1. A., B., and C. were residents and citizens of New York. A.
being indebted to both B. and C., and having certain chattels
personal in Illinois, mortgaged them to B. Two days afterwards, and
before the mortgage could be recorded in Illinois, or the property
delivered there, both record and delivery being necessary by the
laws of Illinois, though not by those of New York, to the validity
of the mortgage as against third parties, C. issued an attachment,
a proceeding
in rem, out of one of the courts of Illinois,
and, under its laws, in due form, levied on and sold the property.
B. did not make himself a party to this suit in attachment,
though
Page 74 U. S. 140
he had notice of it, and by the laws of Illinois, a right to
take defense to it, but after its termination brought suit in New
York against C. for taking and converting the chattels. C. pleaded
in bar the proceedings in attachment in Illinois. The New York
courts, holding that the only question was B.'s property in the
chattels on the day of the attachment; that the existence or
nonexistence of such property was to be decided by the law of the
domicile of the parties, to-wit, New York; and finally that by this
law the property was complete in B. on the execution of the
mortgage, adjudged, that the proceedings in attachment in Illinois
were not a bar. But
Held by this Court that by such judgment, the "full
faith and credit" required by the federal Constitution had not been
given in the State of New York to the judicial proceedings of the
State of Illinois, and that so the judgment below was
erroneous.
2. The fiction of law that the domicile of the owner draws to it
his personal estate wherever it may happen to be yields whenever,
for the purposes of justice, the actual
situs of the
property should be examined.
3. By the laws of Illinois, an attachment on personal property
there will take precedence of an unrecorded mortgage executed in
another state where record is not necessary, though the owner of
the chattels, the attaching creditor, and the mortgage creditor,
are all residents of such other state.
The Constitution of the United States declares that "full faith
and credit" shall be given in each state to the judicial
proceedings of every other state, and that Congress may prescribe
the manner in which such proceedings shall be proved and the effect
thereof. Congress, by act of 1790, did accordingly provide that
they should "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 these provisions in force, one Bates, who lived in Troy,
New York, and owned certain iron safes in Chicago, Illinois, in
order to secure an existing debt to Van Buskirk and others,
executed and delivered (in the State of New York), to them, on the
3d of November, 1857, a chattel mortgage on the safes. Two days
after this, one Green, also a creditor of Bates, sued out of the
proper court of Illinois a writ of attachment, caused it to be
levied on these safes, got
Page 74 U. S. 141
judgment in the attachment suit, and had the safes sold in
satisfaction of his debt. At the time of the levy of this
attachment the mortgage had not been recorded in Illinois; nor had
possession of the property been delivered under it; nor had the
attaching creditor notice of its existence. Green, Van Buskirk, and
Bates were citizens of New York.
It was admitted on the record that the proceedings in attachment
were regular and in conformity with the laws of Illinois; that the
cases of
Martin v. Dryden and
Burnell v.
Robertson, reported in the Illinois reports, [
Footnote 1] rightly explained those laws;
that Bates was the owner of the safes on the 3d of November, 1857,
and that Green was a
bona fide creditor of Bates. After
the levy of the attachment Green received notice of the mortgage,
and the claim under it, and Van Buskirk and the others, mortgagees,
were informed of the attachment; but they did not make themselves
parties to it and contest the right of Green to levy on the safes,
which they were authorized by the laws of Illinois to do.
By statutes of Illinois, [
Footnote 2]
any creditor can sue out a writ of
attachment against a nonresident debtor. Under this writ, the
officer takes possession of the debtor's property. If the debtor
cannot be served with process, he receives notice by publication,
and if he does not appear, the creditor, on proving his case, has
judgment by default, and execution is issued to sell the property
attached. These statutes further enact, [
Footnote 3] that mortgages of personal property are
void as against third persons, unless acknowledged and recorded,
and unless the property be delivered to and remain with the
mortgagee.
In this state of the law in Illinois, Van Buskirk sued Green in
one of the inferior courts of New York, for taking and converting
the safes, sold as already mentioned under the attachment. Green
pleaded in bar the attachment proceedings in Illinois. But the
court held that the law of New York was to govern the case, not the
law of Illinois, though the property was situated there, and that
by the law
Page 74 U. S. 142
of New York the title to the property passed on the execution
and delivery of the mortgage, and took precedence of the subsequent
attachment in Illinois. This judgment being affirmed in the highest
court of the State of New York, Green, assuming that the "faith and
credit" which the judicial proceedings in courts of Illinois had by
law and usage in that state, were denied to them by the decision
just mentioned, took a writ of error to this Court, conceiving the
case of fall within the 25th section of the Judiciary Act, which
gives a writ in cases where, in the highest state court, a clause
of the Constitution of the United States is drawn in question, and
the decision is against the right, title, or privilege specially
set up.
