3 Ga. 426 | Ga. | 1847
By the Court.
delivering the opinion.
The facts in this case are as follows. Lucy Clements died testate in the State of Virginia, having, in her will, appointed an executor, who qualified and' took upon himself the execution of the trust, according to the laws of that State. The plaintiff in error, H. M. Latine, being a bond creditor of the testatrix, instituted suit, and obtained a judgment against the executor in Virginia. The testatrix having effects in this State, Meriwether Clements, the defendant in error, applied to, and obtained from, the Court of Ordinary of Franklin county, letters of administration with the will annexed, upon her estate. The plaintiff in error brought an action of debt against the administrator with the will annexed, on the judgment against the executor, from the State of Virginia. The judgment, on the trial, being tendered in evidence by the plaintiff, was demurred to, on the ground that no action will lie in this State against the administrator with the will annexed, upon a judgment in Virginia against an executor to the same will, and the plaintiff must resort to an action upon the bond upon which that judgment was founded. Judge Dougherty, presiding in the Court below, sustained the demurrer. To that decision, the plaintiff in error has excepted, and thus the main question in this case is made.
There is, however, another question made by the bill of
It may be stated, as a general proposition, that judgments rendered by a court of competent jurisdiction, and not tainted with fraud, are conclusive upon parties and privies. There are limitations to this general rule which I need not now stop to notice. It is also true as a general rule, that an action may be sustained upon a foreign judgment, to enforce it in a different jurisdiction. The weight of authority, in England, is to the effect, that a fereign judgment in personam, rendered without fraud, by a court of competent jurisdiction, is not only prima facie but conclusive evidence, of a debt due. There, however, as to this point, the authorities are in conflict. See 1 Greenl. Ev. 604, 605, 606, 613; 1 Barn. & Adolph, 459; 2 id. 951; 3 Sim. 458; 8 id. 279, 302; 5 Clark & Finnell, 1, 20, 21; Story Conf. Laws, 545 to 550; 2 Swanst. note, 326, 327; Cas. Temp. Hard. 89; 1 Vesey R. 157. That a foreign judgment is not conclusive, see Doug. 1; Willis R. 36, note; 11 East R. 118; 3 Swanst. R. 703, 711, 712; 2 H. Black. 410; Doug. R. 6, note 3.
The general doctrine maintained in the United States is, that foreign judgments in personam, are prima facie evidence, but that they are impeachable. How far, and to what extent, they are liable to impeachment, does not seem to be settled. See 1 Greenleaf Ev. 614; Story Conf. Laws, sec. 608; 2 Kent Com. 119, 121; 1 Phil. Ev. Cow. & Hillnotes, 353. The regard which the courts of one sovereign State pays to judgments rendered in the courts of other States, is founded in justice and expediency. Comity between States is necessary to commerce, progress in civilization, security of property, and national independence. Hence, for the most
By the principles stated, we are conducted to the conclusion that the judgment from Virginia, upon which this action was brought, upon general principles, but more especially by the constitution and laws of the United States, is put upon the footing of a domestic judgment as evidence, and that in Georgia it is entitled to the same faith and credit that it receives in Virginia. The next inquiry, therefore, is, what faith and credit is it entitled
The term privity, denotes mutual and successive relationship to the same rights of property. 1 Greenl. Ev. 590, 228. There are privies in estate, privies in blood, and privies in law. The last class, to wit, privies in law, are also designated as privies in representation, as executors and testator, administrators and intestate. If there is privity in the case before us, it is the privity of representation. There was privity, unquestionably, between the testatrix, Mrs. Clements, and her executor. So there always is between executors and administrators, and their testator or intestate. Before proceeding further, it may be proper to state, that the execu-' tor derives all his power from his appointment in the will; that is the law of his action; he represents the person of the testator, and acquires the legal title to the whole of his personal estate; he can sue and be sued, and has the right of defence co-equal with that of the testator, whilst in life ; he is, emphatically, the personal representative of the testator; his duties are not imposed by law, and his powers are not derived from the Ordinary, they are delegated to him by the testator. 2 Wills. Ex’rs. 664 to 681; Nap vs. Van Swearengen, 7 Sergt. & Rawle 192
Now, an administrator de bonis non, is the only representative of
Is the law of this case different, because of the fact that it is not the case supposed ? This is the case of a will, and an executor, and a judgment against him in Virginia, and an administration with the will annexed in Georgia. The administration in Georgia is necessary, because the Virginia executor has no power to act in Georgia; the two States are sovereign, and as to each other, foreign. But in this case the same things are true as stated concerning the hypothetical case. The will is the law as to both
It does not appear from this record that there, is any provision in Mrs. Clements’ will, in relation to real estate, in conflict with any law of Georgia relative to that species of property. The conclusion therefore that the laws of Virginia govern the execution of this will in Georgia, is a legitimate one. This reasoning is to establish privity, and is aside from the previous view of the subject, taken under the constitution and laws of the United States.
