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Green agt. Buskirk.
ity, left for consideration, on the hearing of the case, the inquiry, 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. А succinct statement of the facts in the case, (which are brief) will give us a clear idea of what those proceedings were, and enable us the better to understand the controverted point concerning them. It seems, that on the third day of November, 1857, Bates, who lived in Troy, New York, and owned certain iron safes in Chicago, Illinois, in order to secure an existing indebtedness to Van Buskirk and others, executed and delivered (in the state of New York) to them, a chattel mortgage on the safes. Two days after this, Green, the plaintiff in error, 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 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 all citizens of New York.
As has been stated, the mortgagees sued Green in New York for taking and converting the safes, who defended the taking and conversion under the Illinois attachment proceedings.
It is stipulated in the record that these proceedings were regular, and in conformity with the laws of Illinois, 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 was notified of the mortgage, and the claim under it, and the 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 to do by the laws of Illinois.
Green agt. Buskirk.
By the statutes of Illinois (R. S. 1845, p. 63, et sequitur) 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 (R. S. 1845, ch. 20), 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. (Henderson agt. Morgan, 26 II., 430; Porter agt. Dement, 35 Ill., 479.)
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. (Davenport agt. Thornton, 1st Scammon: Strawn agt. Jones, 16 Ill., 117.) But it is unnecessary to cite any other judicial decisions of that state, but the cases of Martin agt. Dryden (1 Gilman,) and Robertson agt. Burnell, (5 Gilman,) which are admitted in the record to be a true exposition of the laws of Illinois on the subject, to estab
Green agt. Buskirk.
lish that there the safes were subject to the process of attachment and that the proceedings in attatchment 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 bad 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 condemuation 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 attach ment 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.
Green agt. Buskirk.
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 which has never been departed from, and obtained its latest exposition in the case of Christmas agt. Russell, decided in 5 Wallace. (Mills agt. Duryee, 7 Cranch; Christmas agt. Russell, 5 Wallace.)
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 of them became vested in the purchaser 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
Green agt. Buskirk.
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 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 agt. Fitch, (1 Sand. Ch. R., 146,) 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. (Cochran agt. Fitch, cited above; Kane agt. Cook, 6 California, 449.)
Chief Justice PARKER, in Hall agt. Williams, (6 Pick., 2:32,) speaking of the force and effect of judgments recov