MANLEY v. HUNT, ET AL.

JUDGES PEASE AND BURNET.

1824.

Trust estates are not liable to judgments rendered against the trustee. Thus land which has been bona fide sold, but not conveyed, is not liable to a subsequent judgment against the vendor. A sale upon execution may be stayed by Injunction. A defendant is not permitted to answer without affidavit of merits, after a demurrer has been overruled.

The facts alledged in the bill were these. That one John Lay, being owner and proprietor, and vested with the legal title to a certain tract of land, in the county of Ashtabula, contracted to sell it to one Harman. That in July 1818, Harman, not having received a legal title, sold all his right and interest in the land, bona fide, and for a valuable consideration, to the complainant, Manley. That in November following, the defendants recovered a judgment at law, against Harman. That Lay, after the recovering of this judgment, conveyed the land in question, to Harman, who conveyed the same in April, 1820, to Manley, the complainant, according to his contract. That in June, 1823, the defendant sued out execution on their judgment against Harman, and caused it to be levied on the same tract of land, and that they were proceeding to sell it. The prayer of the bill is, to be relieved from the execution and to be quieted in the possession and title.

The defendants demurred on the ground, that the matter stated in the bill did not entitle the complainant to the relief prayed for.

The question discussed at the bar and submitted to the court was, whether the judgment against Harman was a lien on the land, and authorized the defendants to proceed and sell it in satisfaction of their debt, as the legal title had been vested in Harman, after the rendition of the judgment.

By the COURT.

We are decidedly of opinion that the land in question is not affected by the lien of the judgment, although the legal title was vested in Harman subsequent to the judgment. After Lay had sold this land to Harman, he held the title in trust for him, and the land ceased to be liable for the debts of Lay. After the sale to Manley the trust inured to his benefit, and Lay became his trustee, so that the land was not liable to the debts either of Lay, or Harman. There was no necessity of passing the title through Harman, the deed might have been made direct to the complainant but as it is, his equitable rights are not affected by the course pursued, for the moment the title vested in Harman, he was seized in trust for Manley, and had he conveyed the title to a third person, for a valuable consideration, with notice, the lands would have continued charge. able with the trust, and equity would have decreed the title to the complainant.

It would be productive of much mischief and injustice, to make trust estates liable to judgments against the trustee. Such a principle never has been, and we trust never will be recognized in this state. From the moment Harman

contracted, in good faith, to sell the land to Manley, for an adequate consideration, he became a trustee for Manley, and the land ceased to be liable for his debts on after acquired judgments. It then became liable in equity to the debts of Manley, and the purchase money, if any part of it remained unpaid, might be reached in the same way, by the creditors of Harman.

The Demurrer must be overruled.

The defendants then moved for leave to answer, but not having produced an affidavit of merits and that the demurrer was not filed for delay, as the statute requires, the court were on the point of overruling the application, when by consent of the complainant, defendants were permitted to file their answers.

SPENCER, Treasurer, v. BROCKWAY.

JUDGES PEASE AND BURNET.

A sister state may sue in the courts of Ohio.

1824.

Judgments regularly obtained in other states, against defendants who have been served with process, or have otherwise appeared and had an opportunity of making a defence, are to be received as conclusive evidence, and no re-examination of the grounds on which they are rendered can be permitted; but when the defendant has not been served with process, or had an opportunity of making his defence, it seems the record is considered only prima facie evidence, and may be impeached.— If an action on the case be brought on a judgment from a sister state, a liability and breach must be averred.

The plaintiff describes himself, as treasurer of the state of Connecticut, and successor in office, to Andrew Kingsbury, late treasurer of that statė. The declaration contains two counts. The first states, that a suit was commenced in the Supreme Court of the state of Connecticut, wherein Andrew Kingsbury, treasurer of the state of Connecticut, was plaintiff, and Elias Brockway was defendant, on a bond of recognizance, made by the said Elias to the said Andrew, as treasurer aforesaid, and that such proceedings were had that the said court rendered judgment in favor of the said Andrew, against the said Elias, for the sum of one hundred dollars debt (or damage) and cost taxed at $21,90.

