Jesse Carr, by David A. Monaghan, Guardian, v William Wellborn, 1 Dallam 624

MORRIS, Justice. —The plaintiff Monaghan, guardian of Carr, filed his bill in the district court on the 17th of February, 1843, and alleges the pendency of a suit in the chancery court for the sixth district of the northern chancery division of the State of Alabama, held in Huntsville on the third Monday after the fourth Monday in November, 1840, commenced by original bill some time in the year 1837, wherein the same parties as are now in this court were plaintiff and defendant.

In which said bill it is substantially averred that Jesse Carr is and always has been a man of extremely weak and unsound mind, so as to be and always to have been incapable of managing his own affairs and especially incapable of making valid contracts.

The bill sets forth the inquisition of lunacy taken before the proper tribunal in the State of Alabama and the action of that court adjudging said Carr to be non compos, or an idiot; the appointment of said Monaghan as the guardian both of his person and property; also, that about ten years before filing of said bill, Carr was possessed in his own right of certain negro slaves (naming them) ; that the said Wellborn, operating on the feeble mind of Carr, taking advantage of his extreme mental imbecility, by fraudulent means and contrivances induced him to convey the said slaves to said Wellborn under a fraudulent sale; that the said Wellborn has remained ever since m possession of said slaves, whose number has increased by births from the females.

The petition prays that the sale be set aside as null and void and the negroes in controversy be decreed to Monaghan, as guardian of Carr.

Upon this petition, after full answer by defendant and a tedious litigation of two years, a decree was rendered by the chancellor of said court in the State of Alabama, in November, 1840; wherein “it was ordered and adjudged that Jesse Carr recover of said Wellborn the sum of $967.90, with the slaves mentioned in his bill; and that all title of and to said slaves be divested out of Wellborn and vested in complainant Carr; the said slaves to be delivered to and held by his guardian, the said David A.

Monaghan, for the use and benefit of said Carr.” The whole record in this case is made a part of the plaintiff’s petition in the court below; which goes on and alleges, that soon after the determination of said cause, or during its pendency, the defendant, Wellborn, secretly and fraudulently conveyed away the said slaves from the State of Alabama to the county of Red River, in this Republic, where he resides; and continues to hold them and their increase without title and in bad faith, and refuses to deliver them to the plaintiff in this action.

To this petition the defendant filed a demurrer and also, under the rule of court, an answer to the merits. The demurrer was sustained by the court below and the plaintiff’s bill dismissed with costs; from which judgment an appeal has been taken to this court. The points raised by the demurrer are: 1. That a guardian, appointed in a foreign country, can not maintain a suit for his ward in our tribunals. 2.

That by our laws, no suit founded on a judgment or decree of a foreign tribunal can be maintained in our courts, with certain exceptions; and that the judgment or decree which is the foundation of the plaintiff’s action does not fall within those exceptions. Upon the first point we must confess that much difficulty and embarrassment, under the peculiar circumstances of this case, have arisen in our minds.

In examining the opinions of jurists on this subject, we find names eminent in the science of the law enrolled on opposite sides, and in support of their respective opinions, arguments so plausible in themselves and so well based on the foundations of reason and law and logic, that the mind rests suspended in doubt as to a correct conclusion.

The civilians almost without exception agree in the conclusion that the authority of the guardian over the person and personal, or movable property of his ward extends to foreign countries, and that he is entitled to assert his claims over the movable property of the ward and sue for his debts in a foreign country, without having any confirmation of his guardianship by the local authorities; whilst some have gone to the extent, of permitting and recognizing the same right over the immovable property.

In the English courts, at least one case can be found where the first proposition has been sustained; although the current of modern cases in their courts seems to have fallen into what now is the fixed channel of the large mass of American decisions, “that the rights and powers of guardians are strictly local, and not entitling them to exercise any authority over the person 'or personal property of their wards in other States, upon the same reason and policy that has circumscribed The rights and authorities of foreign executors and administrators, who are not permitted to sue or be sued in their official capacity in any country, foreign to that from whence they derive authority; but to maintain any suit, new letters of administration must be obtained in accordance with the laws of that country in whose tribunals they may wish to institute an action.” The authorities on this subject are now so numerous that they scarcely need a reference to them; although upon examination it will be found that the general rule has had its exceptions and distinctions which have been supported by reasons the most cogent and forcible.