Again, the executor in Virginia represented the person of the testator, with all rights of defence against the plaintiff’s demand which he could have had if in life. That being the case, a judg
The courts here will presume that the court in Virginia having jurisdiction, did its duty, and also that the executor did his, and therefore that the judgment was rightfully rendered; and, being authenticated,according to the Act of Congress, it appears before this Court, and did appear before the Court below, as a valid, subsisting judgment.
The case of Lightfoot vs. Bickley, reported in 2 Rawle R. 431, relied upon by counsel for the defendant in error, establishes the doctrine that a judgment obtained against an administrator in one State will not support an action against another administrator in a different State; because, in contemplation of law; there is no privity between them. The case relied upon from South Carolina, 2 Hill Ch. R. 611, was also between administrators, and recognises the same doctrine. It is also admitted by Mr. Story in his Conflict of Laws ; also ruled in the case of Yates vs. Gough, Yelverton R. 33. These authorities I do not controvert; and remark about them, that the case of two administrators, each deriving his authority from the Ordinary of different States, is very different from this case, where there was an executor, and an administrator with the will annexed, both deriving their authority from the testator through his will. In the former case it is admitted that there is no privity, and in the latter I have endeavoured to show that there is privity. Indeed, inasmuch as those cases went upon the ground that there was no privityj the inference is a fair one, that in cases where there is privity the action will be sustained. But my object in referring to the case in 2 Rawle, was to quote the opinion there expressed by Chief Justice Gibson, “ that if the administrator represented the jperson of the intestate, without qualification or restriction, the argument in favour of the sustainability of the action would be incontestable.” But, the executor of Mrs. Clements did represent the person of his testatrix ; therefore, upon the authority of this able Pennsylvania jurist, the action is sustainable upon this judgment. Reverse the position of this case — suppose the' action had been brought, not upon the judgment but upon the original bond on which it is founded ; could not the defendant have plead, that by the judgment rendered on it against the executor in Virginia, it had passed in rem adjudicatam, and was extinct ? The question raises serious doubts, to say the least of it. If such a plea be a good plea, and at the same time no action can be sus
But we are not wholly without authority to sustain our judgment,, in this case, as I will proceed to show. There are cases analagous in principle to this case, decided in England. At common law, an administrator de bonis non could not have scire facias upon a judgment obtained by the original executor or administrator ; and the reasons given are, that the administrator de bonis non comes in paramount to the judgment, and is not a party thereto. But now by Statute 17, Car. II. ch. 8, sec. 2, “ where any judgment after a verdict shall be had, by or in the name of any executor or administrator, in such case an administrator de bonis non may sue forth a scire facias, and take execution on such judgment.” Schley Dig. 246. This statute is of force in Georgia ; under it, it has been determined in England, that where an executor or administrator obtains a decree and dies, the administrator de bonis non may revive the decree. 1 Wills. Ex’rs. 644; 2 Vernon 23.
But although this was the rule of the common law as to judgments by executors and administrators, such was not the rule as to judgments against them; for in these last cases the creditor might have scire facias against the administrator on them. The reason given is, that the administrator de bonis non comes in in place of the testator, and is liable for his debt — in other words, there is privity, between the executor and the administrator de bonis non. The case of Norgate vs. Snape, W. Jones R. 214, and also reported in Croke Car. 167, determines this principle. In that case, a man recovered in debt on obligation against an executor; the executor died intestate, and administration de bonis non was taken; the creditor sued out scire facias against the administrator de bonis non; he pleaded plene administravit; the plaintiff replied that he had assets of the testator, and there was a finding for him. It was then moved to arrest the judgment, on the ground that the judgment against the executor was determined by his death without will, and therefore there was no privity to authorize the scire facias. Jones, Whitlock & Crolce, Js, said, “ It seems that this is well enough, for there is a difference between a judgment by and against an executor.” Judgment was given on the motion accordingly. This case, in principle, is a direct authority, and is like the one at bar precisely, except that instead of a scire facias to
So also it has been decided by the Court of Errors of New York, that a writ of error would lie to reverse a judgment against an executor in favour of an administrator de bonis non. That could not be, unless he is injured by the judgment and the record shows it, or is a party or privy to it; for no other persons can bring the writ of error. 8 Cowen R. 333; 1 Arch. Pr. 209. Further, “it seems to be clearly settled,” says Chief Baron Gilbert, “ that if an administrator durante minore cetate of an executor, brings an action and recovers, and then his time determines, the execiftor may have scire facias on that judgment. 1 Wills. Ex’rs. 329; Bac. Abr. title Ex’rs. (B. l.) 3, vol. 3, p. 18; 1 Roll Abr. 888, 889; Croke Car. 227; 2 Brownl. R. 83; 1 Vernon R. 25.
So, if a man obtain judgment against an administrator durante minore mtate, of an infant executor, and afterwards the execcu1;or comes of age, a scire facias lies against him on the judgment. This case we hold analagous to the case at this bar. 1 Wills. Ex’rs. 336; Sparks vs. Crofts, 1 Ld. Raym. R. 265.
From all which, we are led to believe that the action in the Court below ought to have been sustained. Let the judgment he reversed.