The second count states, that there was another suit at the court aforesaid depending in favor of Andrew Kingsbury, treasurer of said state of Connecticut. That such proceedings were had, that the said Elias being three times solemnly called, came not, but made default, and that judgment was thereupon rendered, that the said Andrew recover of the said Elias the sum of one hundred dollars (debt or damage) and cost, taxed at 21,90, which judgment remained in full force, &c. by reason whereof, the said Elias became liable to pay the said Andrew, treasurer, &c. and being liable in consideration thereof undertook, &c. that the said Elias did not pay, &c. to the defendants, damage $350.

The defendant demurred to each count of the declaration separately, and the plaintiff joined in demurrer.

The defendant craved oyer, and set out the records of both judgments, from which it appeared, that they were recovered on two forfeited recognizances, taken in consequence of an alleged violation of the penal laws of that state, and that the defendant was in court, by his counsel, when his default was entered,

and that on his application, the court exercised their chancery power by reducing the sum from $200 to $100 on each recognizance.

Webb, in support of the demurrer.

By the COURT.

We do not discover any reason why the state of Connecticut should be prohibited from prosecuting her just claims, in the courts of this state. There is not any thing in the constitution, or laws of Ohio, that requires such a prohibition, nor do we believe that it is necessary, or that it would be expedient; but if the position could be supported, it would not apply in this case, because the suit is brought in the name of an individual, and not in the name of the state, and it cannot be a matter of any importance, for whose use the money is recovered.

The second objection is equally groundless. There is nothing in the declaration from which it can be inferred, that the object of this suit is to enforce the penal laws of the state of Connecticut. If the defendant had a right to crave oyer, and if it were proper to look into the transcripts, it would be found that those laws, as far as this demand is connected with them, have been enforced, in the courts of that state.

The suit is for the recovery of a sum of money. It is founded on judgments obtained in the Supreme Court of the state of Connecticut, and not on the penal laws of that state. The objection, therefore, cannot be sustained.

The third ground of demurrer, leads to the enquiry, how far judgments recovered in sister states, are to be regarded in this state. This court has often decided, that judgments regularly obtained in other states, against defendants who have been served with process, or have otherwise appeared, and had an opportunity of making a defence, are to be received as conclusive evidence, and that no re-examination of the grounds on which they were rendered can be permitted. We believe this to be the true construction of that section in the constitution of the United States, which requires that "full faith and credit shall be given, in each state, to the public acts, records and judicial proceedings of every other state," and of the act of Congress, in pursuance thereof, which requires that they 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 states, from whence the said records are, or shall be taken." The faith and credit here spoken of, requires us to admit, not only that there is a record, and that it is what it purports to be, but also that it is just; that the money awarded to the plaintiff, is legally due, and that he has a right to recover it, without a re-investigation of his claim. Such is the effect of the faith and credit, given to it in the state, from whence it came, and such must be its effect here, or like causes do not produce like effects.

Had a suit been commenced on this record in the state of Connecticut, the defendant could not have questioned its correctness, in consequence of the faith and credit given to it in the courts of that state, and the same degree of faith and credit must produce the same results here. We are aware that a different opinion has been given, in some of the states. In Massachusetts and New York, it has been decided, that judgments obtained in other states, are only

prima facie evidence, and that the defendant, in a suit brought on such a judgment may impeach the justice of it. But it appears to us, that the provision in the constitution extends farther, and embraces the effect, as well as the admissibility of the record. Such a provision would seem to be of but little use, if it merely required the record to be acknowledged, and received in evidence, and left its operation as it stood at common law.

In cases where both parties have been before the court, and have had an opportunity of being heard, it does not require the exercise of an unreasonable degree of confidence, to conclude, that justice has been done; but where the defendant has not been served with process, or had an opportunity of making his defence, the conclusion may be different. In such cases we have considered the record as prima facie evidence, and permitted the defendant to impeach its justice, because it shews on its face, that the merits, on his side, have not been heard, and because it would not only be deciding without evidence, but presuming against probability, to take the judgment under such circumstances, as conclusive evidence, that the merits have been fully heard on both sides. In the state of New York, it has been decided that an action cannot be maintained in that state against a person not a resident, who has not been served with process, or had actual notice, (5 John. 41, Kilburn v. Woodworth-8 John. 86, Robinson v. Ward.) This question, however, does not arise on the demurrer, and it will be unnecessary to pursue it further.

