1. Where personal property is seized and sold under an
attachment or other writ issuing from a court of the state where
the property is, the question of the liability of the property to
be sold under such writ must be determined by the law of that
state, notwithstanding the domicil of all the claimants to the
property may be in another state.
2. In a suit in any other state growing out of such seizure and
sale, the effect of the proceedings by which it was sold, with
title to the property, must be determined by the law of the state
where those proceedings were had.
3. The refusal of the state court in which such suit may be
tried to give
Page 72 U. S. 308
to the proceedings of the court under which the property was
sold the same effect in their operation upon the title as they have
by law and usage in the state where they took place constitutes a
proper case for review in this Court under the twenty-fifth section
of the Judiciary Act.
The Constitution of the United States declares (Section 1,
Article IV) that
full faith and credit shall be given in
each state to the public acts, records,
and judicial
proceedings of every other state and that Congress may by
general laws prescribe the manner in which such acts, records, and
proceedings shall be proved, and the
effect thereof.
Under the power here conferred, Congress, by act of 1790,
[
Footnote 1] provides that
records, authenticated in a way which it prescribes, shall "have
such faith and credit given to them in every other court of the
United States, as they have by law or usage in the court from which
they are taken."
With this provision of the Constitution and this law in force,
Bates, being the owner of certain iron safes at Chicago, in the
State of Illinois, on the 3d day of November, 1857, executed and
delivered, in the State of New York, to Van Buskirk and others, a
chattel mortgage of them. On the 5th day of the same month, Green
caused to be levied on the same safes a writ of attachment, sued by
him out of the proper court in Illinois against the property of
Bates. The attachment suit proceeded to judgment, and the safes
were sold in satisfaction of Green's debt. Van Buskirk, Green, and
Bates, were all citizens of New York. Green's attachment was levied
on the safes as the property of Bates, before the possession was
delivered to Van Buskirk and before the mortgage from Bates to him
was recorded and before notice of its existence.
Van Buskirk afterwards sued Green in the New York courts for the
value of the safes thus sold under his attachment, and Green
pleaded the proceeding in the court of Illinois in bar of the
action. In this suit thus brought by him
Page 72 U. S. 309
in the New York courts, Van Buskirk obtained judgment, and the
judgment was affirmed in the highest court of the State of New
York. From this affirmance Green took a writ of error to this
Court, assuming the case of fall within the twenty-fifth section of
the Judiciary Act, which gives such writ in any case wherein is
drawn in question a clause of the Constitution of the United States
and the decision is against the title, right, or privilege
specially set up. His assumption was that the faith and credit
which the judicial proceedings in the courts of the State of
Illinois had by law and usage in that state, were denied to them by
the decision of the courts of New York, and that in such denial,
those courts decided against a right claimed by him under the
above-mentioned Section 1, Article IV, of the Constitution, and the
act of Congress of May 26, 1790, on the subject of it.
Page 72 U. S. 310
MR. JUSTICE MILLER delivered the opinion of the Court.
The section of the Constitution discussed in this case declares
that
"Full faith and credit shall be given in each state to the
public acts, records, and judicial proceedings of every other
state. And that Congress may by general laws prescribe the manner
in which such acts, records and proceedings shall be proved and the
effect thereof."
The act of 1790 was intended to be an exercise of the power
conferred upon Congress by this section. In the leading case of
Mills v. Duryee, [
Footnote
2] this Court held that the act in question did declare the
effect of such judicial records and that it should be the same in
other states as that in which the proceedings were had. In the case
of
Christmas v. Russell, [
Footnote 3] decided at the present term of the Court, we
have reaffirmed this doctrine and have further declared that no
state can impair the effect thus to be given to judicial
proceedings in her sister state by a statute of limitation intended
to operate on demands which may have passed into judgment by such
proceedings as though no such judgment had been rendered.
The record before us contains the pleadings in the case, the
facts found by the court, and the conclusions of law arising
thereon. And notwithstanding the inverted manner in
Page 72 U. S. 311
which the court has stated its legal conclusions, it seems clear
that it did pass upon the effect of the judicial proceedings in
Illinois upon the title of the property in contest. The case is not
varied by declaring that the mortgage made and delivered in New
York
overreached the subsequent attachment in Illinois.
