GREEN V. VAN BUSKIRK, 74 U. S. 139 (1868)

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U.S. Supreme Court

Green v. Van Buskirk, 74 U.S. 7 Wall. 139 139 (1868)

Green v. Van Buskirk

74 U.S. (7 Wall.) 139


1. A., B., and C. were residents and citizens of New York. A. being indebted to both B. and C., and having certain chattels personal in Illinois, mortgaged them to B. Two days afterwards, and before the mortgage could be recorded in Illinois, or the property delivered there, both record and delivery being necessary by the laws of Illinois, though not by those of New York, to the validity of the mortgage as against third parties, C. issued an attachment, a proceeding in rem, out of one of the courts of Illinois, and, under its laws, in due form, levied on and sold the property. B. did not make himself a party to this suit in attachment, though

Page 74 U. S. 140

he had notice of it, and by the laws of Illinois, a right to take defense to it, but after its termination brought suit in New York against C. for taking and converting the chattels. C. pleaded in bar the proceedings in attachment in Illinois. The New York courts, holding that the only question was B.'s property in the chattels on the day of the attachment; that the existence or nonexistence of such property was to be decided by the law of the domicile of the parties, to-wit, New York; and finally that by this law the property was complete in B. on the execution of the mortgage, adjudged, that the proceedings in attachment in Illinois were not a bar. But

Held by this Court that by such judgment, the "full faith and credit" required by the federal Constitution had not been given in the State of New York to the judicial proceedings of the State of Illinois, and that so the judgment below was erroneous.

2. The fiction of law that the domicile of the owner draws to it his personal estate wherever it may happen to be yields whenever, for the purposes of justice, the actual situs of the property should be examined.

3. By the laws of Illinois, an attachment on personal property there will take precedence of an unrecorded mortgage executed in another state where record is not necessary, though the owner of the chattels, the attaching creditor, and the mortgage creditor, are all residents of such other state.

The Constitution of the United States declares that "full faith and credit" shall be given in each state to the judicial proceedings of every other state, and that Congress may prescribe the manner in which such proceedings shall be proved and the effect thereof. Congress, by act of 1790, did accordingly provide that they should "have such faith and credit given to them in every other court of the United States as they have by law or usage in the court from which they are taken."

With these provisions in force, one Bates, who lived in Troy, New York, and owned certain iron safes in Chicago, Illinois, in order to secure an existing debt to Van Buskirk and others, executed and delivered (in the State of New York), to them, on the 3d of November, 1857, a chattel mortgage on the safes. Two days after this, one Green, 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

Page 74 U. S. 141

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 citizens of New York.

It was admitted on the record that the proceedings in attachment were regular and in conformity with the laws of Illinois; that the cases of Martin v. Dryden and Burnell v. Robertson, reported in the Illinois reports, [Footnote 1] rightly explained those laws; 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 received notice of the mortgage, and the claim under it, and Van Buskirk and the others, 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 by the laws of Illinois to do.

By statutes of Illinois, [Footnote 2] any creditor can sue out a writ of attachment against a nonresident debtor. Under this writ, the officer takes possession of the debtor's property. If the debtor cannot be served with process, he receives notice by publication, and if he does not appear, the creditor, on proving his case, has judgment by default, and execution is issued to sell the property attached. These statutes further enact, [Footnote 3] that mortgages of personal property are void as against third persons, unless acknowledged and recorded, and unless the property be delivered to and remain with the mortgagee.

In this state of the law in Illinois, Van Buskirk sued Green in one of the inferior courts of New York, for taking and converting the safes, sold as already mentioned under the attachment. Green pleaded in bar the attachment proceedings in Illinois. But the court held that the law of New York was to govern the case, not the law of Illinois, though the property was situated there, and that by the law

Page 74 U. S. 142

of New York the title to the property passed on the execution and delivery of the mortgage, and took precedence of the subsequent attachment in Illinois. This judgment being affirmed in the highest court of the State of New York, Green, assuming that the "faith and credit" which the judicial proceedings in courts of Illinois had by law and usage in that state, were denied to them by the decision just mentioned, took a writ of error to this Court, conceiving the case of fall within the 25th section of the Judiciary Act, which gives a writ in cases where, in the highest state court, a clause of the Constitution of the United States is drawn in question, and the decision is against the right, title, or privilege specially set up.

The case having got here, a motion was made in December Term 1866, to dismiss it for want of jurisdiction; the ground of the motion having been, that the only defense set up in the state court was, that the safes at the time of the seizure and sale belonged to Bates, and that by such seizure and sale Green had acquired his title; that thus the only issue tried and determined in the New York court was the right of property and possession at the time of the seizure. [Footnote 4]

But this Court overruled the motion to dismiss, and held, that while the question whether the proceedings in the Illinois court had the effect which Green asserted for them, was one to be decided after argument on the merits, yet that the effect which those proceedings had there by law and usage of that state, was a question necessarily decided by the New York court, and decided against the claim set up by Green under the provision of the Constitution quoted ante on page <|74 U.S. 140|>140; and that so the case was properly in this Court for review.

It was now here for such review; a review on merits.

Page 74 U. S. 145

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