The plaintiff having seen proper to treat these records as foreign records, by bringing an action on the case, the question might have been presented in a different form, by another course of pleading, but as the issue now stands, the records are to be considered as conclusive evidence, by the uniform course of decision in this court, and our enquiry must be confined to the sufficiency of the declaration.

The first count is manifestly defective. It contains no averment of liability, or promise of payment, or breach by the defendant. The demurrer, therefore, as to that count, must be sustained. In the second count, we do not discover any substantial defect.

Judgment for the plaintiff on the second count.

McMURTRY v. CAMPBELL.

JUDGES HITCHCOCK AND BURNET.

Where a sealed bill is assigned and suit brought in the name of the assignee, he must prove the assignment under the plea of non est factum.

The facts were these: In December, 1821, McMurtry executed a sealed bill to William Campbell, for sixty pounds, of the value of two hundred dollars. William Campbell assigned the bill to Matthew Campbell, the defendant, in error, who commenced an action of debt in his own name, as assignee, under the statute. A judgment by default was entered, and afterwards opened, on motion and leave was given to plead issuably. The defendant filed the plea of non est factum with a notice of infancy, and the statute of limitations, but unaccompanied with an affidavit. On motion of the plaintiff, the court ordered the notice to be stricken out, as incompatible with the terms on

which the default was opened. At the trial, the plaintiff offered the sealed bill in evidence, which was objected to, unless the plaintiff would prove the hand writing of the endorser.

The objection was overruled, and the bill read in evidence: without the proof required, to which the defendant took his bill of exceptions.

Three errors were assigned. 1st. That the defendant had a right to avail himself of his notice of infancy, and of the statute of limitations.

2d. That no consideration for the assignment, was averred or proved.

3d. That the court permitted the bill to be given in evidence, without proving the assignment, or hand writing of the assignor.

By the COURT.

The statute dispensing with proof in certain cases provides, that upon plea of non est factum offered by the person charged as the obligor, or grantor of a deed or plea of non assumpsit, or nil debet offered by the person charged as the maker of any promissory note, it shall not be necessary for the plaintiff to prove the execution of the deed or note, upon which such suit is brought, unless the party offering such plea, shall make affidavit of the truth thereof.

As this action was brought against the obligor, or maker of the sealed bill and the plea of non est factum, was not accompanied with an affidavit, it was not necessary for the plaintiff to prove the execution of the deed, nor does it appear from the record, that such proof was required. The exception taken at the trial was, that proof was not required of the assignment, or hand writing of the assignor. The statute dispenses with proof of the execution of the bill; but it does not extend to the assignment. When the bill was first offered, the parties stood on the same ground that they would have occupied, if this statute had not been in existence, and the plaintiff had proved the execution of the bill, but that testimony alone would not entitle him to recover, because it is not only necessary to show the liability of the defendant, but also the title of the plaintiff. The admission, or the proof of the execution of the bill, would establish the first point, but it could not affect the second. The plaintiff was bound to show that the right of action had passed from the obligec to himself, in order to sustain the suit in his own name, which could not be done without proving the assignment, by which the statute passes the interest, together with the right of suing in the name of the assignee.

As the case appeared before the jury, the right of the plaintiff, and the liability of the defendant, stood as they would have done, if no assignment had been made, or in other words, a debt was proved to be due from the defendant to William Campbell, on which proof Matthew Campbell was permitted to re

cover.

As the statute did not dispense with proof of the assignment in this case, and as it was incumbent on the plaintiff, not only to prove the defendant's liability, but also to show his own title, the judgment must be reversed.

The opinion of the court being for the plaintiff on this part of the assignment, it is unnecessary to consider or decide the other questions that have been discuss

ed.

Judgment reversed and cause remanded.