Barney v. Patterson's Lessee , 6 H. & J. 182 ( 1824 )

Buchanan, Cb, J.

delivered- the opinion of the courts This is an appeal from the judgment of Baltimore county-court, in an action of ejectment, brought by William Patterson's lessee, the appellee, against John Barney, the appellant.

The appellee, claims title under a sale made to the lessor of the plaintiff by Paul. Bentalou, marshal of the United States, in virtue of a writ of fieri facias, sued out of the circuit court of the United States, for the District of Maryland, upon a judgment of a condemnation by that court, of the premises in .question, on proceedings in attachment, in a suit instituted by the Untied Slates against JSquila Brown, to whom the premises so condemned and sold belonged. All discussion of the first bill of exceptions was waived by the counsel on both sides; but the question involved, having been heretofore differently decided in this court, we do not concur in opinion with the court below on that exception.

The question raised on the second bill of exceptions taken at the trial is, whether the lessor of the plaintiff acquired the legal title under and in virtue of that judgment and sales’ On the part of the appellant it has been strongly urged, that he did not; first, on the ground that the proceedings under the attachment were coram non judice, and wholly null and void; and second, that the judgment of the circuit court is a foreign judgment, and not Conclusive, but examinable.'

Ey the eleventh section of the act of congress of 1789, eh. 20, it is provided, “that the circuit court of the United States shall have original cognizance," concurrent with the courts of the several stales, of all suits of a civil nature, at common law, or in, equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and the United States are plaintiffs or petitioners, or an alien is a party, or the suit is between a citizen of the state where the suit is brought, and. a citizen of another state.” And by the thirty-fourth section of the same law it is enacted, “that the laws of the several states, except where the constitution, treaties, or statutes of the United States, shall otherwise require or provide, shall be regarded as rules of decision in trials at. common law in the courts of the United Slates, in cases where they apply.”

The amount for which the suit was brought by the UniU ed States against Brown, far exceeded five hundred dollars, the circuit court therefore had full, complete and unlimited jurisdiction of the subject matter in dispute, under the eleventh section; and the laws of this state, applicable to the subject, being by the thirty-fourth section made rules of decision for the circuit court, that tribunal was clothed with all the power and authority to award aa attachment possessed by the courts of this state, under the, act of 1715, 'ch. 40. The second section of this act, upon which the proceedings ip attachment in the circu.it court Were foundp^ js in these words: “from henceforth no attachment shall issue out of any court of this province, before a writ or summons be first made opt, upon which writ, if the party defendant; be an inhabitant, or resident within this province, and thp sheriff shall return a non est inventus, one other writ op summons shall thereupon, in like manner aforesaid, issue forth against the sgid defendant; and if the sheriff shall, upon the second writ or summons, return a non est inventus likewise,'an attachment shall and . may, in manner and font) hereafter set down, be awarded.”. The third section authorises, an attachment, “such proof-being made by the plaintiff of his action as the court shall; thin.k fit,” to be awarded against the “goods, chattels and, credits,” of the defendant, with a. clause commanding the sheriff, at the time of executing the attachment, to make known to the person or persons in whose hands or possession the goods, &c. attached are, to.appear before the court, cpn the return of the attachment, to show cause, why. such goods, &c. should not .be condemned, &c. and directs, that, if on the return day neither the defendant nor the garnishee ' shall appeal; to show cause to the contrary, the goods, &c„ shall be condemned,, and execution thereof awarded as in otlier judgments, the plaintiff giving security for the. usé of the defendant, (which was done by the United States,) to make restitution of the goods, &c. so condemned, or the value thereof, if. the defendant shall at any time within a year and a day, in person, or by attorney, appear to the original action, and prove payment of the debt or demand, or otherwjse in court discount or bar the-plaintiff of the same, or any part thereof.” In support of the first position it has been contended, that in the case of a foreigner no attachment cap. be awarded on the.return of-non est inventus upon a second capias,, but that, it. will, only lie where the defendant is an inhabitant or resident of' the state; which, to give jurisdiction to the court, must' appear upon the face of the proceedings in the cause; and that the proof in the record shows that BrQwn was not an. inhabitant of this state at the time of suing out the writ of attachment, -but was residing in Europe. To which it. may be answered, that the proof of Brown’s residence ill ¡Europe was taken at the trial of this cause in the court below, and not in the suit in which the attachment was awarded by the circuit court, with which it has no connexion. But that in both the writs of capias ad respondendum, the declaration, and thé.writ of attachment, he is styled Jlquila Brown, late of the Maryland District. The bill of exchange, on which the suit was founded, is dated at Baltimore, and the declaration charges that Brouni was i-esiding in the Maryland District, and there carrying on the business of a merchant, at the time the bill was made. So that whatever may have been the fact in-relation tó his residence, it does, technically at least, appear upon the face of the proceedings that he was a resident of the state, and there is nothing in the case from which the contrary appears, or can be inferred; and if his being a resident tvas necessary to the jurisdiction of the court, is not the style and character given him in the proceedings prima fade sufficient ió confer aiid sustain that jurisdiction? And what is there in the act of assembly requiring of a plaintiff to make proof of the residence of the defendant by affidavit, or otherwise, or to do any thing more than wad done in the Case of tile United States against Brown to give jurisdiction to the court? No mode of proof is pointed out, nor any description of proof expressly required; all that is said is, that no attachment shall issue, where the defendant is a resident of the state, before a second non 'est inventus has been returned.

