Opinion
(December Term, 1827.)
1. Upon a bill filed in this State to execute a decree made in South Carolina: It was held (TAYLOR, C. J., dissentiente), that the courts of this State have a right to examine into the merits of the decree as upon a bill of review.
2. Where a resident of South Carolina, upon separating from his wife, gave her a post-mortem bond for her own benefit and that of their children, and died in South Carolina, having voluntarily conveyed land in this State to illegitimate children: It was held (TAYLOR, C. J., dissenting), that a decree of the chancery of South Carolina, declaring this conveyance to be void against the wife and children, was a nullity, the subject-matter being without its jurisdiction. Whether the land conveyed to the illegitimate children is liable to be taken for the satisfaction of the bond, quere.
3. In such a case it seems that subsequent advancements, made by the father to the children provided for by the bond, are considered as a satisfaction of it pro tanto; and it is clear that land charged with the payment of his debts is to be exhausted before a court of equity will subject property conveyed or bequeathed to the illegitimate children.
From RUTHERFORD. The bill was filed by Kezanah Picket and her trustees. The plaintiffs alleged that one Micajah Picket, the husband of the plaintiff Kezanah, after the marriage between them had subsisted for many years, and after a number of children had been born to them, commenced an adulterous intercourse with the defendant Susannah, which extended so far that in 1800 he separated himself entirely from his wife and family, and withdrew his support and protection from them. That upon this event, Micajah agreed with the plaintiff Kezanah, upon condition that she would not molest him with lawsuits, and would during his life relinquish all claim to a support out of his estate, (124) at his death to cause a sum of money, equal in value to the property he took with him at the time of the separation, to be paid to her for her own use and that of several of their children. That in pursuance of this agreement, the plaintiff Kezanah, on 12 December, 1800, executed to her husband Micajah a bond with sureties, in the penalty of $6,000, conditioned not to molest him with lawsuits or to claim a support from his property during his life. At the same time both Kezanah and Micajah executed a conveyance whereby certain slaves and other property were settled upon six of their children, and on 10 January, 1805, Micajah having ascertained the value of the property he carried off with him, executed to the plaintiff Kezanah his bond in the penalty of $30,000, conditioned to be void upon the payment to her after his death of the sum of $9,850, with interest, which sum of $9,850 was to be divided between the plaintiff Kezanah and three of her children not provided for by the deed of 12 December, 1800, in certain specified proportions. The plaintiff Kezanah averred that she had strictly compiled with the conditions upon which this bond was executed, and had not molested her husband with lawsuits or claimed a support from his property; but that her husband had used every stratagem in his power to deprive her of the benefit of this settlement, and particularly that he had conveyed to one James McKinney, who was defendant, and who had married an illegitimate daughter of Micajah by the defendant Susannah, a large proportion of his property, consisting of slaves and of a tract of land in Rutherford County, upon a pretended sale, but in fact upon a secret trust to hold it with its increase and accumulations for the benefit of the defendant Susannah and her children by Micajah. That Micajah Picket died in 1822, having by will devised the whole of his estate, except some small legacies to his children by the plaintiff Kezanah, to the defendant Susannah and her illegitimate children, and appointed McKinney and one Hiram Whitehead his executors. It was then (125) averred in the bill that the testator Micajah died at his usual residence in the State of South Carolina, which was also the domicile of the plaintiffs and one of the executors and most of the legatees, and where the greater part of his property was situate; that the plaintiffs had filed their bill in the court of chancery of that State against the executors and legatees, who were all personally served with process and contested the suit; that upon the hearing of the cause, the court decreed that the bond delivered on 10 January, 1805, by Micajah Picket to the plaintiff Kezanah was in equity binding upon volunteers, and that the settlement made on 12 December, 1800, by Micajah and Kezanah Picket, of slaves and other property upon six of their children was valid, so far as respected volunteers claiming under Micajah. That the deeds made by the testator Micajah to McKinney, of slaves and land in the county of Rutherford, were fraudulent and void against the claim of the plaintiffs; and also that the plaintiffs should have satisfaction for the amount due upon the bond delivered to the plaintiff Kezanah by the testator, out of the property of which he died possessed, and out of that conveyed to McKinney, so far as the same was within the reach of the process of the court. It was then charged that a large sum remained due upon that decree, after exhausting the property of the testator within the jurisdiction of the courts of South Carolina; that the present defendants, who were the executors and legatees of Micajah Picket, with a view of evading that decree, had removed some of the personal property to this State. The plaintiffs prayed a discovery and account of all the property which the defendants had received from Micajah Picket, and that they might have execution against the same, or any other property of the testator within this State, to satisfy the balance due upon the decree of the court of equity for the State of South Carolina.
