the Court

“ Clearly, the right of a plaintiff to sue cannot depend upon the defense which a defendant may choose to set up, and as on the first trial defendants relied on the decision of a federal question to defeat the action, such a concession of the existence of a federal ingredient in the cause might fairly be held to bind them when they subsequently abandon it, and seek to oust the jurisdiction upon the ground that there could be no real dispute as to the applicable law. ”

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Source: Wikisource

Melville Fuller, Cooke v. Avery — Opinion of the Court

“ To what extent, if at all, these articles were adopted by the rules of the circuit court, and whether or not the lien could only be originated by compliance with the requisition as to the record and index of the abstract, was for the circuit court to determine, in the first instance. Judgments, by the common law, were not liens upon real estate, but the lien arose from the power to issue a writ of elegit, given by the statute of Westminster, (13 Edw. I. c. 18.) ”

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Source: Wikisource

Melville Fuller, Cooke v. Avery — Opinion of the Court

“ We are satisfied that the defendants were chargeable with notice of the judgment lien, and did not, as against the plaintiff, occupy the position of adverse possessors under a claim of title, made in good faith, prior to the deed of January 2, 1886. Moreover, no evidence was offered to prove the value of the land without regard to the improvements, an essential condition to the application of the statute. Cox v. Hart, supra. When and how far the remedy for valuable improvements may be sought in the courts of the United States, otherwise than in equity, we do not consider. ”

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Source: Wikisource

Melville Fuller, Cooke v. Avery — Opinion of the Court

“ Rep. 1030, it was ruled that it was necessary that the construction either of the constitution, or some law or treaty, should be directly involved in order to give jurisdiction, although for the purpose of the review of the judgments of state courts, under section 709 of the Revised Statutes, it would be enough if the right in question came from a commission held or authority exercised under the United States. ”

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Source: Wikisource

Melville Fuller, Cooke v. Avery — Opinion of the Court

“ Section 916 of the Revised Statutes is as follows: 'The party recovering a judgment in any common-law cause in any circuit or district court shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor, as are now provided in like causes by the laws of the state in which such court is held, or by any such laws hereinafter enacted which may be adopted by general rules of such circuit or district court ”

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Source: Wikisource

Melville Fuller, Cooke v. Avery — Opinion of the Court

“ There is a lack of definiteness in this offer, which, under the circumstances, probably did not commend it to the circuit court; for it did not appear therefrom that any of the improvements were made before the date of the deed, or exactly when, except that it was before Cooke obtained actual knowledge of the judgment lien.
In Elam v. Parkhill, 60 Tex. 581, it is said: 'To entitle a party to a recovery for the value of improvements, it is essential that he be a possessor in good faith. ”

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Source: Wikisource

Melville Fuller, Cooke v. Avery — Opinion of the Court

“ Downs, where the state statute made the judgment a lien upon the land of the debtor in the county wherein it was recovered, and required the judgment to be recorded in other counties in order to extend the lien on land therein, it was ruled that a judgment in the circuit court was a lien on the debtor's land in the district without such record ”

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Source: Wikisource

Melville Fuller, Cooke v. Avery — Opinion of the Court

“ Chenault, 48 Tex. 455, the title of the judgment was ' A. T. Chenault & Co. vs. Smith and Young,' and the judgment ordered that the plaintiffs recover of the defendants, but the names of neither plaintiffs nor defendants were given, while the execution recited that 'whereas, A. T. Chenault and John O. McGhee * * * recovered a judgment against Elial M. Smith and Hugh F. Young;' and the court held that the execucution sufficiently described the parties to the judgment. ”

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Source: Wikisource

Melville Fuller, Cooke v. Avery — Opinion of the Court

“ The rule seems to be well settled that in this statutory action, if the defendant pleads his title specially, he waives the general issue, and is confined to the defense thus specially pleaded. In Joyner v. ”

Melville Fuller

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