1. When, in a case in a state court, a right or immunity is set
up under and by virtue of a judgment of a court of the United
States and the decision is against such right or immunity, a case
is presented for removal and review by writ of error to the Supreme
Court of the United States under the Act of February 5, 1867.
2. In such a case, the Supreme Court will examine and inquire
whether or not due validity and effect have been accorded to the
judgment of the federal court, and if they have not and the right
or immunity claimed has been thereby lost, it will reverse the
judgment of the state court.
3. Whether due validity and effect have or have not been
accorded to the judgment of the federal court will depend on the
circumstances of the case. If jurisdiction of the case was acquired
only by reason of the citizenship of the parties, and the state law
alone was administered, then only such validity and effect can be
claimed for the judgment as would be due to a judgment of the state
courts under like circumstances.
4. Judgment was rendered by the Circuit Court of the United
States for Louisiana on a vendor's privilege and mortgage,
declaring it to be the first lien and privilege on the land, and
the marshal sold the property clear of all prior liens, and the
mortgagee purchased, and paid into court for the benefit of
subsequent liens, the surplus of his bid beyond the amount of his
own debt. This judgment and sale were set up by way of defense to a
suit brought in the state court by another mortgagee, who claimed
priority to the first mortgage and who had not been made a party to
the suit in the circuit court. The state court held that the
plaintiff was not bound by the former judgment on the question of
priority, not being a party to the suit. The case was brought to
the Supreme Court of the United States by writ of error, and this
Court held that the state court did not refuse to accord due force
and effect to the judgment, that such a judgment in the state
courts would not be conclusive on the point in question, and the
judgment of the circuit court could not have any greater force or
effect than judgments in the state courts.
Page 88 U. S. 131
Pierre Sauve, of the City of New Orleans, being indebted to one
Rochereau of the same place in the sum of $35,000, executed on the
26th of February, 1858, an authentic act of mortgage to him before
a notary public for the security of the debt upon a sugar
plantation in Louisiana above New Orleans, with all the farming
utensils, machinery, cattle, and slaves belonging thereto. The
mortgage, shortly after its execution, was duly recorded in the
proper office of the parish.
On the 15th of March, 1866, Rochereau obtained judgment against
Sauve in the Sixth District Court of New Orleans for the debt with
interest and costs, with a recognition of the special mortgage.
On the 7th of June, 1866, Rochereau commenced an action in the
same court against Edward Dupasseur by a petition setting forth the
said judgment and the act of mortgage, and the failure of Sauve to
pay the same, and alleging that Dupasseur had taken possession of
the plantation as owner thereof, and charging that the same was
bound for the debt, and that Dupasseur was bound either to pay the
debt or to give up the plantation, and praying process and decree
accordingly.
Dupasseur, in his answer, set up the following defense:
"That he purchased the property described in the plaintiff's
petition at a sale made by the marshal of the United States, in
virtue of an execution issued on a judgment rendered by the Circuit
Court of the United States for the Eastern District of Louisiana,
in the case of
Edward Dupasseur v. Pierre Sauve, free of all
mortgages and encumbrances, and especially from the alleged
mortgage of the plaintiff; that the marshal's sale was made in
virtue of a judgment based on and recognizing the existence of a
superior privilege and special mortgage to that claimed by the said
plaintiff, and that the whole of the proceeds of said sale was
absorbed to satisfy the judgment in favor of this respondent,
except $15,046, which are in the said marshal's hands, subject to
the payment,
pro tanto, of the plaintiff's mortgage. "
Page 88 U. S. 132
The record of the judgment and proceedings in the United States
circuit court, together with execution and sheriff's deed to
Dupasseur and also the original act of mortgage on which the
proceedings were founded, were given in evidence. From these it
appeared that Sauve purchased the plantation in question from one
Jacobs in June, 1852; that he paid part cash, and secured the
balance by five notes payable respectively in one, two, three,
four, and five years, and that the payment of the notes was secured
by a reservation of the vendor's lien in the act of sale by way of
special mortgage, with a covenant not to alien, &c., which act
was duly recorded as a special mortgage in the proper office in
1852,
but was not reinscribed within ten years, and not until
1865, it being alleged and proof being offered to show that it
was impossible, on account of the prevalence of the war, to have
the reinscription made within the proper time. The last note of
$29,000 was not paid, and suit was brought upon it against Sauve by
Jacobs, the then holder, in October, 1858, in the Third Judicial
District Court of Louisiana for Jefferson Parish, and on the 21st
of November, 1859, judgment was rendered for the amount,
recognizing priority of the mortgage on the plantation, and an
order made for paying the money into court. On the 5th of April,
1861, Sauve borrowed $37,011 of Dupasseur, the defendant, to pay
this judgment, and gave him a new note for that amount, and
Dupasseur was, by a notarial act, subrogated to the rights of
Jacobs in the judgment and mortgage.
On the 1st of December, 1863, Dupasseur & Co., citizens of
France, in right of Dupasseur, filed a petition in the circuit
court of the United States for a sequestration of the crops, that
Sauve might be cited to appear and answer, and for judgment for
$37,011 (the amount of the previous judgment), with interest and
costs, to be paid by right of special mortgage and with vendor's
lien and privilege, before all other creditors, and for sale,
&c.
