Vol. I.]

CAMPBELL V. DEARBORN.

[No. 3.

forms and outward appearance differing from the reality, it is hardly reasonable that the absence of an actual debt, manifested by a written acknowledgment or an express promise to pay, should be regarded as of more significance than the absence of a formal defeasance. It of course compels the party attempting to impeach the deed to make out his proofs by other and less decisive means. But as an affirmative proposition it

cannot have much force.

A mortgage may exist without any debt or other personal liability of the mortgagor. If there is a large margin between the debt or sum advanced and the value of the land conveyed, that of itself is an assurance of payment stronger than any promise or bond of a necessitous borrower or debtor. Hence inadequacy of price, in such case, becomes an important element in establishing the character of the transaction. Inadequacy of price, though not of itself alone sufficient ground to set in motion chancery powers of the court, may nevertheless properly be effective to quicken their exercise, where other sufficient ground exists; Story Eq. §§ 239, 245, 246; and in connection with other evidence may afford strong ground of inference that the transaction purporting to be a sale was not fairly and in reality so. Kerr on Fraud and Mistake, 186 and note; Wharf v. Howell, 5 Binn. 499.

Another circumstance, that may and ought to have much weight, is the continuance of the grantor in the use and occupation of the land as owner, after the apparent sale and conveyance. Cotterell v. Purchase, Cas. temp. Talbot, 61; Lincoln v. Wright, 4 De Gex & Jones, 16.

These several considerations have more or less weight, according to the circumstances of each case. Conway v. Alexander, 7 Cranch, 218; Bentley v. Phelps, 2 Woodb. & Min. 426. It is not necessary that all should concur to the same result in any case. Each case must be determined upon its own special facts; but those should be of clear and decisive import.

In the present case, we are able to arrive at the clear and satisfactory conclusion that there was no real purchase of the land by the defendant, either from Tirrill or from the plaintiff; that his advance of the purchase money at the request of the plaintiff created a debt upon an implied assumpsit, if there was no express promise; and that it was the expectation of both parties that the money would be repaid soon and the land reconveyed. Whatever may have been the intention of the defendant, he must have known that this was the expectation of the plaintiff; and it is most favorable to him to suppose that it was his own expectation also. These conclusions are not in the least modified in his favor by an examination of his answer.

We must declare therefore that in equity he redemption by the plaintiff in such manner and be determined upon a hearing therefor before a

holds the title subject to upon such terms as shall single justice.

Decree accordingly.

When a judgment obtained in one state is sought to be enforced in another, it is competent for the courts of the latter, under a plea of nul tiel record, to determine whether such service was made upon the defendant in the original action as to give the court jurisdiction of his person.

DEADERICK, J. This is an action of debt instituted in the law court of Memphis, upon the record of a judgment of a circuit court of Mississippi. Defendant below (Barnett) pleaded nul tiel record and payment. After one verdict and judgment in favor of defendant, a new trial was granted, which resulted in a verdict in favor of plaintiff, and defendant has appealed in error to this court. The argument of counsel here has been mainly addressed to the question of the validity of the record of the judgment, which is the foundation of this suit. For plaintiff in error it is insisted that the record sued on shows upon its face that defendant had no notice, actual or constructive, of the existence of the suit against him, and that this court must hold the judgment void for want of jurisdiction of the person. While, on the other hand, it is insisted that the judgment, having been rendered by a court of competent jurisdiction in such cases, its jurisdiction can no more be inquired into by the courts of this State, than the correctness of the judgment upon the merits. The statutes of Mississippi require that original process shall be served personally on the defendant, if to be found, and a true copy thereof delivered to him. the defendant cannot be found, such process may be served by leaving such copy at his usual place of abode, with his wife, or some free white person above the age of sixteen years, then and there being a member of his family, &c.