The case having got here, a motion was made in December Term
1866, to dismiss it for want of jurisdiction; the ground of the
motion having been, that the only defense set up in the state court
was, that the safes at the time of the seizure and sale belonged to
Bates, and that by such seizure and sale Green had acquired his
title; that thus the only issue tried and determined in the New
York court was the right of property and possession at the time of
the seizure. [
Footnote 4]
But this Court overruled the motion to dismiss, and held, that
while the question whether the proceedings in the Illinois court
had the effect which Green asserted for them, was one to be decided
after argument on the merits, yet that the effect which those
proceedings had there by law and usage of that state, was a
question necessarily decided by the New York court, and decided
against the claim set up by Green under the provision of the
Constitution quoted
ante on page <|74 U.S. 140|>140;
and that so the case was properly in this Court for review.
It was now here for such review; a review on merits.
Page 74 U. S. 145
MR. JUSTICE DAVIS delivered the opinion of the Court.
That the controversy in this case was substantially ended when
this Court refused [
Footnote 5]
to dismiss the writ of error for want of jurisdiction, is quite
manifest by the effort which the learned counsel for the defendants
in error now make, to escape the force of that decision.
The question raised on the motion to dismiss was, whether the
Supreme Court of New York, in this case, had decided against a
right which Green claimed under the Constitution, and an act of
Congress. If it had, then this Court had jurisdiction to entertain
the writ of error, otherwise not.
It was insisted on the one said, and denied on the other, 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 supreme court of New York, in the decision
which was rendered.
Whether this was so or not, could only be properly considered
when the case came to be heard on its merits; but this Court, in
denial of the motion to dismiss,
held that the supreme
court of New York necessarily decided what effect the attachment
proceedings in Illinois had by the law and usage in that state; and
as it decided against the effect which Green claimed for them, this
Court had jurisdiction, under the clause of the Constitution which
declares "that full faith and credit shall be given in each state
to the public acts, records, and judicial proceedings in every
other state," and the act of Congress of 1790, which gives to those
proceedings the same faith and credit in other states, that they
have in the state in which they were rendered.
This decision, supported as it was by reason and authority, left
for consideration on the hearing of the case the inquiry
Page 74 U. S. 146
whether the supreme court of New York did give to the attachment
proceedings in Illinois, the same effect they would have received
in the courts of that state.
By the statutes of Illinois, any creditor can sue out a writ of
attachment against a nonresident debtor, under which the officer is
required to seize and take possession of the debtor's property, and
if the debtor cannot be served with process, he is notified by
publication, and if he does not appear, the creditor, on making
proper proof, is entitled to a judgment by default for his claim,
and a special execution is issued to sell the property attached.
The judgment is not a lien upon any other property than that
attached; nor can any other be taken in execution to satisfy it.
These statutes further provide, that mortgages on personal property
have no validity against the rights and interests of third persons,
without being acknowledged and recorded, unless the property be
delivered to and remain with the mortgagee.
And so strict have the courts of Illinois been in construing the
statute concerning chattel mortgages, that they have held, if the
mortgage cannot be acknowledged in the manner required by the act,
there is no way of making it effective, except to deliver the
property, and that even actual notice of the mortgage to the
creditor, if it is not properly recorded, will not prevent him from
attaching and holding the property. [
Footnote 6]
The policy of the law in Illinois will not permit the owner of
personal property to sell it and still continue in possession of
it. If between the parties, without delivery, the sale is valid, it
has no effect on third persons who, in good faith, get a lien on
it; for an attaching creditor stands in the light of a purchaser,
and as such will be protected. [
Footnote 7] But it is unnecessary to cite any other
judicial decisions of that state but the cases of
Martin v.
Dryden, [
Footnote 8] and
Burnell v. Robertson, [
Footnote 9] which are admitted in the record to be a true
exposition of the laws of Illinois on the subject, to establish
that there the
Page 74 U. S. 147
safes were subject to the process of attachment, and that the
proceedings in attachment took precedence of the prior unrecorded
mortgage from Bates.
