United States v. Girault. 11 H.

against two defendants on a sealed note. The writ was returned served as to one of them, and non est as to the other. The declara. tion was filed against both, and the one personally served appeared and defended; and a verdict was found against him on which judgment was entered, the case remaining undisposed of as to the other defendant. On appeal the court reversed the judgment, remarking that the case should have been disposed of as to all the parties; there is no judgment of discontinuance or dismissal as to one of the defendants.

The same point was ruled in the case in 2 Howard above referred to; and also in that in 7 Howard. In the last * case [ * 32 | it is said that it is irregular to enter a final judgment against part of the defendants without disposing of the cause against the others; that it was regular to take judgment by default against those who did not plead; but the judgment in the case should not have been finally entered until the cause was ready for final disposition as to all.

The practice in this court, in case the judgment or decree is not final, is to dismiss the writ of error or appeal for want of jurisdiction, and remand it to the court below to be further proceeded in. 4 Dall. 22; 3 Wheat. 433; 4 ibid. 75; 6 How. 201, 206.

This is also the rule of the king's bench in England. Metcalfe's case, 11 Co. 38. It is there laid down in the second resolution, that by the words in the writ, si judicium inde redditum sit, &c., are intended, not only a judgment in the chief matters in controversy, but also in the whole of them, so that the suit may be at an end. The reason given is, that, if the record should be removed before the whole matter is determined in the court below, there would be a failure of justice, as the king's bench cannot proceed upon the matters not determined, and upon which no judgment is given, and the whole record must be in the common pleas or king's bench. It is entire, and cannot be in both courts at the same time.

The writ is conditional, and does not authorize the court below to send up the case unless all the matters between all the parties to the record have been finally disposed of. The case is not to be sent up in fragments, by a succession of writs of error. Peet v. McGraw, 21 Wend. 667.

It is supposed that, inasmuch as judgment is allowed to be entered separately against two or more defendants sued jointly upon a bond or note, according to the statute of Mississippi, the severance of the cause of action is complete; and that any one defendant against whom judgment may be thus entered can bring error, although the case has not been disposed of as to the other defendants. And for a

Oakey v. Bennett. 11 H.

like reason, when a judgment is rendered in favor of one defendant against the plaintiff, the latter may bring error before the suit has been disposed of in respect to the others.

But we have seen that the practice is otherwise under this statute, and that final judgment cannot be properly entered against any of the parties until the whole case is disposed of; and that any neglect in the observance of the rule exposes the judgment to a reversal on error in the appellate court.

According to the practice of this court, the judgment cannot be reversed on account of the error, but the case must be dismissed for want of jurisdiction, and remanded to the court below, to be proceeded in and finally disposed of.

[ * 33 ]

* As the case must come before that court for further proceedings, it may, in its discretion, on a proper application, relieve the plaintiffs from the embarrassments in which the justice of it seems to have been involved, on account of the unskilfulness of the pleader, by opening the judgment on the demurrer, and permitting them to amend the pleadings. It is apparent that judgment has been rendered against them, without at all involving the merits of the case.

The writ of error is dismissed, and the cause remanded to the court below.

13 H. 183; 14 H. 282; 20 H. 552.

SAMUEL W. OAKEY, Plaintiff in Error, v. JOHN H. BENNETT, Administrator of William Hall, and JOHN H. ILLIES.

11 H. 33.

A decree in bankruptcy in the district court of the United States for Louisiana, did not affect the title of the debtor to land in Texas, which had not then been admitted into the Union.

THE case is stated in the opinion of the court.

Hall, for the plaintiff.

Rogers, (with whom were O. F. Johnson and Harris,) contrà.

[ * 42 ]

* M'LEAN, J., delivered the opinion of the court.

A writ of error to the district court of the United States for Texas brings this case before us.

Under the forms of procedure in Texas, an action was commenced by petition, on the 25th of January, 1847, by the plaintiff, for the recovery of a house and lot in the city of Galveston, Texas, described in

Oakey v. Bennett. 11 H.

block six hundred

evidence a deed [ 43 ] in controversy to

The same lot, on the 3d

the plan of said city, number thirteen, in and eighty-one. The plaintiff gave in from the proprietors of the city for the lot James S. Holman, dated 1st June, 1840. of April, 1843, was conveyed to William Hall, by Snydor, the attorney of Holman. The purchase was made by Hall, some time before the deed was executed, and he entered into the possession of the lot, made improvements thereon, and continued to occupy it until his death. The defendant Illies has been in possession of the lot since the death of Hall.

On the 9th of February, 1843, William Hall ("late of Galveston, Texas,") filed his petition for the benefit of the bankrupt law,1 in the district court of the United States for the eastern district of Louisiana, and on the 10th of March following, he was declared a bankrupt. A schedule of his assets was filed, among which was the lot now in controversy. Francis B. Conrad, of the city of New Orleans, was appointed his assignee, who gave bond as required. The assignee, on application to the district court, obtained an order for the sale of the house and lot, and they were sold, in pursuance of such order, to Oakey, the plaintiff, on the 18th of June, 1845, to whom a deed was executed on the same day by the assignee.