In 8 Louisiana, in the case of Chiapella v.

Com-prey et al., it has been decided, “that a tutor, or guardian regularly-appointed in another State, or foreign county, has authority to sue for, recover, receive or take possession of property situated in that State, belonging to the inheritance of his ward, without confirmation by any of the tribunals of that State.” The court in that instance say, “that though their decisions, with regard to foreign testamentary executors having no right to sue except after confirmation by their courts, might well be questioned, still, being' settled by previous adjudication, they will not now inquire into it.” And in conclusion the reason is given in general terms, “as arising from the distinction between the rights and duties of tutors and guardians and executors.

The office of the latter is of short duration and confined solely to the property of the estate; whilst the former have the guardianship and protection of minors committed to their charge, and are bound to provide for their maintenance for a length of time. They would be unable to perform their duties if the possession of the estate which they have a right to administer be withheld from them.” In the case of Holmes et al. v. Rensen et al., Executors of Clason, cited in 4 Johns. Chan.

Rep., 460, it was held, “that the assignees of a foreign bankrupt might sue in that State (New York) for debts due to the bankrupt’s estate, either as such assignees or in the name of the bankrupt.” Although this case may not be precisely in point, still in many of its bearings and much of the reasoning of the learned judge it will be found parallel in principle with the case at bar.

The general grounds of international law, public polity, and general comity between nations, which form the basis of the conclusions at which he arrives, are alike applicable to this case, and prove at least that the broad rule laid down with regard to persons deriving their authority by local law being confined strictly within the limits of the jurisdiction from whence they derive their authority, not only admits of exception, but also of extension, when reason and justice require it.

Organized as our system is on the principles of the common law, both reason and prudence should lead to adopt decisions of courts whose system is the same; especially when supported by the authority of reason and the dignity of names, eminent for their proficiency in science and wisdom and their elucidation of the principles of the common law.

Much less would we attempt, in the infancy of our jurisprudence, to decide between- the conflicting opinions of civil and common law jurists on so difficult a question. “Non nostrum tantas componere lites.” Enough that we should follow in the beaten track, guided by the lights which they have shed, to conclusions correct in principle, guarded by precedent, and just in their effects. Admitting, then, that the decision of judges of the common law courts on this subject be correct, and that we adopt them as our own, we have seen that even with them there are exceptions and distinctions, by implication.

Are there none in express terms ? In

section 516, page 432, Story’s Conflict of Laws, we are called on to note a distinction which is rather in the nature of an exception to the general rule which has been before stated.

He says: "If a foreign administrator has in virtue of his administration reduced the personal property of the deceased there situated into possession, so that he has acquired the legal title thereto according to the laws of that country, if that property should be afterwards found in another country or be carried away and converted there against his will, he may maintain a suit there, in Ms oivn name and right, personally, without taking out new letters of administration; for he is to all intents and purposes the legal owner thereof, although he is so in the character of trustee for other persons ; and so with regard to specific legacies,” etc.

I might stop at this point, as being conclusive on the question before us for consideration, but for the fact that the words of the learned author might lead to the conclusion that a reduction of the property into “absolute and positive possession” was necessary before the right of the administrator would be recognized. Let us see if such be his meaning, or such the conclusion to which reason and law should lead us! The judgment or decree on which the present action is founded wa'. in the alternative, for the specific property claimed in the bill; or, if that could not be reached, for its value.

It was in its terms and from its very nature a judgment in rem; and such judgments upon principles of comity, international law, and reason are final and conclusive everywhere. Story’s Con. of Laws, p. 495, secs. 591, 592. Even were this a judgment in personam, which has been held in some courts both of the United States and England to be only prima facie evidence of that which it purports to adjudge or decide, still, under the form and in the manner in which this case is presented to our consideration, it could not be attacked.

