Dupuy v. Bemiss

2 La. Ann. 509

• Court: Supreme Court of Louisiana
• Decided: May 15, 1847
• Status: Published

Opinion

The judgment of the court was pronounced by

E-dstis, C. J.

Claudius Gibson, a citizen of this State, and an inhabitant of the parish of Carroll, died therein, in the month of Juno, 1841, and, in October following, Thomas V. Davis, a citizen and inhabitant of thjs State, was appointed .administrator of his succession, and took possession of the effects thereof, and undertook the administration of the same, .under an order of the Court of Probates of the parish of Carroll. In the month -of May previous, Tobias Gibson, a citizen of the Stato of Kentucky, had obtained a judgment against tho deceased in the District Court for the parish of Carroll, for the s.um of $33.,100, with interest. In December, 1841, Tobias Gibson filed his petition in the Circuit Court of the United States, for the fifth circuit, district of Louisiana, in which he alleges the recoyery of this judgment, and that under an execution issued on said judgment a seizure had been made .of certain slaves and moveables, described in tho return of the execution, which was made after the death of Claudius Gibson, without selling any portion of tho property seized. It is alleged that Thomas V. Davis, .curator of the succession of Claudius Gibson, had taken charge of the estate of the deceased, and particularly of the property mentioned in the return of this execution. Executory process is asked against the property seized as aforesaid, for the payment and satisfaction of tho judgment, and the petition concludes with a prayer for general relief. An order for the seizure and sale of the property described was made by the judge, dated the 2d December, 1.841, which was executed by the seizure and advertisement for sale of the slaves by the marshal.

On the 11th January, 1842, at the instance of Davis, administrator, .all pro - ceedings under the process issued in this case were enjoined, by order of tho judge. The bill filed by Davis to obtain an injunction, sets forth the pending administration of the succession, the existence of various conventional and judicial mortgages against it, his refusal to recognise the dobt claimed by Tobias Gibson, and the pendency of a suit between Gibson and himself, as administrator, for the recognition and enforcement of this very mortgage debt. He charges that the judgment, mortgage, or debt, on which the order of soizuro and sale was granted, was fraudulent and simulated ; he denies the existeneo of the debt itself; and alleges that the judgment was given in fraud of the rights of other creditors. The responsibility of the administrator to tho Court; of Probates under which he was appointed, and to which he is solely answerable, is pleaded; and also tíre consequent injury to other creditors, whose rights to be paid will be sacrificed by the appropriation of the property seized to tho exclusive payment of Tobias Gibson’s claim. The power of the judge to grant the order of seizure and sale is expressly denied, and the validity of tho proceedings under it are put at issue. Process is prayed for against Gibson and the marshal, and the prayer of tho bill is, that the injunction be made perpetual, and the property seized be returned to the complainant, as administrator; that the pretended debt claimed, be decreed to be fraudulent and simulated, or tho judgment itself be held to be fraudulent as to other creditors; a decree is also asked for the sum of $50,000 against Gibson, for the value of the slaves, their hire, costs, damages, &c.

To this bill Tobias Gibson filed an answer on tho 29th January, 1842, in which the matters charged in the bill are put at issue, all fraud and collusion are denied, and the validity of the debt, judgment, and mortgage are asserted.

On the 14th March, 1844, tho bill, by a decree of the court, was dismissed, “the said bill not averring, nor proof having been exhibited on the hearing of this cause, that the said creditors, represented by said Davis, are entitled to resort to the jurisdiction of this court, or that they, or any of them, have ex.Iiausted their rights at law, and so rendered the interference of this court proper.” The injunction was dissolved, and the proceeds' of the slaves sold were decreed to be applied to the payment of the judgment of Tobias Gibsons