No one was made a party to this suit except Pierre
Sauve. On the 23d of February, 1865, judgment was rendered in
this case, to the effect that Dupasseur recover from Sauve the
amount sued for, with vendor's
Page 88 U. S. 133
lien and privilege upon the plantation in question, and an
execution was issued thereon by virtue of which the marshal, on the
5th of May, 1866, sold the property to Dupasseur for $64,151, being
$15,046 more than sufficient to satisfy his claim. The balance was
paid to the marshal, and by him paid into the circuit court of the
United States, to be disposed of according to law.
In the suit first abovementioned -- the one brought in the Sixth
District Court of New Orleans by Rochereau against Dupasseur, and
to which Dupasseur set up the defense just abovementioned --
judgment was finally given for Rochereau on the 28th of January,
1868, and was affirmed by the Supreme Court of Louisiana on the
28th of April, 1868. The judgment of the supreme court was now
brought here by the present writ of error. Dupasseur, the now
plaintiff in error, alleging as a ground of bringing the case here
that the state court decided against the validity of a judicial
decision in his favor made by the circuit court of the United
States on the very question at issue in this action, which decision
was set up and relied on by him in his defense, and therefore that
the case came within the terms of the second section of the Act of
February 5, 1867 [
Footnote 1]
(section 709, Revised Statutes of the United States), replacing the
twentyfifth section of the Judiciary Act, [
Footnote 2] which enacts among other things that a writ
of error from this Court will lie to the highest court of the state
in which a decision in the suit could be had --
"Where any title, right, privilege, or immunity is claimed under
the Constitution, or any treaty or statute of or commission held,
or
authority exercised under the United States, and the
decision is against the title, right, privilege, or immunity
specially set up or claimed under such Constitution, treaty,
statute, commission or authority."
Two questions were thus raised by Dupasseur in this Court:
Page 88 U. S. 134
1st. Whether this Court had jurisdiction under the act of 1867,
already mentioned, to hear the case?
2d. Did the state court refuse to give validity and effect to
the judgment of the circuit court of the United States in favor of
Dupasseur?
MR. JUSTICE BRADLEY delivered the opinion of the Court.
Where a state court refuses to give effect to the judgment of a
court of the United States rendered upon the point in dispute, and
with jurisdiction of the case and the parties, a question is
undoubtedly raised which, under the act of 1867, may be brought to
this Court for revision. The case would be one in which a title or
right is claimed under an authority exercised under the United
States and the decision is against the title or right so set up. It
would thus be a case arising under the laws of the United States
establishing the circuit court and vesting it with jurisdiction,
and hence it would be within the judicial power of the United
States as defined by the Constitution, and it is clearly within the
chart of appellate power given to this Court over cases arising in
and decided by the state courts.
The refusal by the courts of one state to give effect to the
decisions of the courts of another state is an infringement of a
different article of the Constitution, to-wit, the first section of
article four, and the right to bring such a case before us by writ
of error under the twentyfifth section of the Judiciary Act, or the
act of 1867, is based on the refusal of the state court to give
validity and effect to the right claimed under that article and
section.
In either case, therefore, whether the validity or due effect of
a judgment of the state court or that of a judgment of a United
States court is disallowed by a state court, the Constitution and
laws furnish redress by a final appeal to this Court.
Page 88 U. S. 135
We cannot hesitate, therefore, as to our jurisdiction to hear
the case.
The question then arises did the Supreme Court of Louisiana, in
deciding against the claim of Dupasseur, refuse, as the defendant
charged, to give proper validity and effect to the judgment of the
circuit court of the United States and decide against such validity
and effect?
The only effect that can be justly claimed for the judgment in
the circuit court of the United States, is such as would belong to
judgments of the state courts rendered under similar circumstances.
Dupasseur & Co. were citizens of France, and brought the suit
in the circuit court of the United States as such citizens, and
consequently that court, deriving its jurisdiction solely from the
citizenship of the parties, was in the exercise of jurisdiction to
administer the laws of the state, and its proceedings were had in
accordance with the forms and course of proceedings in the state
courts. It is apparent, therefore, that no higher sanctity or
effect can be claimed for the judgment of the circuit court of the
United States rendered in such a case under such circumstances than
is due to the judgments of the state courts in a like case and
under similar circumstances. If by the laws of the state, a
judgment like that rendered by the circuit court would have had a
binding effect as against Rochereau if it had been rendered in a
state court, then it should have the same effect being rendered by
the circuit court. If such effect is not conceded to it, but is
refused, then due validity and effect are not given to it, and a
case is made for the interposition of the power of reversal
conferred upon this Court.
We are bound to inquire, therefore, whether the judgment of the
circuit court thus brought in question would have had the effect of
binding and concluding Rochereau if it had been rendered in a state
court. We have examined this question with some care, and have come
to the conclusion that it would not.
