# Green v. Van Buskirk (72 U.S. 307)

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## Dissenting Opinion

    Nelson

## Linked case(s)

Tillinghast v. Van Buskirk
United States Supreme Court
72 U.S. 307
Hannibal Green v. Morris S. Van Buskirk
No. 312 and 313 Argued: April 12, 1867 --- Decided: April 22, 1867
MOTION to dismiss a writ of error to the Supreme Court of the State of New York.
The Constitution of the United States declares (Section 1, Article IV) that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State; and that Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
Under the power here conferred, Congress, by act of 1790, provides that records, authenticated in a way which it prescribes, shall '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 this provision of the Constitution and this law in force, Bates being the owner of certain iron safes at Chicago, in the State of Illinois, on the 3d day of November, 1857, executed and delivered, in the State of New York, to Van Buskirk and others, a chattel mortgage of them. On the 5th day of the same month Green caused to be levied on the same safes a writ of attachment, sued by him out of the proper court in Illinois, against the property of Bates. The attachment suit proceeded to judgment, and the safes were sold in satisfaction of Green's debt. Van Buskirk, Green, and Bates, were all citizens of New York. Green's attachment was levied on the safes as the property of Bates, before the possession was delivered to Van Buskirk, and before the mortgage from Bates to him was recorded, and before notice of its existence.
Van Buskirk afterwards sued Green, in the New York courts, for the value of the safes thus sold under his attachment, and Green pleaded the proceeding in the court of Illinois in bar of the action. In this suit thus brought by him in the New York courts, Van Buskirk obtained judgment, and the judgment was affirmed in the highest court of the State of New York. From this affirmance Green took a writ of error to this court, assuming the case of fall within the twenty-fifth section of the Judiciary Act, which gives such writ in any case wherein is drawn in question a clause of the Constitution of the United States, and the decision is against the title, right, or privilege specially set up. His assumption was that the faith and credit which the judicial proceedings in the courts of the State of Illinois had by law and usage in that State, were denied to them by the decision of the courts of New York, and that in such denial, those courts decided against a right claimed by him under the above-mentioned Section 1, Article IV, of the Constitution, and the act of Congress of May 26th, 1790, on the subject of it.
Mr. Carlisle, for the defendant in error, now moved to dismiss the writ of error, because the record did not present any question within the twenty-fifth section of the Judiciary Act relied on by the plaintiff in error.
The record of the case, it should be said, contained the pleadings in the case, the facts which the court had found, and their conclusions of law on them. Among the latter, the court decided 'that by the law of the State of New York the title to the property passed on the execution and delivery of the instrument under the facts found in the case, and overreached the subsequent attachment in the State of Illinois, and actual prior possession under it, at the suit of defendant, although he was a creditor, having a valid and fair debt against Bates, and had no notice of the previous assignment and sale. And that the law of the State of New York is to govern the transaction, and not the law of the State of Illinois, where the property was situated.'
Messrs. Carlisle and Gale, in support of the motion to dismiss:
The record neither shows that the construction of any clause of the Constitution was drawn in question by the plaintiff in error, in the State court, nor that any right was claimed under any such clause, nor that any decision was made against any such right.
In fact the case did not admit of any constitutional question.
The defence set up in the State court was only that the safes, at the time of the seizure and sale, belonged to Bates, and that by such seizure and sale the plaintiff in error acquired Bates's title. The only issue thus formed was as to the right of property and possession at the time of such seizure; and this was the only issue tried and determined.
Messrs. Turnbull and A. J. Parker, contra.
Mr. Justice MILLER delivered the opinion of the court.

## Notes

* ↑ May 26; 1 Stat. at Large, 122.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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