(128) Gaston and Badger for plaintiffs.
Wilson for defendants.
The defendants, who were the executors and legatees of Micajah (126) Picket, in their answer admitted most of the material facts set forth in the bill. They contended, however, that the decree which the plaintiffs had obtained in South Carolina had been satisfied either from sales made of the testator's property in South Carolina or by advancements made to the children of Kezanah, who were entitled to a part thereof, by the testator, either in his lifetime or by his will; they insisted that the bonds and deeds executed by the testator and the plaintiff Kezanah, and set forth in the bill, were intended for the adjustment of family disputes, and should be considered as a family settlement. They, therefore, insisted that all advancements made by the testator, either by the will or otherwise, to any of his children by the plaintiff Kezanah, should be considered as a satisfaction pro tanto thereof, and as equivalent for the property settled upon his children by the deed of 12 December, 1800.
The defendant McKinney admitted the conveyance to him, by the testator, of a tract of land in Rutherford County, and certain slaves; he contended that he was a purchaser for value, as in consideration of the conveyance he had agreed to attend to the estate for the term of ten years, working thereon himself, together with the negroes conveyed to him and one of his own, to keep an account of the profits of the plantation, and at the end of the term to convey five-sevenths of the original value, together with an increase and accumulation, to five children of the testator by the defendant Susannah. The other defendants, who were children of Susannah, some of whom were infants, insisted that they were creditors of the value of their labor, and claimed the possession of their legacies until they were severally satisfied of the amount thereof.
The will of Micajah Picket, and a copy of the record of the suit in South Carolina, were filed as exhibits. By the first it appeared that he devised property of different kinds to the plaintiffs, who were his (127) children, and charged his debts upon his lands in the county of Buncombe. The contents of the latter have been anticipated in giving a statement of the bill and answers. It appeared, however, that several of the defendants were infants, and answered by their guardian; but no day was given them upon their full age to show cause against the decree.
The cross-bill prayed a discovery and an account of the advancements made by Micajah Picket to any of his children.
Replications were taken and proofs filed. They principally related to the amount of the advancements, which the defendants insisted should be brought into account.
I am willing to give to this decree all the obligatory force which is attached to it in South Carolina; and there it is binding upon the parties while it remains in force; but it is not unalterable. I suppose it may be reversed there, in whole or in part, by bill of review, either for error in law or for matter of fact, properly brought before the court. It cannot be more obligatory here than it is there. If it could be reversed there, and the cause of reversal is apparent to this Court, where the execution is prayed for, that cause of reversal may be examined as if it, were reheard upon a bill of review. This Court has no other way of coming at it. However, I give no opinion on this part of the case, because I concur in the principles upon which the decree is based. I think the contract between Micajah Picket and Kezanah his wife, in 1805, was founded on a good and meritorious consideration. That in point of obligation it is more than equal to settlements made after marriage, because in this case a compensation for the injury he had done her, the continuation of which was contemplated for the rest of his life, viz., in withdrawing his protection from her and withholding from her anything like a suitable support, formed a consideration in addition to that upon which such settlements are supported. The settlement upon the children was also founded on a meritorious consideration, and the more to be enhanced, as it announced that a father's care was about to be withdrawn from them, also.
The decree in part has been executed in South Carolina, and it (130) remains to be executed in this State; and the plaintiffs are entitled to a decree for that purpose. But what property shall be liable to that decree is made a question. It is admitted that the Buncombe lands are liable, as well as other property which belonged to the testator undisposed of at his death.