According to the view taken by that court, Van Buskirk, the
plaintiff, had title to the property under the laws of New York by
virtue of his mortgage, and the question to be decided was whether
the proceedings in Illinois were paramount in their effect upon the
title to the New York mortgage.
It is said that Van Buskirk being no party to the proceedings in
Illinois was not bound by them, but was at liberty to assert his
claim to the property in any forum that might be open to him, and,
strictly speaking, this is true. He was not bound by way of
estoppel, as he would have been if he had appeared and submitted
his claim, and contested the proceedings in attachment. He has a
right to set up any title to the property which is superior to that
conferred by the attachment proceedings, and he has the further
right to show
that the property was not liable to the
attachment -- a right from which he would have been barred if
he had been a party to that suit. And this question of the
liability of the property in controversy to that attachment is the
question which was raised by the suit in New York, and which was
there decided. That court said that this question must be decided
by the laws of the State of New York, because that was the domicil
of the owner at the time the conflicting claims to the property
originated.
We are of opinion that the question is to be decided by the
effect given by the laws of Illinois, where the property was
situated, to the proceedings in the courts of that state, under
which it was sold.
There is no little conflict of authority on the general question
as to how far the transfer of personal property by assignment or
sale, made in the country of the domicil of the owner, will be held
to be valid in the courts of the country where the property is
situated when these are in different sovereignties.
Page 72 U. S. 312
The learned author of the Commentaries on the Conflict of Laws
has discussed the subject with his usual exhaustive research. And
it may be conceded that, as a question of comity, the weight of his
authority is in favor of the proposition that such transfers will
generally be respected by the courts of the country where the
property is located, although the mode of transfer may be different
from that prescribed by the local law. The courts of Vermont and
Louisiana, which have given this question the fullest
consideration, have, however, either decided adversely to this
doctrine or essentially modified it. [
Footnote 4] Such also seems to have been the view of the
Supreme Court of Massachusetts. [
Footnote 5]
But after all, this is a mere principle of comity between the
courts, which must give way when the statutes of the country where
property is situated, or the established policy of its laws
prescribe to its courts a different rule. The learned commentator,
already referred to, in speaking of the law in Louisiana which
gives paramount title to an attaching creditor over a transfer made
in another state, which is the domicil of the owner of the
property, says:
"No one can seriously doubt that it is competent for any state
to adopt such a rule in its own legislation, since it has perfect
jurisdiction over all property, personal as well as real, within
its territorial limits. Nor can such a rule, made for the benefit
of innocent purchasers and creditors, be deemed justly open to the
reproach of being founded in a narrow or a selfish policy.
[
Footnote 6]"
Again, he says:
"Every nation, having a right to dispose of all the property
actually situated within it, has (as has been often said) a right
to protect itself and its citizens against the inequalities of
foreign laws, which are injurious to their interests."
Chancellor Kent in commenting on a kindred subject,
Page 72 U. S. 313
namely, the law of contracts, remarks: [
Footnote 7]
"But, on this subject of conflicting laws, it may be generally
observed that there is a stubborn principle of jurisprudence that
will often intervene and act with controlling efficacy. This
principle is that where the
lex loci contractus and the
lex fori, as to conflicting rights acquired in each, come
in direct collision, the comity of nations must yield to the
positive law of the land."
In the case of
Milne v. Moreton, [
Footnote 8] the Supreme Court of Pennsylvania
says, that
"every country has a right of regulating the transfer of all
personal property within its territory, but when no positive
regulation exists, the owner transfers it at his pleasure."
The Louisiana court, in a leading case on this subject, gives,
in the following language, a clear statement of the foundation of
this principle:
"The municipal laws of a country have no force beyond its
territorial limits, and when another government permits these to be
carried into effect within her jurisdiction, she does so upon a
principle of comity. In doing so, care must be taken that no injury
is inflicted on her own citizens, otherwise justice would be
sacrificed to comity. . . . If a person sends his property within a
jurisdiction different from that where he resides, he impliedly
submits it to the rules and regulations in force in the country
where he places it."
Apart from the question of authority, let us look at some of the
consequences of the doctrine held by the court of New York.
If the judgment rendered against the plaintiff in error is well
founded, then the sheriff who served the writ of attachment, the
one who sold the property on execution, any person holding it in
custody pending the attachment proceeding, the purchaser at the
sale, and all who have since exercised control over it, are equally
liable.