If Green, at the date of the levy of his attachment, did not
know of this mortgage, and subsequently perfected his attachment by
judgment, execution, and sale, the attachment held the property,
although at the date of the levy of the execution, he did know of
it. The lien he acquired, as a
bona fide creditor, when he
levied his attachment without notice of the mortgage, he had the
right to perfect and secure to himself, notwithstanding the fact
that the mortgage existed, was known to him, before the judicial
proceedings were completed. This doctrine has received the sanction
of the highest court in Illinois through a long series of
decisions, and may well be considered the settled policy of the
state on the subject of the transfer of personal property. If so,
the effect which the courts there would give to these proceedings
in attachment, is too plain for controversy. It is clear, if Van
Buskirk had selected Illinois, instead of New York, to test the
liability of these safes to seizure and condemnation, on the same
evidence and pleadings, their seizure and condemnation would have
been justified.
It is true, the court in Illinois did not undertake to settle in
the attachment suit the title to the property, for that question
was not involved in it, but when the true state of the property was
shown by other evidence, as was done in this suit, then it was
obvious that by the laws of Illinois it could be seized in
attachment as Bates' property.
In order to give due force and effect to a judicial proceeding,
it is often necessary to show by evidence, outside of the record,
the predicament of the property on which it operated. This was done
in this case, and determined the effect the attachment proceedings
in Illinois produced on the safes, which effect was denied to them
by the supreme court of New York.
At an early day in the history of this Court, the act of
Congress of 1790, which was passed in execution of an express power
conferred by the Constitution, received an interpretation
Page 74 U. S. 148
which has never been departed from, [
Footnote 10] and obtained its latest exposition in the
case of Christmas v. Russell. [
Footnote 11]
The act declares that the record of a judgment (authenticated in
a particular manner), shall have the same faith and credit as it
has in the state court from whence it is taken. And this Court say:
"Congress have therefore declared the effect of the record, by
declaring what faith and credit shall be given to it," and that "it
is only necessary to inquire in every case what is the effect of a
judgment in the state where it is rendered."
It should be borne in mind in the discussion of this case, that
the record in the attachment suit was not used as the foundation of
an action, but for purposes of defense. Of course Green could not
sue Bates on it, because the court had no jurisdiction of his
person; nor could it operate on any other property belonging to
Bates than that which was attached. But, as by the law of Illinois,
Bates was the owner of the iron safes when the writ of attachment
was levied, and as Green could and did lawfully attach them to
satisfy his debt in a court which had jurisdiction to render the
judgment, and as the safes were lawfully sold to satisfy that
judgment, it follows that when thus sold the right of property in
them was changed, and the title to them became vested in the
purchasers at the sale. And as the effect of the levy, judgment and
sale is to protect Green if sued in the courts of Illinois, and
these proceedings are produced for his own justification, it ought
to require no argument to show that when sued in the court of
another state for the same transaction, and he justifies in the
same manner, that he is also protected. Any other rule would
destroy all safety in derivative titles, and deny to a state the
power to regulate the transfer of personal property within its
limits and to subject such property to legal proceedings.
Attachment laws, to use the words of Chancellor Kent "are legal
modes of acquiring title to property by operation of law." They
exist in every state for the furtherance of
Page 74 U. S. 149
justice, with more or less of liberality to creditors. And if
the title acquired under the attachment laws of a state, and which
is valid there, is not to be held valid in every other state, it
were better that those laws were abolished, for they would prove to
be but a snare and a delusion to the creditor.
The Vice-Chancellor of New York, in
Cochran v. Fitch,
[
Footnote 12] when
discussing the effect of certain attachment proceedings in the
State of Connecticut, says:
"As there was no fraud shown, and the court in Connecticut had
undoubted jurisdiction
in rem against the complainant, it
follows that I am bound in this state to give to the proceedings of
that court the same faith and credit they would have in
Connecticut."
As some of the judges of New York had spoken of these
proceedings in another state, without service of process or
appearance, as being nullities in that state and void, the same
vice-chancellor says:
"But these expressions are all to be referred to the cases then
under consideration, and it will be found that all those were suits
brought upon the foreign judgment as a debt, to enforce it against
the person of the debtor, in which it was attempted to set up the
judgment as one binding on the person."
The distinction between the effect of proceedings by foreign
attachments, when offered in evidence as the ground of recovery
against the person of the debtor, and their effect when used in
defense to justify the conduct of the attaching creditor, is
manifest and supported by authority. [
Footnote 13] Chief Justice Parker, in
Hall v.
Williams, [
Footnote 14]
speaking of the force and effect of judgments recovered in other
states, says:
"Such a judgment is to conclude as to everything over which the
court which rendered it had jurisdiction. If the property of the
citizen of another state, within its lawful jurisdiction, is
condemned by lawful process there, the decree is final and
conclusive."