I think it equitable that any donations made by Picket to the plaintiffs after the date of the contract should be brought into the account.
It is contended that the lands in Rutherford are not liable. These lands were conveyed in 1817 to the illegitimate children of Micajah Picket, but not upon a valuable consideration. The conveyance was voluntary, and I am inclined to think they are liable. It is held, in Taylor v. Jones, 2 Atkyns, 600, that a settlement on a wife and children after marriage is a valuable consideration as to the husband, and even against a voluntary conveyance. If a voluntary conveyance is made, and there is a defect in it, so that it cannot operate at law, equity will not decree an execution of it; but if it is intended as a provision for younger children, the rule is different. Allen v. Arme, 1 Vent., 365; Coleman v. Sarel, 1 Ves., Jr., 54; ibid., 3 Bro., 14; Cases in Equity Ab., 24; Bacon's Abr. Agreement B, 2.
From these authorities it would seem that the lands in Rutherford are liable to the complainants' demand. But if the defendants have enhanced their value by labor, that additional value should be brought into the account. On these different points a reference should be made to the master.
I mean not at present to express an opinion upon the conclusiveness of the decree of the court of South Carolina upon matters within its jurisdiction; but I am inclined to believe that it stands before us as upon a bill of review, liable to be reversed for error in law (131) apparent upon its face, or to be impugned by facts since discovered. Greater sanctity cannot be claimed for it here than is given it in the State where it was made, and there, I presume, it may be reviewed and reversed for error. And if it cannot be resisted here, when attempted to be enforced by bill, our courts would be open to enforce the decrees of other states and shut to an examination of their errors; for we cannot bring them before us by bill of review. This is in accordance with the Constitution of the United States and the act of Congress; it is giving the decree the same faith and credit here that it has in the state where it was made. Baker Child, 2 Vern., 227; West v. Skip, 1 Ves., 245. But whatever may be the effect of the decree or judgment of a court, either of our own or another state, upon a matter within its jurisdiction, it is clear that upon a matter without it, the decree or judgment is a nullity everywhere; for all the faith attached to them arises from the fact that the court is authorized and appointed by law to act upon the subject.
I think that part of this decree was given upon a matter within the jurisdiction of the court, and part upon a matter without it. It was competent to the court to set up the contract between Picket and his wife, to order its payment by the executor and legatees of Picket out of the assets of the estate, wherever situated, and to remove every obstruction to the process of the court issued for the satisfaction of the decree. These defendants, as legatees of Picket, are affected by the decree, and it is evidence against them, so far as they claim anything under the will. But as donees, or grantees of the Rutherford lands, I think that the decree affects them not; for, with great respect and deference to the distinguished gentleman who pronounced it, I think the court had no jurisdiction. For although it admitted that the court, having the power to make a decree, has, as incidental thereto, the power of making (132) that decree effectual, and may, by virtue of that incidental power, remove every obstruction to the process of the court in carrying it into execution, yet this incidental power can be carried no higher than the source from which it arises — the right to enforce the decree. If, therefore, the obstruction did not in fact impede the process of the court, the court had no right to interfere with it or pass upon it. It is the fact of obstruction which gives rise to the power or removal. In this case the obstruction arose from the locality of the lands, and not from the claim of the defendants. Therefore, all that was said or done in regard to the defendants' title, and everything else in relation to them, as donees or grantees of these lands, is a perfect nullity. But to expedite the business, the clerk and master will take an account of all payments, advancements, or donations made by Picket to the complainants, or either of them, since the deeds of 1805. He will also take an account of the value of the labor and services of the defendants, the illegitimate children, which came to the use of Picket, deducting the expenses of rearing them; for as they are deprived of the charities of children, they are entitled to the rights of strangers. He will also take an account of the consideration paid or given upon the deed of 1816, and report to next court. The sheriff of Buncombe will sell the Buncombe lands, upon the premises, upon a credit of one, two, or three years, giving forty-one days notice at the courthouse and five other public places, and report to next court.