The same general rule of law and justice prevails in Louisiana
as elsewhere, to the effect that no persons are bound
Page 88 U. S. 136
by a judgment or decree except those who are parties to it and
have had an opportunity of presenting their rights. The only
apparent exception to this rule in general is the effect of a
proceeding
in rem, which from the necessity of the case is
binding on all persons. This exception is only apparent, for indeed
in that case all persons having any interest in the thing are
deemed parties, and have the right to intervene
pro interesse
suo, and if after the lawful publications of notice have been
made they fail to do so, they are considered as having acquiesced
in the exercise of the jurisdiction. A further exception, in
Louisiana, arises from the pact
de non alienando in
mortgages, which dispenses with the necessity of making subsequent
grantees or mortgagees parties in a proceeding to enforce payment
of the mortgage. They are to take notice at their peril.
In this case, Rochereau was not made a party to the suit of
Dupasseur in the circuit court of the United States, and the only
questions remaining, therefore, are whether that was a proceeding
in rem or whether Rochereau was a subsequent mortgagee to
Dupasseur?
The fact that a sequestration was issued does not make the
proceeding one
in rem, as that was a mere ancillary
process for preserving the movables and crops on the mortgaged
property from waste and spoliation. It did not in the slightest
degree change the character of the suit. And in truth it was never
executed, as the return of the marshal shows. The question then
recurs as to the character of the suit itself. It was an action
brought against Sauve on the judgment obtained against him by
Jacobs in the District Court for Jefferson Parish, which judgment
had been, in effect, assigned to Dupasseur. The petition prayed,
besides a sequestration of the crops, &c., that Sauve might be
cited to appear and answer; that judgment might be rendered in
favor of the petitioner for the sum of $37,011.99, [
Footnote 3] and interest and costs to be paid
by right of special mortgage and with vendor's lien and privilege
upon the plantation, slaves,
Page 88 U. S. 137
stock, &c., and that the same might be sold for cash for an
amount sufficient to pay said judgment by preference, right of
special mortgage and vendor's lien and privilege, and before all
other creditors. This was therefore nothing but the ordinary
hypothecary action brought to enforce payment of a special
mortgage. It is called a real action in the Code of Practice,
because it seeks the sale of particular property liable to the
plaintiff's mortgage. But this does not necessarily make it a
proceeding
in rem in the sense of which we have spoken. It
is brought against the person in possession as well as the
property, and the creditor can only seize and sell such property,
after having obtained judgment against the debtor in the usual
form. [
Footnote 4]
The case is therefore clearly not a proceeding
in rem
properly so called.
Then was Rochereau a subsequent mortgagee to Dupasseur? Was the
latter entitled to priority? If so, Rochereau would be bound by the
judgment though not made a party. But he contends that his is the
prior lien, and not the subsequent one.
Now we can find nothing in the Code of Practice or in the
judicial decisions of the State of Louisiana which goes to show
that Rochereau or any other person claiming a prior lien to that of
Dupasseur on the property in question would be concluded by this
judgment and forever estopped from showing that truth. Unless there
is something peculiar in the Louisiana laws which makes the effect
of the judgment different from what it would be under other systems
of jurisprudence, prior mortgagees and those having elder titles
not made parties to the suit cannot be affected by the
judgment.
Indeed, the appellant's counsel does not contend that prior
mortgagees, or those having prior liens or privileges, were
affected, but he insists that subsequent mortgagees are affected,
and are entitled only to the surplus proceeds which have been paid
into court, and that it was not necessary to
Page 88 U. S. 138
make them parties because of the pact
de non alienando,
and he insists that Rochereau was a subsequent mortgagee.
Now that is the very point in dispute. Rochereau insists that by
the noninscription of the Jacobs mortgage within ten years, it lost
its rank and became the subsequent, and not the prior, mortgage.
Grant that Rochereau was the subsequent mortgagee and all that the
appellant claims would necessarily follow. But that point is not
granted; on the contrary, it is the very matter in dispute, and on
this vital point we think that Rochereau was not concluded by the
judgment of the circuit court, because he was not a party to it.
Therefore, the state court, in not regarding the decision of the
circuit court as decisive of that question, did not refuse to that
decision its due and legal effect.
The sections of the Code of Practice which direct the mode of
proceeding at sheriff's sales under mortgage or other liens do not
affect the question. They simply require, in substance, that the
sheriff shall possess himself of the recorder's certificate of the
various encumbrances on the property, and shall sell subject to all
liens and privileges prior to that under which the sale is made,
and if the property is bid off for more than those prior liens and
privileges, the purchaser only pays the balance and takes the
property subject to them. This shows that prior liens are not to be
affected or disturbed. If the sheriff by a mistake of law or fact
regards a prior lien as a subsequent one, surely his mistake cannot
destroy or postpone the lien which he thus fails to assign to its
proper place.
Judgment affirmed.
[
Footnote 1]
14 Stat. at Large 385.
[
Footnote 2]
See the section, 20 Wall. 592-593, righthand
column.
[
Footnote 3]
The amount of the previous judgment.
[
Footnote 4]
Code of Practice, article 64.