It would seem to be unnecessary to continue this investigation
further, but our great respect for the learned court
Page 74 U. S. 150
that pronounced the judgment in this case, induces us to notice
the ground on which they rested their decision. It is, that the law
of the state of New York is to govern this transaction, and not the
law of the State of Illinois where the property was situated; and
as, by the law of New York, Bates had no property in the safes at
the date of the levy of the writ of attachment, therefore none
could be acquired by the attachment. The theory of the case is,
that the voluntary transfer of personal property is to be governed
everywhere by the law of the owner's domicile, and this theory
proceeds on the fiction of law that the domicile of the owner draws
to it the personal estate which he owns wherever it may happen to
be located. But this fiction is by no means of universal
application, and as Judge Story says, "yields whenever it is
necessary for the purposes of justice that the actual situs of the
thing should be examined." It has yielded in New York on the power
of the state to tax the personal property of one of her citizens,
situated in a sister state, [
Footnote 15] and always yields to "laws for attaching the
estate of nonresidents, because such laws necessarily assume that
property has a situs entirely distinct from the owner's domicile."
If New York cannot compel the personal property of Bates (one of
her citizens) in Chicago to contribute to the expenses of her
government, and if Bates had the legal right to own such property
there, and was protected in its ownership by the laws of the state;
and as the power to protect implies the right to regulate, it would
seem to follow that the dominion of Illinois over the property was
complete, and her right perfect to regulate its transfer and
subject it to process and execution in her own way and by her own
laws.
We do not propose to discuss the question how far the transfer
of personal property lawful in the owner's domicile will be
respected in the courts of the country where the property is
located and a different rule of transfer prevails.
Page 74 U. S. 151
It is a vexed question, on which learned courts have differed;
but after all there is no absolute right to have such transfer
respected, and it is only on a principle of comity that it is ever
allowed. And this principle of comity always yields when the laws
and policy of the state where the property is located has
prescribed a different rule of transfer with that of the state
where the owner lives.
We have been referred to the case of
Guillander v.
Howell, [
Footnote 16]
recently decided by the Court of Appeals of New York, and as we
understand the decision in that case, it harmonizes with the views
presented in this opinion. A citizen of New York owning personal
property in New Jersey made an assignment, with preferences to
creditors, which was valid in New York but void in New Jersey.
Certain creditors in New Jersey seized the property there under her
foreign attachment laws and sold it, and the Court of Appeals
recognized the validity of the attachment proceeding, and
disregarded the sale in New York. That case and the one at bar are
alike in all respects except that the attaching creditor there was
a citizen of the state in which he applied for the benefit of the
attachment laws, while Green, the plaintiff in error, was a citizen
of New York; and it is insisted that this point of difference is a
material element to be considered by the court in determining this
controversy, for the reason that the parties to this suit, as
citizens of New York, were bound by its laws. But the right under
the Constitution of the United States and the law of Congress which
Green invoked to his aid is not at all affected by the question of
citizenship. We cannot see why, if Illinois, in the spirit of
enlightened legislation, concedes to the citizens of other states
equal privileges with her own in her foreign attachment laws, that
the judgment against the personal estate located in her limits of a
nonresident debtor, which a citizen of New York lawfully obtained
there, should have a different effect given to it under the
provisions of the Constitution and the law of Congress, because the
debtor, against whose property it was recovered, happened also to
be a citizen of New York.
Page 74 U. S. 152
The judgment of the supreme court of the state of New York
is reversed and the cause remitted to that court with instructions
to enter judgment for the plaintiff in error.
[
Footnote 1]
1 Gilman 187; 5
id. 282.
[
Footnote 2]
Revised Statutes of 1845, p. 630,
et seq.
[
Footnote 3]
Ib., ch. 20
[
Footnote 4]
72 U. S. Van
Buskirk,@ 5 Wall. 310.
[
Footnote 5]
72 U. S. 5
Wall. 312.
[
Footnote 6]
Henderson v. Morgan, 26 Ill. 431;
Porter v.
Dement, 35
id. 479.
[
Footnote 7]
Thornton v. Davenport, 1 Scammon 296;
Strawn v.
Jones, 16 Ill. 117.
[
Footnote 8]
1 Gilman 187.
[
Footnote 9]
5
id. 282.
[
Footnote 10]
Mills v.
Duryee, 7 Cranch 481.
[
Footnote 11]
72 U. S. 5 Wall.
290.
[
Footnote 12]
1 Sandford Ch. 146.
[
Footnote 13]
Cochran v. Fitch, 1 Sandford Ch. 146;
Kane v.
Cook, 8 Cal. 449.
[
Footnote 14]
6 Pickering 232.
[
Footnote 15]
The People ex. rel. Hoyt v. Commissioner of Taxes, 23
N.Y. 225.
[
Footnote 16]
35 New York Reports 657.