If

The record in question shows that on the 18th of May, 1860, a declaration of complaint was filed in the office of the clerk of the circuit court of Sunflower County, Mississippi, and thereupon a summons was issued, which was returned indorsed as follows: "Received May 28, 1860. Executed this writ May 30, 1860, by leaving a true copy thereof with

a free white person, found at his usual place of residence in this county, defendant not being found. Eli Waites, sheriff, by G. H. Bryant, special deputy." Then follows, at the December term, 1860, a judgment by default, for $1,050.08.

From the sheriff's return, it is manifest that the personal service of the writ was not effected, and we think it equally clear that no constructive notice was given, nor does the record anywhere recite that the defendant appeared, or that he was summoned to appear. It is not a case of defective service of process, but one of a total want of service, a distinction

Vol. I.]

BARNETT v. OPPENHEIMER.

[No. 3.

clearly recognized in the case of Harrington v. Wofford, 46 Miss. R. 41, where it is said: "There is a very clear and obvious distinction between a total want of service of process, and a defective service, as to their effect in judicial proceedings. In the one case the defendant has no notice at all of the suit or proceedings against him. The judgment or decree in such cases, it is conceded, is coram non judice and void, upon the principles of law and justice. In the other case the defective service of process gives the defendant actual notice of the suit or proceedings against him, and the judgment or decree in such case, although erroneous, would be valid, until reversed by a direct proceeding in an appellate jurisdiction, and its validity cannot be called in question." The same distinction is recognized between a void and a voidable judgment, or an irregular or defective service and no service at all, in same book, page 675, and in 41 Miss. 562. In the last named case Judge Ellett, delivering the opinion of the court says:

"Where judgment in default is taken upon a return which purports to show that the process has been actually executed, such judgment is valid and binding whenever it comes collaterally in question, although the defendant might reverse it upon a writ of error, on the ground of the insufficiency of the return." In the case under consideration, there was no personal service of notice, nor any constructive notice, so that according to the case in 46 Miss. 41, the judgment rendered in Mississippi is void there, and this is so whether defendant was or was not a resident or inhabitant of that State at the time of the rendition of the judgment. The Constitution of the United States declares, "full faith and eredit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved and the effect thereof." Article four, section one.

Pursuant to this authority, Congress enacted "That the said record and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them, in every court within the United States, as they have by law or usage in the courts of the state from whence the said records are or shall be taken." Act of May 26, 1790. If, therefore, the judgment in this case is a valid judgment, which the court in Mississippi had the jurisdiction to pronounce, it is equally valid and binding here. But it is insisted by the counsel for the defendant in error that the question of jurisdiction of the person of the defendant is just as legitimate for the determination of the court rendering the judgment sued on, as any other question arising in the cause, and when determined, as it necessarily is in the rendition of the judgment, it is conclusive, and cannot be inquired into in a collateral proceeding. Authorities have been cited which fully sustain the proposition of the counsel. In the notes of the two cases of Mills v. Duryee, and McElmoyle v. Cohen (2 Am. Lead Cases), many cases in the United States and state courts are cited, which show conflict and differences in the holdings of those courts. While many of them fully sustain the proposition of the counsel for defendant in error, as before stated, other authorities equally as decisively announce the doctrine that, upon the plea of nul tiel record, the court should inspect the record, and determine for itself whether the court trying the cause had jurisdic

Vol. I.]

BARNETT v. OPPENHEIMER.

[No. 3.