It is in relation to the sale of those slaves that the difficulty raised by the litigation in this case arises. On the 22d of January, 1842, a rule was taken ordering the counsel for the defendant to show cause why the slaves and moveables seized should not be sold, the former on a credit of one year and the latter' of ninety days, the proceeds to be paid into court, to await its further order; and on the 24th, there being no opposition made thereto, it was made absolute,’ and the property ordered to be sold accordingly; the sale to be made in the palish of Carrol,- after thirty days’ advertisement. This order of sale does not appear to have been acted upon, and on the 19th of February was rescinded at the'instance of another litigant, William Hunt. On the 17th of February, Hunt filed his bill before the same court, representing, that he was a creditor of the late' Claudius Gibson in tíre sum of $10,000, with interest, Which debt was. secured by a special mortgage on the slaves seized at the instance of Tobias Gibson, which had a priority over that resulting from the judgment which Gibson was seeking to enforce under the order of seiztire’ and' sale; that his,Iidnt’s, was the first mortgage oh the slaves ; that the act by which it was given imparted a confession of judgment, and contained the pact de non alienando; that the proceedings of Tobias Gibson against Dddis, administratin'-, which had been instituted, and which are made part of the bill, were collusive and for the purpose of depriving him of his priority in the payment of his special mortgage; that said proceedings were unlawful; and that the seizure of the slaves' by the marshal was without Warrant, the administrator having the sole right to dispose of them under the authority of the Court of Probates. t’obias Gibson, Davis, the administrator, and the marshal, were made parties to this bill, anda decree was asked that the slaves be seized and sold according to law by tho marshal, and the proceeds applied to the extinguishment of the complainant's mortgage; and that said sale be made in New Orleans, at the most suitable place. It was alleged that if made as directed by the order of the Court, in the order of the 22d January, 1842, the security of the Complainant’s debt would bo endangered, and therefore all proceedings under such order are asked to be enjoined until the further order of the' court. Accordingly, on the application of this party, the first order was rescinded, and another was made of dato the 19th of February, 1842, by which the slaves wore ordered to be removed to New Orleans, and sold at public auction after the usual and legal advertisements, the proceeds to remain subject to the further order of the court. There are directions concerning the security to be given by purchasers, which it is not material to mention in detail.

Tobias Gibson demurred to Hunt’s bill, and his demurrer Was sustained, and the'cause remanded to the rules for proceedings against the other defendants. Judgment, jno confesso, was taken against Davis, administrator, who made no answer, and a final decree was entered and executed, by the' payment by preference of the debt and interest out of the proceeds of the slave's, which were sold under the order of the court of the 19th Febiuary, 1842. At this Halo the present defendant purchased the slaves monliouod in the plaintiff’s pe - tition, which are the subjoetof the prosent suit,

It appears that the present plaintiff, Samuel Dupuy, Wa3 appointed curator of the vacant succession of the late Claudius Gibson, and has instituted a petitory action for these slaves against the defendant as belonging to the succession represented by him. The defendant relies upon the validity of the sale under the facts which have been explained.

I. Tho most important question to be determined, relates to the jurisdiction of the court under which the sate was made. The cage arising before the present organisation of the courts of this State, the jurisdiction of the Court of Probates referred to is that which existed previous to the adoption of the present constitution. The proposition is, that tho Circuit Court of the United States had no jurisdiction to order the sale of the property of a succession while under administration, and under the superintendence and authority of the Probate Court. This principle is net only maintained in argument with evident conviction on the part of the counsel, but has had, to a certain extent, the? support of authority. If it be true, it is most important in its operation on tho the judicial power of the courts of the United States, as well as on that of tho States, and presents one of the most serious questions which a court can be Called upon to determine.

The Circuit Courts of the United State's have cognisance, in concurrence with the courts of the States, of all suits of a civil nature, at common law or in equity, where the’ matter in dispute exceeds §500, between- the1 parties designated by law under the constitution of the United States. The latter, in creating the’ judicial power, intended it to extend- to all cases in law and equity, whenever it it had jurisdiction over the persons. And it seems to conflict with this power, that a State, by creating a special jurisdiction over particular classes of casos,’ should to that extent exclude the jurisdiction of tho eourts of the United States. Let us suppose that actions of partition were required to be brought before a particular Court, and that no other court could, by a State law, take jurisdiction of them-, Would the judicial- power vested in the Circuit Courts of the United States be affected by such a limitation of jurisdiction ?

The most obvious impression produced by a consideration of the constitution' of the United States, and the laws made under it for the organisation of the judicial power, certainly is, that whenever their courts have jurisdiction by reason of the person, their jurisdiction ratione materias' extends to ail case» in law and equity, within the pecuniary amount by which it is limited.

In Suydam and others v. Broadnax and others, 14 Peters’ Reports, 75, n case' very similar to this, that principal was recognised by the' Supreme Court of the? United States, and wo have met with no decision other than those we shall notice, in- which a-contrary doctrine has been maintained. On the1 contrary, it is the settled jurisprudence of tho United States, that the jurisdiction of their courts is not limited or restrained by the local remedies of the different States. Robinson v. Campbell, 3 Wheaton, 212. 4 Ib. 115. There have been several cases decided by the late Supreme Court on-this subject, to which our attention has been directed; we have fully considered them- and will proceed lo> notice them.

