Opinion
(Decided 20 December, 1898.)
Election — Statutes of Other States — Facts to be Proved.
1. Where a debtor in this State makes an assignment to trustees, including therein lands in Virginia; and a creditor, secured in the fourth class, after the date of the trust, but before it is recorded in Virginia, has a judgment confessed to him there, has it docketed, and is proceeding to enforce it against the land, he cannot be required by the trustees, under the doctrine of election, to surrender his judgment lien on the land, or else, forego all claim to preference under the assignment.
2. Every court must have jurisdiction of the subject before it can adjudge anything, and this court has no jurisdiction over land in Virginia — neither is it presumed to know the existence and bearing of statutory regulations there, in the absence of proof.
3. The duty of the trustee is to perform the trust they have undertaken, in the way directed in the deed.
THIS was a controversy without action, submitted under section 567 of The Code, upon the facts agreed at February Term, 1898, of the Superior Court of FORSYTH County, before Coble, J.
His Honor adjudged that the plaintiffs are entitled to prove their entire claim as set forth in the deed of assignment of H. H. Reynolds against the assets in the hands of the assignees for distribution among the creditors of the fourth class.
And that in case of recovery by the plaintiffs out of the lands situate in Patrick County, State of Virginia, a sum more than sufficient to pay the remainder of the debt and costs, that the plaintiffs account with and to the defendants, assignees, for such excess. That plaintiffs recover the costs.
Defendants except, and appeal.
(363) The facts agreed are stated in the opinion.
Glenn Manly and Jones Patterson for defendants (appellants).
Watson, Buxton Watson for plaintiffs.
Controversy without action upon the following agreed facts: On 26 May, 1893, H. H. Reynolds made an assignment in North Carolina to J. W. Gannon in trust for his creditors, conveying all his real and personal property, including all his land in Patrick County, Virginia. By consent, another was admitted as co-trustee with Gannon. The trust deed provided for certain creditors in the fourth class, of which the plaintiffs were preferred for $1,500. The deed of assignment was recorded in the clerk's office of Patrick County, Virginia, on 16 June, 1893. The plaintiffs, on 29 May, 1893, recovered a judgment by confession in Virginia against Reynolds for their debt (the same debt referred to in the assignment) and had their judgment docketed in Patrick County, Virginia, on 30 May, 1893, which it is stated became a lien on his land in Virginia. At that time the plaintiffs knew that Reynolds had made an assignment, but did not think that it conveyed the Virginia lands. The plaintiffs have a suit pending in the Court of Chancery in Virginia to sell said lands. They have not received anything on their judgment, but expect to receive $700 or $800 from that source when a final sale is made. The defendants have in hands funds enough to pay about 50 per cent on the claims of the fourth class creditors. The plaintiffs, as fourth class creditors, claim the right to file their whole claim and receive from the trustees their proportion of the fund now in hand and satisfy the balance out of the sale of the Virginia lands if they can, and pay any balance of the said land proceeds to the said trustees. The defendants refuse to pay the plaintiffs any part of the fund now in their hands. The fourth class creditors are not parties to this controversy, the trustees being the only (364) defendants.
The defendants' contention is that the plaintiffs, having taken judgment and levied on the Virginia lands, have not the right now to receive any part of the fund in hand, held for the fourth class creditors.
It is a general rule in law and in equity that a person cannot reject and accept the same instrument — he cannot claim under and against it, and the rule applies to every instrument, whether a deed or a will, the doctrine of election does not apply to the agreed state of facts in this case, and the first call of the law is that it shall fit the facts. This is not, however, the point of difficulty in the case.
We are without jurisdiction over the Virginia lands, because they lie beyond the territorial line of our jurisdiction. Every court must have jurisdiction of the subject, at least, before it can adjudge anything.
But it is argued that we can withhold from the plaintiffs any benefit out of the fund now in the hands of the defendants, upon the agreed fact that the plaintiffs have acquired a lien on the Virginia lands. But to do that we must assume to know the status of the lands — the nature and effect of the lien, which is a question of law, and the disposition of the proceeds of the sale that will be made by the courts of that State having jurisdiction thereof; in other words, the statute law of Virginia. As to these matters we are not informed. We do presume that the common law prevails in Virginia in the absence of proof to the contrary, but, according to that law, the lands of a debtor were not liable to the (365) satisfaction of a judgment against him, and no lien was acquired thereon by a judgment. A judgment creditor had no jus in re, but only the power to make his judgment effectual by following up the steps of law, by an execution and levy on the lands. The alleged lien in this case was not obtained in this way, but by a docketed judgment, and that is a statutory regulation in each state, and what that regulation is in Virginia we are not informed. The law of another state must be proved like any other matter of fact.
When the defendants accepted the trust created by the assignments, they agreed to administer the proceeds of the property according to the provisions and in the manner directed by the deed, and we do not see any reason why they should not perform their contract. Whilst we cannot, and do not, undertake to make any order affecting the rights of the fourth class creditors in the Virginia lands, we do not see any reason why they may not litigate with each other, in respect thereto, in any court having authority to act, if they are so disposed.
The only exception is to the judgment entered by his Honor, and we see no error therein, and it is affirmed.
No error.