tion of the person of the defendant. If defendant had no notice, actual or constructive, of the proceedings against him, it would be alike contrary to natural justice and to law to hold him liable. A judgment pronounced against a person under such circumstances is null and void, and is so declared by the courts of Mississippi, and have been so declared repeatedly by our own courts. To hold, therefore, that the courts of this State may not declare a judgment of Mississippi void, which the adjudications of that State declare void, would be to give greater faith and credit to the proceedings of the courts of that State by our own courts, than her own courts would give. The plea of nul tiel record properly raises the question of the existence of the record sued on, and this plea is triable by the court; and when, on inspection of the record, it appears that the party sued in this State was not before the court at the trial, and that the court never had jurisdiction of his person, he having had no notice of the suit nor opportunity to defend it, it is in fact no record as to him, and he is not bound by the judgment therein rendered. Whether the court had jurisdiction of the person may be tried and determined by the court before whom the suit upon the record is brought. And this power, which has been asserted and exercised by our own courts, is not in violation of the act of Congress of 1790. In Sto. on C. L. § 609, it is said that “judgments in state courts have the same force and effect in other states as in the state in which they are rendered;" and adds: "This does not prevent an inquiry into the jurisdiction of the court in which the original judgment was rendered." To the same effect are the cases in 9 Mass. 462, 14 Howard (U. S.), Harris v. Hardeman, p. 337, where numerous cases are referred to and reviewed. In the case of Moren v. Killibrew (2 Yerg. 376), Judge Whyte, delivering the opinion of the court, declares that void judgments have no operation whatever, while voidable judgments are valid until reversed; and, while disclaiming any right to determine whether the court of a sister state had rendered a correct or erroneous judgment upon the subject matter before it, very clearly asserts the power of a court of this State, when called upon to enforce the judgment of the court of another state, to inquire into the jurisdiction of the court rendering the judgment sought to be enforced. These authorities and others which might be cited, fully sustain what we regard as the safer and more just rule upon the subject, i. e., that when a judgment from another state is sought to be enforced in the courts of this State, it is competent to our tribunals upon the plea of nul tiel record to determine whether the court rendering the judgment sought to be enforced had jurisdiction of the person against whom the judgment is rendered, and of the subject matter of the suit. It results that the judgment of the law court at Memphis was erroneous, and must be reversed, and this court, rendering here such a judgment upon the plea of nul tiel record as the court below should have rendered, sustain the plea and dismiss the suit at the cost of plaintiff below. The judgment of the court in favor of defendant upon his plea of nul tiel record is decisive of the case, and makes it unnecessary to remand the cause for a trial upon what is now the immaterial plea of payment.

UNION PACIFIC RAILROAD COMPANY v. JESSE L. FORT.

A boy was employed in the machine shop of a railroad company as a workman, — under the direction of the company's foreman and required to obey his orders; the boy, by the order of the foreman, ascended a ladder among dangerous machinery for the purpose of adjusting a belt, and while endeavoring to adjust the belt his arm was torn off by the machinery; the jury having found that the adjusting of the belt was not within the scope of the boy's duty and employment, but was within that of the foreman; that the order was not a reasonable one; that its execution was attended with hazard to life or limb, and that a prudent man would not have ordered the boy to execute it. Held, that the rule that a master was not responsible to one servant for an injury caused by the negligence of a fellow-servant was not applicable, and that the company was liable.

ERROR to the circuit court of the United States for the District of Minnesota. The facts of the case and the special verdict will be found in 2 Dillon C. C. R. 259.

Redick & Briggs, for the plaintiff (Fort).

Poppleton & Wakely, for the railroad company.

Mr. Justice DAVIS delivered the opinion of the court.

It was assumed on behalf of the plaintiff in error, on the argument of this cause, that the master is not liable to one of his servants for injuries resulting from the carelessness of another, when both are engaged in a common service, although the injured person was under the control and direction of the servant who caused the injury. Whether this proposition as stated be true or not, we do not propose to consider, because, if true, it has no application to this case.

The action was brought by the defendant in error to recover damages for an injury to his minor son, resulting in the loss of an arm, while in the employment of the railroad company. The boy was employed in the machine shop of the company as a workman or helper, under the superintendence and control of one Collett, and had been chiefly engaged in receiving and putting away mouldings as they came from a moulding machine. After the service had been continued for a few months, the boy, by the order of Collett, ascended a ladder to a great height from the floor, among rapidly revolving and dangerous machinery, for the purpose of adjusting a belt by which a portion of the machinery was moved, and while engaged in the endeavor to execute the order the accident happened. The jury, by a special verdict, find that the boy was engaged to serve under Collett as a workman or helper, and was required to obey his orders; that the order by Collett to the boy (in carrying out which he lost his arm) was not within the scope of his duty and employment, but was within that of Collett's; that the order was not a reasonable one;