Page v. McKee, 66 Ky. 135

Page v. McKee

66 Ky. 135 | Ky. Ct. App. | 1867

JUDGE WILLIAMS

delivered the opinion oe the court:

Augusta Page, the wife of B. F. Page, was a child and heir-at-law of William J. Lodge, who died intestate in the State ,of Indiana, leaving a large real and personal estate therein ; also two tracts of land in Trimble county,' Kentucky. The intestate left three surviving children then arrived at majority, and the appellees, who were all minor grandchildren, by his deceased daughter, Mrs. McKee ; and all of whom, save Page and wife, then resided in Indiana.

Some time after the decease of their ancestor, Page and wife brought suit in the Jefferson circuit court, of Indiana, in which administration on his estate had been granted, and wherein the other heirs lived, for the purpose of settlement and partition, making the administrator, the adult heirs, and these minor grandchildren and their statutory guardian, parties defendants, and setting-out that the decedent, in his lifetime, had, by parol, given Mrs. Page the Trimble county lands; that, on the faith of his promise to convey the same to her, she and her .husband had gone on said lands and made valuable and *137lasting improvements, to the value of about four thousand dollars; and that it had been agreed between the adult heirs and the statutory guardian for the minors that she should still have these lands, but at the valuation then fixed on it, not including the improvements, of eleven thousand dollars, and that nothing was to be allowed for improvements; and should this prove to be more than Mrs. Page’s share of the estate, the overplus should be paid to the estate, and what it should lack should be paid to her on final settlement; and the court was asked to confirm this agreement and settlement, and perfect it by proper deed of conveyance.

The parties were brought before the court by process; the adult heirs answered, confessing the allegations, and prayed also for a confirmation, and so did the statutory guardian. The court subsequently appointed another person as guardian ad litem, and he put in the usual answer, controverting all matters detrimental to the infants, and praying that their rights be protected. After-wards, the court made another order, that, as the minors had a statutory guardian, he should be permitted to conduct and control the defense and.suit for his wards.

The court finally adjudged that said agreement and partition be confirmed, and directed that a deed of quit claim by all the defendants be made; and, in pursuance thereof, a deed by the adults in person, and the minors by their statutory guardian, was made and acknowledged and certified to this State.

Robert S. McKee, the father and guardian for these minor grandchildren of the intestate, subsequently moved to the city of Louisville, in this State, and brought with •him these minors; and Page and wife having sold the land, and the purchasers being dissatisfied with their title, they brought this suit in the Louisville chancery court, in *138which the statutory guardian joins, to compel them to execute this judgment and make proper deeds of conveyance ; they being served with process, and guardian ad litem being appointed, the court subsequently set aside the appointment, and dismissed plaintiff’s petition for want of jurisdiction, because, as it says, this is a suit for partition, and should be brought in Trimble county; and we are asked to correct this judgment.

If this be a simple suit for partition, the court was right; but if it b'e to enforce a foreign judgment of partition, and to have a conveyance accordingly, it was erroneous.

It is shown that intestate was both a citizen and domiciled in Indiana at the time of his death; that all his personal estate was there; also all his real estate, save the Trimble county lands; and that all his heirs, save Mrs. Page, were also then domiciled citizens of Indiana.

The Indiana court, therefore, had jurisdiction of all the parties and all the subject-matter of the suit, save the Kentucky lands; and whilst it could not perfect its judgment of partition by an enforced conveyance, yet the adult heirs were voluntarily bound by the judgment, and then voluntarily joined in the conveyance; and, so far as they are concerned, they are estopped from setting up any claim; but, as to the minor heirs, the matter is different.

Mr. Justice Story, in his Conflict of Laws (sec. 543, p. 914), lays down the law thus : that “ although every nation may thus rightfully exercise jurisdiction over all persons within its domains, yet we are to understand that, in regard thereto, the doctrine applies only to suits purely personal, or to suits connected with property within the same sovereignty; for, although the person may be within the territorial jurisdiction, yet it is by no means *139true that, in virtue thereof, every sort of suit may there be maintainable against him. A suit cannot, for instance, be maintainable against him to bind his property situate elsewhere; and, a fortiori, not so as absolutely to bind his rights and titles to unmovable property situate elsewhere.” And in same section he says: “A foreign court cannot, by its judgment or decree, pass the title to land situate in another country; neither can it bind such land by a judgment or decree, that, in default of the defendants in the suit conveying, it shall be conveyed, by deed of its own officers, to the plaintiffs. Such a conveyance, made by its officers, would be treated, in-this country, where the land is situated, as a mere nullity."

There can be no doubt but that ■ the conveyance of these minors, by their statutory guardian, in pursuance of said judgment, as to the Kentucky lands, was invalid and did not pass their legal title. But it appears, in this case, that, by proceedings in the Indiana courts, the other adult heirs took their part in real estate in that State, and these minor heirs were assigned their portion in personalty, money, stocks, bonds, &c., and that Mrs. Page had none allotted to her save the Kentucky lands; therefore, we are to inquire into Mrs. Page’s equity to have a proper conveyance, in pursuance to this Indiana judgment.

Story, in his Conflict of Laws (sec. 609, p. 1004), says, that the provision of the United States Constitution requiring that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State, “ does not prevent an inquiry into the jurisdiction of the court, in which the original judgment was rendered, to pronounce the judgment, nor an inquiry into the right of the State to exercise authority over the parties or the subject-matter, nor an inquiry *140whether the judgment is founded in, and impeachable for, a manifest fraud.” “ It did not make the judgments of other States domestic judgments, to all intents and purposes.”

In section 610 he says : “ As to judgments in personam, in suits between citizens, in suits between foreigners, or between citizens and foreigners, in all cases they are deemed of equal obligation, whoever are the parties.” And even among those foreign jurists, who maintain a different opinion, as Boullenois, they concede, that “if the judgment is rendered in a suit between a native of the country where the judgment is pronounced, and a foreigner, in such a case, if the foreigner be the plaintiff, then the judgment ought to be conclusive.”

As the Indiana court had jurisdiction of that portion of the' estafe, real and personal, therein, and of the parties, and as Mrs. Page brought the suit, the judgment is conclusive upon her as to her interest in the Indiana real estate and the personalty. Then her suit here is .by no means for a partition; for, as to this, she is already concluded ; but it is just what it purports to be, a personal suit against those minor heirs to compel them to surrender to her their legal title to one fourth of the Kentucky lands, in pursuance of the Indiana judgment; they having received, by proceedings in the Indiana court, their full share of their ancestor’s estate, and this foreign judgment is at least prima facie good and valid as to the partition, though not good as to the conveyance ; and our courts should enforce the equities growing out of it, at least until it is successfully assailed, which, so far from being the case, all the evidence goes to sustain it, and strengthened, as it still is, by the approval of their statutory guardian, even in this suit.

*141From section 93 to 105, Civil Code, inclusive, are defined the classes of suits that must be brought within certain local jurisdictions, to none of which classes this suit belongs. Section 106 provides, that “ every other action may be brought in any county in which the defendant or one of several defendants resides, or is summoned.'''' Then, unless a suit falls within the classes designated by the previous sections, it comes within this general class where the defendant’s locality gives jurisdiction. We are clearly of opinion, therefore, that those defendants, being within the jurisdiction of the chancellor, that he should have proceeded to a final adjudication, and, by proper orders, directed a conveyance from those minor defendants, and perfected such order by proper deeds of quit claim; and to that end, on the return of the cause, he should appoint another 'guardian ad litem, and then proceed to final judgment as herein indicated.

Wherefore, the judgment is reversed.