If the judgment in the State of Illinois, while it protects all
such persons against a suit in that state, is no protection
Page 72 U. S. 314
anywhere else, it follows that in every case where personal
property has been seized under attachment, or execution against a
nonresident debtor, the officer whose duty it was to seize it, and
any other person having any of the relations above described to the
proceeding, may be sued in any other state, and subjected to heavy
damages by reason of secret transfers of which they could know
nothing, and which were of no force in the jurisdiction where the
proceedings were had, and where the property was located.
Another consequence is that the debtor of a nonresident may be
sued by garnishee process, or by foreign attachment as it is
sometimes called, and be compelled to pay the debt to someone
having a demand against his creditors; but if he can be caught in
some other state, he may be made to pay the debt again to some
person who had an assignment of it, of which he was ignorant when
he was attached.
The article of the Constitution, and the act of Congress relied
on by the plaintiff in error, if not expressly designed for such
cases as these, find in them occasions for their most beneficent
operation.
We do not here decide that the proceedings in the State of
Illinois have there the effect which plaintiff claims for them;
because that must remain to be decided after argument on the merits
of the case. But we hold that the effect which these proceedings
have there, by the law and usage of that state, was a question
necessarily decided by the New York courts, and that it was decided
against the claim set up by plaintiff in error under the
constitutional provision and statute referred to, and that the case
is therefore properly here for review.
Motion to dismiss overruled.
[
Footnote 1]
May 26; 1 Stat. at Large 122.
[
Footnote 2]
11 U. S. 7 Cranch
481.
[
Footnote 3]
Supra, last preceding case, p. <|72 U.S.
290|>290.
[
Footnote 4]
Taylor v. Boardman, 25 Vt. 589;
Ward v. Morrison,
id. 593;
Emmerson v. Partridge, 27 Vt. 8;
Oliver
v. Townes, 14 Martin's Louisiana 93;
Norris v.
Mumford, 4
id. 20.
[
Footnote 5]
Lanfear v. Sumner, 17 Mass. 110.
[
Footnote 6]
Story on the Conflict of Laws ยง 390.
[
Footnote 7]
2 Commentaries 599.
[
Footnote 8]
6 Binney 361.
MR. JUSTICE NELSON, with whom concurred MR. JUSTICE SWAYNE,
dissenting.
I am unable to concur in the opinion that has just been
delivered. The litigation is one of the most common occurrence
growing out of the business affairs of life. It presents
Page 72 U. S. 315
the case of a race of diligence among creditors after the
property of a failing debtor to get the first security for the
payment of their debts. There is no question here as to the
bona fides of the creditors. The simple point between them
is as to which party in the race acquired the better title to the
property. All the parties, debtor and creditors, were citizens and
residents of the state of New York. The property was in Chicago,
Illinois, consisting of iron safes.
In the race of diligence, the defendants here and plaintiffs
below, Van Buskirk and others, obtained from Bates, the debtor, on
the 3d of November, an assignment of the property as security for
their debt. It was executed at Troy, New York. But before the agent
reached Chicago to take actual possession, Tillinghast &
Warren, the other creditors, on the 5th of the month, two days
after the assignment, instituted proceedings in a court in Illinois
against Bates, the debtor, and attached the safes, subsequently
obtained a judgment by default, and sold them on execution.
The present suit was instituted by Van Buskirk and others
against Tillinghast & Warren, the attaching creditors, claiming
title to the property under and by virtue of their prior
assignment. As the two classes of creditors were equally honest,
the only question, as we have said, would seem to be which had
obtained the better right to their debtor's property, and this
appears to have been the view taken by the judge and counsel in the
court below.
The trial before a jury was waived, and the case was heard
before the judge, who gives a statement of the facts. He found the
proceedings, in the attachment as set forth. The execution of the
assignment, that it was executed in good faith, and not fraudulent.
He then states his conclusions of law:
1. That the assignment was a legal and valid instrument, and
operated to transfer the property in the safes to the
assignees.
2. That by the laws of New York the title thus acquired
overreached the title by attachment, being prior in point of
Page 72 U. S. 316
time, though the attaching creditors had no notice of the sale
or assignment, and
3. That the laws of New York governed the case.
The defendants excepted to the rulings, and contended:
1. That the assignment was fraudulent and void on its face, and
conveyed no title to the plaintiffs against the attachment.
