# Green v. Van Buskirk (74 U.S. 139)

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United States Supreme Court
74 U.S. 139
Green v. Van Buskirk
ERROR to the Supreme Court of the State of New York, the case being thus:
The Constitution of the United States declares that 'full faith and credit' shall be given in each State to the judicial proceedings of every other State, and that Congress may prescribe the manner in which such proceedings shall be proved and the effect thereof. Congress, by act of 1790, did accordingly provide that they should '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 these provisions in force, one Bates, who lived in Troy, New York, and owned certain iron safes in Chicago, Illinois, in order to secure an existing debt to Van Buskirk and others, executed and delivered (in the State of New York), to them, on the 3d of November, 1857, a chattel mortgage on the safes. Two days after this, one Green, also a creditor of Bates, sued out of the proper court of Illinois a writ of attachment, caused it to be levied on these safes, got judgment in the attachment suit, and had the safes sold in satisfaction of his debt. At the time of the levy of this attachment the mortgage had not been recorded in Illinois; nor had possession of the property been delivered under it; nor had the attaching creditor notice of its existence. Green, Van Buskirk, and Bates were citizens of New York.
It was admitted on the record that the proceedings in attachment were regular and in conformity with the laws of Illinois; that the cases of Martin v. Dryden and Burnell v. Robertson, reported in the Illinois reports, rightly explained those laws; that Bates was the owner of the safes on the 3d of November, 1857, and that Green was a bon a fide creditor of Bates. After the levy of the attachment Green received notice of the mortgage, and the claim under it, and Van Buskirk and the others, mortgagees, were informed of the attachment; but they did not make themselves parties to it and contest the right of Green to levy on the safes, which they were auhorized by the laws of Illinois to do.
By statutes of Illinois, any creditor can sue out a writ of attachment against a non-resident debtor. Under this writ the officer takes possession of the debtor's property. If the debtor cannot be served with process, he receives notice by publication, and if he does not appear, the creditor, on proving his case, has judgment by default, and execution is issued to sell the property attached. These statutes further enact, that mortgages of personal property are void as against third persons, unless acknowledged and recorded, and unless the property be delivered to and remain with the mortgagee.
In this state of the law in Illinois, Van Buskirk sued Green in one of the inferior courts of New York, for taking and converting the safes, sold as already mentioned under the attachment. Green pleaded in bar the attachment proceedings in Illinois. But the court held that the law of New York was to govern the case, not the law of Illinois, though the property was situated there, and that by the law of New York the title to the property passed on the execution and delivery of the mortgage, and took precedence of the subsequent attachment in Illinois. This judgment being affirmed in the highest court of the State of New York, Green, assuming that the 'faith and credit' which the judicial proceedings in courts of Illinois had by law and usage in that State, were denied to them by the decision just mentioned, took a writ of error to this court, conceiving the case of fall within the 25th section of the Judiciary Act, which gives a writ in cases where, in the highest State court, a clause of the Constitution of the United States is drawn in question, and the decision is against the right, title, or privilege specially set up.
The case having got here, a motion was made in December Term, 1866, to dismiss it for want of jurisdiction; the ground of the motion having been, that the only defence set up in the State court was, that the safes at the time of the seizure and sale belonged to Bates, and that by such seizure and sale Green had acquired his title; that thus the only issue tried and determined in the New York court was the right of property and possession at the time of the seizure.
But this court overruled the motion to dismiss, and held, that while the question whether the proceedings in the Illinois court had the effect which Green asserted for them, was one to be decided after argument on the merits, yet that the effect which those proceedings had there by law and usage of that State, was a question necessarily decided by the New York court, and decided against the claim set up by Green under the provision of the Constitution quoted, ante, on page 140; and that so the case was properly in this court for review.