But is it true that an attachment can only be awarded under the second section against the goods, &e. of a resident defendant? The act is indeed silent as to foreigners eo nomine, but is it not prohibitory only as respects residents? The language used is, not that no attachment shall issue unless the party defendant be a resident of the state, or if he be a foreigner or nonresident, but the words are, “that from henceforth no attachment shall issue out of any court of this province before a writ or summons be first made out, upon which writ, if the party defendant be an inhabitant or resident within this province,” &c. Then provision is made for the return of a first and a second non est inventus, before an attachment shall be awarded. But it is not provided that an attachment shall not be awarded if he be not an inhabitant or resident; and in the absence of any such provision, the construction found to have been given to that section of the act by the .different coiifts of the state is; that oii the return of two non ests, an attachment will lié against the property of the defendant, whether he he in fact a resident or not, and the practice has been so long settled as to command respect whatever would be the construction; if it was now vexata quesiio. it is. also objected, 2d, that there was not sufficient proof made of the cause of action to warrant the issuing of an attachment. 3d; That the attachment awarded is against the lands, tenements, goods, chattels and credits, of Brown, whereas the act of assembly only authorises an attachment ’against the goods, chattels and credits. 4th. That a term was suffered to intervene between the time of issuing the attachment, and the term at which it was awarded. And 5th. That it doés not appear that there was any service by the marshal of the scire facias contained in the writ of attachment, no notice being taken of any such service in hist return of the attachment. The second and third objections have nothing in them; with respect to the former, the act of assembly prescribes no particular proof, but leaves ifc entirely in the breast of the court.

The bill of exchange on which the suit was brought, was exhibited to the court, and appears in the proceedings, and in the judgment for the writ of attachment it is recited, that the United States made proof to the court of their damages to the sum of g58,201 71; and with regard to the latter, it is sufficient to say, that lands were not liable to execution for debt at the time of the passage of the act, and not being’in terms embraced by it, were not subject to. attachment. But under the construction given to the sta-, tute 5 Geo. II, ch. 7, lands became liable to be taken and .sold by fieri facias in the same manner as goods and chattels, and have ever since been uniformly held to be subject to. attachment by all the tribunals of the state.

The attachment in question, therefore, was properly awarded under the circumstances of the case, jurisdiction being given to the court on the face of the proceedings. If it were otherwise, property acquired in this state by foreigners residing without the United States, would be completely protected against their creditors, there being no other mode of reaching it, and when they are placed in no worse situation than citizens, and their property is subject-pd only to the same process, it is no cause of complaint that they are styled and treated as citizens in the foiras of ’proceedings.