Lowry, Curator, v. Erwin, 6 Rob. 196. In this case the court came to the? conclusion that the Circuit Court oí the United States was without jurisdiction, ratione persona. The defendant held under a sale made by tho marshal of tho United States, under the authority of an order of seizure and sale granted at the instance of a creditor against a plantation and slaves in the possession of an executor, and the court proceeded and determined that, the Circuit Court of the United States was without jurisdiction or authority to issue the order of seizure and sale against the executor.

The creditor, at whose instance the order of seizure and sale was made, ob“ tained it on an act of special mortgage on the property directed to be seized and sold, and the principal reason which is given for the want of authority in the Circuit Court to grant the order was, that no such process could issue from a State tribunal against mortgaged property in the course of administration, comprising part of the effects of a succession represented by an executor, curator, or administrator. A very careful examination, on another occasion, of a question of this hind brought us to a different conclusion, and we accordingly held, in the case of Boguille v. Faille, 1 Annual Reports, 204, that an order of seizure and sale may be granted, by a court of ordinary jurisdiction, against properly specially mortgaged in the hands of an administrator under administration. If, therefore, it be assumed that the jurisdiction of the Circuit Court is co-extansive with that of the ordinary State tribunal in all cases of law and equity, it would appear that the former had the authority to issue the order of seizure and sale in this case. The administration of the executor presented no valid objections to it.

Garrard, Executor, v. William Reed, 5 Robinson, 506. This case has no direct reference to the subject under consideration. An execution was issued on a judgment obtained against the plaintiff’s testator, without any attempt to revive or make executory the judgment, and it was held not to be legally issued.

Collier v. Stanbrough, 6 Rob. 234. In this case, which appears to have been very fully argued, and which was determined at the same term with that of Lowry v. Erwin, it was held that the Circuit Court of the United States was without jurisdiction raiione materia;, by reason of the property seized under execution being under the administration of a curator; and to the same effect is the case of Kennard v. Stanbrough, 9 Rob. 256.

In Schroeder’s Syndies v. Nicholson, 2 La. 350, it was determined that, by a voluntary cession of property by an insolvent debtor, it vested in his creditors, and was not subject to an execution issued on a judgment rendered subsequent ly to the acceptance of the sui'render.

It seems to us that the principal objection to the jurisdiction of the courts of the United States is one of inconvenience, and that the exclusive jurisdiction of the State courts is rather of apparent than real necessity. It is said that its exercise will have the effect of destroying the privileges and rights of creditors secured by our laws, for the benefit of the creditor who has the privilege of resorting to the United States’ tribunal. We are certain that there is rio legal right, privilege, or lien, which the courts of the United States would not respect in giving to the creditor the hypothecary remedy which he should enforce under their process, and which the defendant, be he executor, administrator, or curator, would be competent to assert and vindicate. If there should be any valid objections to the enforcement of the hypothecary rights, there' is no reason to believe that they would be overlooked. In other' words, there is no ground for supposing that the judicial power of the United States would be improperly exercised, any more than there is for believing that the ordinary tribunals would abuse thoir powers in ordering thu property of successions under administrators to be seized and sold under special mortgages. It may well be supposed that we aro neither insensible nor indifferent to the rights of sovereignty of the State, but we have not been under the delusion that its legislation was in all cases supreme ; and if inconvenience should result from the conflict between our own legislation and the rights which the courts of the United States are bound to maintain under the constitulution and laws made in pursuance thereof, it is equally our duty to support them. The supposed mischief produced by the paramount authority of the latter, is a necessary consequence of their supremacy on all subjects to which the legislative power of Congress extends, and the objections to it are objections to the constitution itself.

Fischer v. Blight, 2 Cranch, 397. Without going beyond the principles kid down in the case of Boguille v. Faille, before cited, it is obvious that, under the articles of the Code of Practice explanatory of the hypothecary action, we cannot hold tho circuit of the United States to be without jurisdiction ratione materice in a case of this kind, and its proceedings to be nullified by reason thereof.

That court has determined in favor of its jurisdiction, and has also considered that the case before it was a proper one for its interference in the interest of the party who sought its aid. Judgments have been rendered both in favor of the original plaintiff and Hunt, and against the administrator, as has been before said, and they must stand.