It was now here for such review; a review on merits.
Mr. Porter, with a brief of Mr. Gale, in support of the judgment below:
The defence in the New York courts was, that the safes were Bates's, and were seized and sold as his, under execution in an attachment suit against him. Thus, the leading question was the ownership at the time of the attachment. If the safes were then Bates's, the attachment took effect upon his title; but if they had already passed to his vendees, then the attachment process could not reach them. This leading question of previous ownership, and as to the effect of the sale, as against creditors, necessarily assumed that the Illinois suit and process had their full effect of establishing Green in the legal position of attaching creditor of Bates, and entitled, as such, to contest such sale. Whatever interest Bates had, that, it was admitted, was bound. The question was, whether he had any interest, a matter which did not depend on the record from Illinois, but on the fact whether the assignment was to be governed by the domicile of the owners or by the locus rei sitae. Full faith and credit was thus given to the record.
The New York courts rightly decided that the sale was governed by the law of sales of New York; for a voluntary transfer of personal property is governed everywhere by the law of the owner's domicile, except, perhaps, as against citizens of the local situation. Had the question been tried in Illinois, the courts in that State would, therefore, have determined the effect of Bates's sale by the law of his domicile, and, of course, in the same way that it was determined in New York.
This decision, that the New York law governed the sale, was right, for the further reason that the parties, as citizens of New York, were bound by its laws.
Messrs. A. J. Parker and Lyman Trumbull, contra, contended, that the position of the other side, now taken, was just as good an argument against the jurisdiction of the court in the case, as it was on the question of merits. In effect it was the argument made on the motion to dismiss for want of jurisdiction. But this court had refused to dismiss, and so decided that the argument was unsound. The question now before the court had been really disposed of in the former case. And it was disposed of rightly.
In the State of Illinois, and in all other States where there is what is called an attachment law, an attachment levied under it is 'a proceeding in rem.' Such a proceeding, if there be jurisdiction, is conclusive upon the res against all interested in the property, and the attachment issued holds such interest in the property as the defendant, by the laws of the State, had at that time; though nothing beyond.
If, therefore, the action had been brought by Van Buskirk in the State of Illinois, he could not, on the facts shown, have recovered, but the court then would have said that he had obtained, under the attachment, a good right to the property.
Such being the effect of the judicial proceeding in question in the State of Illinois, we had a right, under the Constitution, and the act of Congress of 1790, to insist that the same force, effect, and credit, should be given to it in the State of New York.
The wisdom of the constitutional and statutory provisions in question making this requirement, and the necessity for strictly enforcing them, are apparent in this case, where it is sought by the defendants in error to convert an act which was lawful in the State of Illinois, where it was done, and in regard to property being there, into a trespass in the State of New York, where they chose to bring these suits.
In conclusion, we refer the court to the case of Guillander v. Howell, decided by the Court of Appeals of the State of New York since the decision of this case. In that case the court seems to abandon the position it held in deciding the present case.
Reply:
In Guillander v. Howell, the attaching creditor was a citizen of the State in which he applied for the benefit of the attachment laws; while here he was a citizen of another State. This is a material point of distinction; for here the parties, as citizens of New York, were bound by its laws.
Mr. Justice DAVIS delivered the opinion of the court.

## Notes

* ↑ 1 Gilman, 187; 5 Id. 282.
* ↑ Revised Statutes of 1845, p. 630, seq.
* ↑ Ib. ch. 20
* ↑ Green v. Van Buskirk, 5 Wallace, 310.
* ↑ Sill v. Worswick, 1 H. Blackston, 690; 2 Kent, § 376; Parsons v. Lyman, 20 New York, 103; Burlock v. Taylor, 16 Pickering, 335; Van Buskirk v. Hartford Ins. Co., 14 Connecticut, 583; Caskie v. Webster, 2 Wallace, Jr., 131.
* ↑ Martin v. Dryden, 1 Gilman, 212.
* ↑ Buck v. Colbath, 3 Wallace, 346.
* ↑ Christmas v. Russell, 5 Id. 290.
* ↑ 35 New York, 657.
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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