2. That the rights of the parties must be governed by the law of
the State of Illinois, and not by the law of the state of New York;
and
3. That the plaintiffs have shown no ownership or right of
possession to the safes superior to that of the defendants.
A judgment was entered for the plaintiffs, which was taken, on
this bill of exceptions, to the higher courts in the state, and was
affirmed. It is now here under the twenty-fifth section of the
Judiciary Act, and it is claimed that this Court has jurisdiction,
on the ground that the court below denied full faith, credit, and
effect to the Illinois judgment in the attachment proceedings. It
is only on this ground that this attachment can be maintained. We
have seen that no such point was made on the trial or ruled by the
court. These proceedings were in evidence without objection either
as to regularity or effect. It was conceded that the attachment
bound the goods from the time it was levied. Certainly no greater
effect could be given to it -- that is, whatever interest Bates,
the debtor, had in them at that time. This effect was not disputed.
But it was claimed, on the other side, that they had a prior right
to the property under the assignment made two days before the
levy.
Now it must be admitted that, as between Bates and the
assignees, they became vested with the title, and as the attachment
was subsequent, and would only reach the interest of Bates, it
would seem to follow that the assignees had the better title, and,
if this were all of the case, there could not be two opinions upon
it; the title under the attachment must fail. But it is not all,
for it is said that this prior assignment was ineffectual to
transfer the title to the property, and prevent the operation of
the attachment, for the reason that it
Page 72 U. S. 317
was fraudulent against creditors, and, being so fraudulent, the
seizure under the attachment gave the better title.
The question, therefore, that arose in the case, and the only
question, was as to the validity or invalidity of this assignment.
If valid, then the title of the safes passed out of Bates to the
assignees on the 3d November. If invalid, then it remained in him
quoad creditors till the 5th, when the attachment was
levied. Now, this question was one simply of law, and it turned
upon this, whether the assignment was to be governed by the law of
New York, where the instrument was made, and in which state all the
parties resided, and of which they were citizens, or by the law of
Illinois, the situs of the property. In New York the immediate
delivery of the possession, as is said, is not essential to the
validity of the assignment; in the State of Illinois it is. The
continuance in the possession by assignor or vendor after the
transfer of the title is regarded in that state as evidence of
fraud, and renders the instrument inoperative as against execution
or attaching creditors.
The court below decided that the instrument was to be governed
by the law of the state of New York, where it was made, and which
was the domicil of the parties. Now whether the court erred or not
in this decision is not the question, for this Court has no
jurisdiction to determine that. The question here is whether, in so
deciding, the court denied full faith, credit, and effect to the
judgment in Illinois. In other words, did the court, in holding
that the prior assignment was not fraudulent and void, but valid
and effectual to transfer the title, thereby discredit the Illinois
judgment? The answer to the question, I think, is obvious. These
assignees were not parties to the judgment. It could not bind them.
They were free, therefore, to set up and insist upon this prior
title to the property, and if there was nothing else in the case,
it is clear the junior attachment could not hold it. It became
necessary, therefore, for the attaching creditors to displace the
assignment, and this they attempted, by insisting that it was
fraudulent and void as not having been accompanied by possession,
and this they
Page 72 U. S. 318
were obliged to establish before the attachment could take
effect.
The assignment being prior in time, in the absence of fraud,
actual or constructive, the title passed to the assignees, and was
out of Bates, when the attachment was levied. This is familiar law.
The question in the case, therefore, and the one litigated in the
court below, was this question of fraud, upon which the validity of
the assignment depended, and the finding of which was necessary to
give a preference to the claim under the attachment. This question
was not only consistent with the full force and effect of the
attachment proceedings, but wholly independent of them.
I agree, if the attachment had been levied before the
assignment, and the court had given effect to this instrument over
the levy, it might be said that full faith and credit had not been
given to it; but, being posterior, these proceedings could not have
the effect
per se to displace the assignment as against a
stranger. Another element must first be shown -- namely fraud or
other defect in the instrument, to render it inoperative.
Mr. conclusion is that the regularity of the attachment
proceedings was not called in question in the court below, but, on
the contrary, full force and credit were given to them, and the
case should be dismissed for want of jurisdiction.