It is a very difficult task to undertake sto define and limit the authority of the United States’ courts under their extensive chancery powers, particularly in the furtherance of rights created under a system of laws like ours. We have held that the hypothecary action, like all real actions, follows the property affected by the mortgage in whosoever’s hands it may be found; and we cannot believe that, in any case, rights acquired under our laws, will, in any proceedings before them, be left without remedies, or that more difficulty will arise in this than in other cases of concurrent jurisdiction between those tribunals and those of the State. Vide Gaines el ux v. Chew el al. 2 Howard, 651.

Those rights thus secured, it would be the duty of the court to protect, as well as to control by proper means the execution of its process, so that they should not be infringed or violated; and to this end, at the instance of an administrator or executor, the equitable powers of the court would be called into action, to prevent a disturbance of a pending liquidation, or the recovery by one creditor of more than his share of the proceeds of tho common pledge.

We do not feel any apprehension of any injurious result from the concurrent jurisdiction of the State and United States’ courts. Our laws contemplate that property should be sold for the satisfaction of debts; and if the action of those charged with the administration of successions, solvent and insolvent, should be quickened by the concurrent power over them to a certain extent, neither the creditors, the debtors, nor the interests of justice, will suffer by it. t

II. It is also urgod on behalf of the plaintiff that, the order of the court directing the seizure and sale of the slaves was an absolute nullity, because it was made without notice to the party whose property was decreed to be sold, before tho court had acquired jurisdiction over the defendant by service of its process, and was unwarranted by tho law of the land.

In oxocutoiy proceedings, no citation is necessary; tho proceedings aro in rem, and notice of the order of seizure and sale is all that is necessary to be given to the debtor.

After Davis, the administrator, filed his bill, the order of sale of the 24th January was made, and it is evident that when the court made that order he, Davis, was considered to be in court, and that the order was granted adversely to him. It is impossible for us to suppose that a different state of things existed, for it is expressly mentioned in making the rule absolute, that no opposition was made to it, and the rule itself was taken on the counsel of the defendant. Levy v. Fitzpatrick, 15 Peters, 167. Toland v. Sprague, 12 Ib. 301.

The order oí the 19th of February, by which that of the 24th January was rescinded and the sale ordered to be made in New Orleans, was made at the instance of Hunt, and is entered in the case of William Hunt, complainant, v. Tobias Gibson, and T. V. Davis, curator of Claudius Gibson and others, according to the record of that case. But though entered in that case it evidently is not confined to it, for it rescinds an order of sale made in another suit, and the slaves were held under the process of the other suit.

The service of the subpoena in Hunt’s case was not made on Davis until the 26th of February, seven days after the order of the 19th of that month. The sale of the slaves took place on the 26th March in New Orleans, Davis residing in the parish of Carroll, five hundred miles from New Orleans. And in Hunt's ■case a final decree was entered on the 22d of June, 1842, against Davis, by which the proceeds of the sale were applied to the payment of his mortgage by preference over other creditors.

To this judgment Davis was a party, and this judgment was based on the fact of the sale, for it disposed in its very terms of the proceeds. The sale was made under the authority of a Court of Chancery, of property over which it had jurisdiction and of which it had the control. The defendant stands before us as a bond fide purchaser, holding under the decree. That court would never permit a purchaser to be disturbed in a case of this kind, but would maintain the validity of the sale. The proceeds have been applied to the ex-tinguishment of an encumbrance existing on property of the succession, and holding them to have been lawfully applied, as the judgment imports, the validity of the sale is ratified, so far as relates to the succession of Claudius Gibson, a party to the judgment.

III. In this ease, as has been observed, a petitory action has been brought for the recovery of the slaves, without regard to the judicial proceedings before recited, which are held to be nullities. We are not called upon to decide, as we can reach them from a very imperfectly prepared record, that they are in all respects regular; but we are not at liberty to treat them as nullities, and are bound to give effect to them as the proceedings of a court of competent jurisdiction with proper parties to them. In the language of the Supreme Court of the United States: “The jurisdiction of the court under whose order the sale was made over the subject matter, appears on the face of the proceedings, and its errors or mistakes, if any were committed, cannot be corrected or examined when brought up collaterally.” Thompson v. Tolmie, 2 Peters, 169.

It is therefore decreed that the judgment of the District Court be annulled and reversed, and that judgment be entered for the defendant, with costs in both courts.