As to the fourth and fifth objections, the attachment Should regularly have been issued as of the tdrm at which it was awarded, and it was the duty of the marshal to have served the scire facias in the attachment on the person or persons who were found in possession of the property attached, and to have certified such service, or if th¿ property was unoccupied, to have made a corresponding return. Rut though the intervening of a term before the issuing of the attachment, and the negligence of the marshal, were irregularities in the proceedings, the judgment of condemnation is not therefore void, (whatever disposition might be made of it by an appellate court,) the circuit court being a court of record of competent jurisdiction, from whose decisions an appeal or writ of error lies to the supreme court of the United States, and is not an inferior court according to the technical sense of the term as used in England. It is not like the case of special and extraordinary powers given by statute to a court in relation to a subject matter of which such court has no jurisdiction independent of the statute, but derives its authority to act upon facts arising in pais entirely from the statute giving the power, and prescribing the mode of proceedings The act upon which the .proceedings of the cirpuit court were founded, professes to give no new jurisdiction, blit only to regulate and limit the powers of courts already possessed of full and complete jurisdiction of the whole subject matter. The preamble is in these words: “Whereas it is highly expedient to settle the manner of proceedings on attachments, and limiting the extent of them, and to provide what shall be levied on such attachments aud executions. ” It belongs to the sovereign authority of a state to prescribe’ the manner of proceeding in its courts of justice, and to make such provisions for the recovery .of debts as the legislature may deem most expedient. The- proceeding by attachment under that law is only process to compel the appearance of a defendant to a suit before brought and depending in a court of competent jurisdiction, whose person cannot be reached by the process of the court, of which it comes in aid, and without which the plaintiff would be without remedy| and it is not a proceeding in derogation of the principles of the common law, but rather in mitigation of the severity of the common law in favour of defendant??' By the common law, where a defendant was summoned; and would not appear, his goods were liable to be proceeded against by attachment and distress infinite, and the goods seized were forfeited to the king; and where the defendant was abroad or kept out of the way so that he could not be arrested, the plaintiff might proceed against him to outlawry, which was also attended with a forfeiture to the king of all his goods and chattels; The proceeding to outlawry, or by distringas, was to compel the appearance of the defendant; and so with the attachment here, it is only a proceeding against the defendant’s goods, to compel his appearance, with this difference in favour of the defendant, that a year and a day is given him to come in and appear to the original action, and if he can defeat it, to have a return of his property without any forfeiture to tire state. And it would seem, from the language of the preamble; that the act was passed with a view to a mitigation; bf the rigour of the common law; and an outlawry, though illegal because the party was beyond sea, cannot be set aside by a third person in a collateral action, but is voidable alone by the party himself, and that only sub modo by his appearing and putting in bail. 6 Com. Dig. (C 2,) 488. Simonds vs. Parmiter, 1 Wm. Blk. Rep. 20. And in the case of The Marshalsea, Coke, 77, it is laid down, “that if the court of common pleas hold plea in debt, trespass, &c. without an original, it is not void, for they are judges of those pleas, and it cannot be said that the proceeding is coram non judice,” and surely in such case the irregularity is as great as any appearing in the proceeding before the circuit court. And in the same hook, 76, it is said, “That if the court of common pleas, in a plea of debt, awards a capias against a Duke, Earl, &c. which by law doth not li.e against them, and that appears in the writ itself; and if the sheriff arrests them by force of the capias, although the writ be against law, notwithstanding, inasmuch as "the court has jurisdiction of the cause,- the sheriff is excused;’"5 which could not be if the proceeding was void.