The extreme limit to which any of the courts above mentioned have gone in examining the judgments of foreign tribunals in fact, although from the general expressions used in their decisions an implication to a greater extent could be drawn, is, “that it must be shown that such foreign tribunal has jurisdiction over the subject matter and the person; that due notice had been given to the parties; or that it was procured by fraud, founded in mistake, or irregular and bad by the local law, rei judicatae.” Story’s Con. of Laws, p. 507.

The judgment or decree which is the basis of this action, together with the record of the cause in the court wherein it was decided, having been made a part of the petition, the demurrer of the defendant, by admitting its correctness, would prevent the possibility of those questions arising now; and so far as the present position of the case is concerned, the judgment would be and is deemed conclusive as to the rights of the parties, whether it be in rem or in personam, unless some of the causes above enumerated were shown to exist upon the face of the decree, which has not been attempted to be done.

That judgment divests the property in the negroes out of Wellborn and vests it in Carr (the idiot), and vests likewise the legal title and possession in Monaghan, as trustee for Carr. Monaghan had before that time, by his appointment from the proper court as guardian for Carr, been clothed with all the rights of his ward, in possession or in action. This was a right in “action,” which when established in a competent tribunal, became merged in the judgment and vested as an absolute right in him personally.

Thus when a judgment is obtained by an administrator against a debtor, in the court to whose jurisdiction he is accredited, it will give the right to such administrator to maintain a personal suit against the debtor in any other State; because the judgment would as to him merge the original debt and make it personally due to him, in his own right; he being responsible therefor to the estate. Story’s Con. of Laws, 522, p. 437.

If this be correct law as to debts, it is equally applicable to “specific recovery of specific property;” and the right of an administrator to such recovery, when established by a competent tribunal, would merge the former inchoate right and give it personally to him; in which event he might maintain a suit in his own name in a foreign tribunal.

With the strict rules, as applicable to administrators, we find that the right would exist; a fortiori then should it more readily be extended to guardians, whose rights and privileges, as well as those of their wards, are the special objects of the care and protection of the courts of all countries.

The guardian in the case before us has prosecuted his inchoate right in a competent tribunal, having jurisdiction over the person and subject matter in controversy; he has obtained his decree, which merges the former right and vests it personally in him; and he therefore falls clearly within the distinction and is entitled to maintain his action. The second ground of demurrer is urged under the second

section of

an act of our Congress, entitled “An act creating a system of bankruptcy and regulating the collection of foreign debts.” Texas Laws, vol 5, p. 44. The

section reads in the following words: “That no suit, proceeding, judgment or decree shall be brought, prosecuted or sustained in any court or judicial magistracy of this Republic, on any judgment or decree of any court or tribunal of any foreign nation, State or territory; this Republic not being bound by any international law or comity to give credence or validity to the adjudication of foreign tribunals whose measures of justice aid rules of decision are variant and unknown here; but this provision is in ‘no degree’ to affect the validity or obligation of contracts, engagements or pecuniary liabilities originating abroad, or the original evidence, testimony or proof to establish the same; neither shall this provision extend to, or embrace any foreign judgment or decree, for specific property or recovery, introduced as the basis of a public sale for the transmission of title, or the record or memorial of any link or muniment of title to specific estate, all of which shall depend upon the present law and usages of the Republic; and this provision shall not in any manner relate to or affect the determination of courts of admiralty and maritime jurisdiction abroad, proceeding in rem and according to the laws of nations.” The judgment or decree on which this action is founded is, under the demurrer, to be deemed conclusive between the parties, as we have before stated.

That judgment divests the property out of appellee in this court, who was the defendant below, and vests it in the appellant. It is for “specific estate” and forms of itself the muniment of the appellant’s title, coming, both in terms and spirit, within the letter and intent of the statute. It is the “record or memorial of a muniment of title” of the same nature but higher dignity than a deed.

That portion of the judgment which relates to moneyed transactions between the parties and decrees a recovery to the plaintiff of a certain amount of money, must fail under the statute; but as to the specific estate and recovery, it is well brought and must be sustained. Both grounds of demurrer, then, being untenable, we think that the court below erred in sustaining it. It is therefore ordered and adjudged that the judgment of the court below be reversed, the demurrer overruled, and the cause remanded to proceed upon the bill and answer. Reversed and remanded.