Before the commencement of the suit, in 1844, Hall died, and Bennett, the defendant, was appointed his administrator in Texas. Process was issued against him, and also against Illies, the person in possession, who refused to recognize the right of the plaintiff.

In his answer, Bennett avers that the petition and the matters and things therein set forth are not sufficient in law, &c., and he prays judgment, &c. And for further answer he states, that Hall departed this life before the annexation of Texas to the United States, and that administration of his estate was duly granted to the defendant. That he proceeded in the discharge of his duties, and he exhibits accounts against the estate of Hall, by himself and other citizens of Texas, which were allowed by the probate court, amounting to the sum of $1,811, before any conveyance of the house and lot by the assignee of Hall was set up or registered in Galveston county, as the law required. And he avers that there is no property to satisfy the debts of the estate, except the house and lot in controversy.

Many points were raised, on which bills of exception were taken to the rulings of the court, in the progress of the trial, but the validity of the deed of the assignee to the plaintiff is the great question in the case.

*

Oakey v. Bennett. 11 H.

There can be no doubt, the proceedings in bankruptcy being regu lar and bona fide, that the property of the bankrupt, within [ *44 ] the appropriate jurisdiction, became vested by the act of congress in his assignee. At the time of the decree of bankruptcy, and until a short time before the sale and conveyance of the property in question to the plaintiff, Texas was an independent republic, and in every respect a foreign state to the government of the United States.

In this country there is some diversity of opinion among the state courts, whether a bankrupt law, in regard to personal property, has an extra-territorial operation. That it has such operation is a doctrine which seems to be well settled in England by numerous decisions, and particularly in the Royal Bank of Scotland v. Cuthbert, 1 Rose's Bankrupt Cases, Appendix, 462, and 2 Rose's Cases, 291, in which Lord Eldon said: "One thing is quite clear, that there is not in any book any dictum or authority that would authorize me to deny, at least in this place, that an English commission passes, as with respect to the bankrupt and his creditors in England, the personal property he has in Scotland or in any foreign country."

It is held in England, that an assignment of personal property under the bankrupt law of a foreign country passes all such property and debts owing in England; that an attachment of such property by an English creditor, with or without notice, after such an assignment, is invalid. And the doctrine is there established, that an assignment under the English bankrupt law transfers the personal effects of the bankrupt in foreign countries. But an attachment by a foreign creditor, not subject to British laws, under the local laws of a foreign country, is held valid. The principle on which this doctrine rests is, that the personal estate is held as situate in that country where the bankrupt has his domicile.

A statutable conveyance of property cannot strictly operate beyond the local jurisdiction. Any effect which may be given to it beyond this does not depend upon international law, but the principle of comity; and national comity does not require any government to give effect to such assignment, when it shall impair the remedies or lessen the securities of its own citizens. And this is the prevailing doctrine in this country. A proceeding in rem against the property of a foreign bankrupt, under our local laws, may be maintained by creditors, notwithstanding the foreign assignment.

But it is an admitted principle in all countries where the common law prevails, whatever views may be entertained in regard to personal property, that real estate can be conveyed only under the territorial law. The rule is laid down clearly and concisely by

Oakey v. Bennett. 11 H.

Sir William Grant, in Curtis v. Hutton, 14 Ves. 537, 541, [ 45 ] where he says: "The validity of every disposition of real

estate must depend upon the law of the country in which that estate is situated." The same rule prevails generally in the civil law. Boullenois, John Voet, Christinæus, and others, cited in Story, Conflict of Laws, 359, 360, say: "As a general rule, movable property is governed by the law of the domicile, and real property by the law of the situs rei."

This doctrine has been uniformly recognized by the courts of the United States, and by the courts of the respective States. The form of conveyance adopted by each State for the transfer of real property must be observed. This is a regulation which belongs to the local sovereignty.

It is argued that the entire interest in the property in dispute passed, under the bankruptcy, to the assignee of Hall; and that, it being sold under the order of the district court to the plaintiff, the title is vested in him, the same as if the conveyance had been executed by Hall.

On the appointment and qualification of the assignee, the property of the bankrupt, under the act of congress, became vested in him, for the benefit of the creditors of the bankrupt. But there was no assignment in fact made by Hall. He made application for relief under the law, and may be said to be a voluntary bankrupt; but there was no other assignment of his effects than that which resulted from the operation of the law. As, under the constitution, congress exercised an exclusive jurisdiction over the subject of bankruptcy, the same rule of procedure extended throughout the Union. But the act of congress could have no extra-territorial effect. Texas was an independent republic at the time of the decree in bankruptcy, and consequently no claim under it, even as regards personal property, in that republic, could be made, except on the ground of comity. And on our own principles this could not be done, to the injury of local creditors.

Hall, in his lifetime, might have conveyed this property by observing the forms adopted by Texas. But the assignee took no legal estate in the premises under the bankrupt law; and consequently he could not convey such an estate to the plaintiff. No proposition would seem to be clearer of doubt than this. It is believed that no sovereignty has, at any time, assumed the power, by legislation or otherwise, to regulate the distribution or conveyance of real estate in a foreign government. There is no pretence that this government, through the agency of a bankrupt law, could subject the real property in Texas, or in any other foreign government, to the payment of debts.