With regard to the second point raised, “that the judgment of the circuit court is a foreign judgment and not conclusive but examinable,” the long and well established' rule in England is, that foreign judgments are not conclusive, but are always 'examinable, where the' parties «¿¡aiming the- benefit of them apply to the courts of that country to enforce, them; as, if an action of ccbt or assumpsit be brought apon such a judgment, it is onjy prima facie evidence of the debt, and may be impeacheid, by the other party; but that the judgments of foreign courts of competent jurisdiction, when coming incidentally in question, have the same force and effect with domes,tic judgments. .That principle was recognized and adopted; in Pennsylvania in Repelje vs. Emery, 2 Dall. 231, and in the supreme court of the United States, in Croudson & others, vs. Leonard, 4 Cranch, 434; and the. same principle applying with equal force in this state, the, same rule will be adopted here. Treating then the judgment of the circuit court as the judgment of a foreign tribunal-of;compefent jurisdiction, it stands upon the same footing, that a domestic judgment offered at the trial for the same purpose would have done, and was not liable to be impeached in the Baltimore county court for any mere irregularity, though such irregularity should be a sufficient ground for reversal in an appellate court, unless the Baltimore county court could have erected itself into a court of errors to, revise and correct the proceedings of the circuit court, nor can it be here. But under the peculiar structure of our political system,, it should not he treated as a foreign judgment. The constitution and laws of the United States are the supreme law of this state; the laws of this state furnish rules of decision for the circuit court, and causes commenced in the state courts may be removed for trial in-, to the circuit court. The citizens of; the state are return j ed and serve as jurors in that court, and-axe amenable to its process; and their properly, real- and- personal, is.liable to seizure and sale by the marshal of the district, under executions issued upon the judgments of-that court, with other attributes of a domestic court, belonging, to that tribunal, which place it on a ground very different from, that-of a foreign court.

This judgment is also objected to on the ground-, that it is res inter alios aeta, the appellant not being a party to the proceedings. But ffie doctrine that judgments and decrees are only evidence in suits between parties and privies, though generally true, is not applicable to this case;, th e judgment of the circuit court being introduced, not as binding per qe, upon the rights of the appellant, but only as a document connected with the chain of the appellee's title, and is no more obnoxious to objection, than a deed from Brown, or any other title papers, equally res inter, alios acta, would bp,' Without showing that judgment, under the authority of which the sale by the marshal was. made to the lessor of the plaintiff, the validity of that sale, would not be established'; and tQ.reject it, would-be in effect to decide that a title derived under a sale by a marshal or sheriff is of no validity in a suit by or against a. stranger, and to render the law in relation to sales of land, by fieri facias, worse than a mockery.

It has further been contended- in argument, that the lessor of the plaintiff acquired no title by his purchase from, the niarsljal, on the ground — 1st. That a fieri facias issued upon an. erroneous judgment confers no authority upon the officer to. sell; and 2d. That the marshal’s return on, the fieri facias is imperfect and void. The answer to the first oethese positions, is, that if it sho.uld be admitted that there are irregularities in. the proceedings under the attachment, which would on appeal to the proper tribunal be sufficient cause for a reversal of the judgment, yet that judgment is not only not void, but has not been reversed, and is still in full force, and cannot h” impeached by a stranger, in another court, in this collateral way. If it was not merely voidable, but absolutely void ab initio, a different question would be presented; But being a subsisting judgment by a court of competent jurisdiction, and not a mere nullity, the fieri facias clothed the marshal with authority to sell, and if tlje judgment had afterwards been in fact reversed, the title of the purchaser would not thereby have been defeated. The law will not permit even the party himself, who has suffered his land to be sold uncier an erroneous judgment, to disturb the tifie of a bona fide purchaser, by afterwards procuring the judgment to be reversed! If it was otherwise, there would be no security to purchasers, and writs of execution would be of little effect, as few Would incur the risk attending such purchases. "

The objection to the return of the fieri facias^ stands on Jio better ground. It is true that the return does not set out the name of the purchaser, and fhat no description is given of the property sold, for which reason it might perhaps have been set aside on motion. But it is not the return of the officer that gives title to ^ purchaser, but the 'previous sale; which was decided by this court in the case of Boreing’s Lessee vs. Lemmon, 5 Harr. & Johns. 223. And it would be of dangerous consequence to boya fide purchasers, if after having paid their money for property sold under competent and legal authority, they should be at the mercy of officers who might malee imperfect returns of executions, or if they pleased snake no returns at all. But a sheriff’s sale of land being within the statute oí frauds, some memorandum in writing is necessary toba made. It is therefore always right and proper, for the security and protection of purchasers, that in addition to a deed for the laud sold, there should be a special return of the execution, particularly describing the premises, and setting «at the name of the purchaser, either of which, though riot operating to, pass the title, would be safe and «competent evidence of the sale.

fndhis case the sale by the marshal, was of ihe specific property condemned according to the act of assembly, for which he passed his deed to the lessor of the plaintiff, containing a sufficient description of the premises sold.

3 VD GHENT ArEIIUIF».