33 Tex. 297 | Tex. | 1870
Lead Opinion
The principal question raised by the pleadings and the evidence in this case is, whether a non-resident creditor, who has obtained his judgment in another State, can successfully assail and set aside a voluntary conveyance, made by his insolvent debtor, of his lands in this State, and subject them to the payment of his demand.
In April, 1849, the plaintiffs, now defendants in error, recovered a judgment in the State of Louisiana against Samuel Ward, as the indorser of a bill of exchange. On this unsatisfied judgment, in Louisiana, they again recovered a judgment in New York, in May, 1858. The demand still remaining unsatisfied, the judgment debtor in New "York, in April, 1856, made a voluntary conveyance to his son, of six hundred acres of land which he owned in Texas; and the son, pending the suit in New York, in Octobei’, 1857, made a conveyance, without consideration, of the same land to a stranger, charged with notice of all the facts connected with the alienation of the land and the indebtedness of the judgment debtor of the defendants in error.
By an original attachment, sued out in the county of Colorado of this State, where the six hundred acres of land were situated, the defendants in error commenced their suit upon their judgment obtained in the State of New York. This suit was commenced on
It may be assumed that whatever privilege, benefit or advantage. a resident citizen may derive from the provisional remedy of attachment, which has been created by the attachment law of this State, is equally accessible and available to any citizen of any State of t the United States, because the Constitution of the Unitéd States has declared, that “ the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.” All the civil rights and obligations conferred or imposed by the laws of a State, upon its own citizens, may be enjoyed and must be submitted to by the citizens of other States, whenever the action of a State tribunal is invoked for their adjustment, or enforcement. It is not a matter of mere comity among States, but it is a constitutional guaranty.
Whatever of right, then, exists in a resident citizen to proceed by attachment upon such a state of facts as is presented by this record, exists, also, in any citizen of the United States who may seek the interposition of the courts here to' enforce his just or equitable demands. If, therefore, a resident citizen, who holds a just claim against a non-resident or absent debtor, can proceed by attachment against such non-resident or absent debtor, whatever be the character of the claim, provided it bo a-just one; so may a non-resident creditor proceed in the same way, when he shall have complied with the requisitions of the attachment laws. The same verification by oath of the amount and justice tf the demand is necessary in either case, with a statement of the existence of any one of the causes enumerated in the statute, to warrant the issuance of the attachment. But then, in either case, there must be property of the absent debtor within the territorial jurisdiction of ■ the court to sustain the proceeding. If neither the person, nor any property of the defendant be found within the ter
But it is plausibly and ingeniously argued, that before the voluntary conveyance can be contested by the creditor, he was bound to get a judgment, upon his New York judgment, in this State,
There are different kinds of lien recognized in the jurisprudence cf most, if not all of the American States—the common law lien. which is the right to retain the possession of the property of
The case of Wiggins and others v. Armstrong and others, Johns. Oh., 149, is not a parallel case with the present. It was not a proceeding against an absent or absconding debtor. Nor
It is needless to refer to decisions of the various State courts to support the doctrine, that the levy of an attachment upon the property of a debtor operates as a lien. Nearly all, at least a large majority of them, distinctly recognize it. And if it operates as a lien, it will hold it till judgment and until execution can issue; and if it be in a forum, which dispenses both law and equity in the same suit, every obstacle and obstruction to the satisfaction of the judgment, to the full extent of the property attached, can he .removed out of the way,. (See Scott v. McMillen, 1 Littell’s Ky. Reps., 302.)
Another question is raised in this case: it is founded upon the exclusion of-the testimony of Samuel Ward, the principal defendant and party to the record, and of his wife, Lucy Ward, whose depositions had been taken in favor of A. L. Ward, a co-defendant, and the alleged fraudulent alienee of Samuel Ward, the insolvent debtor. It is insisted in argument that the rule of evidence announced by this court in the case of Rogers & Oliver v. John M. Patterson, at the Galveston term, 1869, is carrying the principle of exclusion beyond its rational limits, as recognized by the more modern decisions. In Rogers & Oliver v. Patterson, it was announced that a party to- the record was incompetent as a witness for his co-suitor; that this was a common law rule—a rule which had obtained for a time whereof the memory of man runnelh not to the contrary. Phillips on Evidence, volume 1, p. 29, says : “■ The general rule formerly was that a party to the record, in a civil suit, could not be a witness at the trial, for himself or for a joint suitor, against the adverse party.” So says Mr. Starkie. Mr. Greenleaf, volume 1, section 829, says: “The general rule of the common law is that a party to the record, in a civil suit, cannot be a witness cither for himself or for a co-suitor in in the cause.” So- says Mr. Blackstone. Mr. Greenleaf. fur
Wherefore, the judgment of the district court is affirmed.
Affirmed.
Dissenting Opinion
I respectfully dissent from the opinion of the majority of the court in this case.
There are three grounds, upon either of which I am of the opinion that the judgment below should be reversed.
First—It is a general rule of law, clearly indicated by the ele- ■ mentary writers, such as Kent and Story, and asserted in all the decisions of the courts of the United States.(with one exception hereafter to be noticed), that a creditor cannot attack the voluntary conveyance of his debtor until he has first prosecuted his claim •
Second—I think it was erroneous in the court below to permit two distinct and separate actions to be carried on in the same suit. These two separate actions were, first, a suit attacking the validity of a voluntary conveyance, and a suit upon two foreign judgments. Each of these two suits was entirely different in its nature from the other, and the necessary parties defendant in each were different from those in the other. In the first case the: necessary parties defendants were simply A. L. Ward, and', Hughes, his assignee. In the second case the only necessary party-defendant was Samuel Ward. As an evidence of the evil of," prosecuting the two suits in one, the evidence of Samuel Ward,, who was a disinterested and competent witness in the first above mentioned suit, was ruled out, and the defendants therein, deprived! of the benefit thereof, simply because he was a party defendant in the conglomerate suit.
Third—It appears by the record that in the progress of the suit the attachment was quashed, thus leaving the court without jurisdiction in the matter, because it was only by the attachment that the court acquired jurisdiction in the case. It may be urged that this; attachment was wrongfully quashed, but this is not so„
For these reasons I am clearly of the opinion that the judgment below should have been reversed. •
Reversed.