Ohio Insurance v. Edmondson

Porter, J. delivered the opinion of the court. The parties really litigant before this court are the plaintiffs,'and the defendant, Edmondson. The former claim a lien on an instrument of writing executed by Tallant, the original owner of the boat, in the State of Ohio. The latter sets up title to her under a sale made in the state of Kentucky, in virtue of a decree of one of the courts of chancery of that state. It is unnecessary to set out the pleadings, for after any detailed statement of them, they would only exhibit what has been already stated, as the substantial issue between the parties. Before, however, entering into the merits, one or two questions relating to the regularity of the proceedings, present themselves for decision, and must be disposed of. ■ The suit commenced by a service of the petition and citation on the defendant, Edmondson, and there was a prayer — 299 — for a provisional seizure. After service of the original pétition, a supplemental one was filed, in which the plaintiffs stated, they were obliged to ask for a sequestration of the boat. It was granted on an affidavit of their agent, in which he declared, that the allegations contained in the petition heretofore filed were true. It is unnecesa*y for a party to swear to the swear to the a ctssuppfj¿éntai if||equ“stS^j§ aos^flctssta-petition!3 ousmal ¿ contract mada country win bo other, unless¡nju-ry is thereby til-rectiy or incüreetly done to the inhabitants óf the latter. It is objected, that the allegations in the supplemental petition on which the writ of sequestration issued, are not sworn to, and that consequently the writ improvidently issued. However correct such an objection might be, in case the prayer for a sequestration rested on the facts set out in a supplemental petition, the court is of opinion the objection is not well founded in that now before it. In the supplemental petition, the plaintiffs allege no new facts; they on the contrary refer to the original petition, and make it the basis of their demand for a sequestration. The affidavit, therefore, of the agent repeating the averment of the truth of the alie- ° ° gations on which the plaintiffs claimed a lien on the boat, was the only one which could have been properly made; indeed any were necessary, after the oath previously taken by him, to the truth of the facts stated in the original petition, But a more formidable objection has been raised against the regularity of the proceedings. The statutes and jurisprudence of Louisiana, it is contended, only confer the privilege of sequestration to enforce liens given by its laws; and that, in aid of which this remedy was extended here, was not one that had any force, or conferred any privilege-in our state, though it might have that effect in the country where it was made. By the comity of nations a practice has been adopted by which courts of justice examine into, and enforce contracts made in other states, and carry them into effect accord- . ing to the laws of the place where the transaction took its ° A rise. This practice has become so general in modern times, that it may be almost stated to be now a rule of international law, and it is subject only to the exception, that the contract to which aid is required should not, either in itself, — 300 — or in the means used to give it effect, work an injury to the inhabitants ofjthe country where it is attempted tobe enforced. a bin of excop-tions to the intro-auction in .evidence of a depo-ground that it has taken^ls too^gcií the110 thaUrva°iidUymTf to the deposition of the officer by whom it was taThe objection now taken raises a distinction in cases so circumstanced, between remedies before and after judgment; and we confess we are unable to see any solid grounds on which it can rest. If it be true, as we apprehend it is, that the court can and should enforce the personal obligation which a party, not a citizen of the state, may have entered into in another country, and that on the judgment so rendered, the foreign creditor could obtain the benefit of all writs of execution which an inhabitant of Louisiana might resort to against a domestic debtor, then we can see no good ground for refusing the auxiliary process in the first instance; whether it be an order to arrest the person of the debtor, and hold him to hail, or a writ to seize the property brought within the jurisdiction of a court, if it be the subject of contest. Both seem to rest on the same principles. And a familiar illustration of the common received opinion on this subject, may be given in the case of attachments, which are almost every day resorted to in aid of the foreign creditor against the foreign debtor; and yet there is nothing in our law more expressly giving that remedy to the stranger, than there is in the case of sequestration. We, therefore, think the writ properly issued, and that the property seized under it, must abide the decision on the merits. There was a bill of exceptions taken to the introduction . , x in evidence of depositions taken in the state of Ohio. The * otjectio11 made here is, that the return to the commission is under the official seal of the mayor; and that the Code of Prac-requires it to be under the private seal of the commissioner. It is unnecessary to say what weight this objection is entitled, to m a case where the commission is directed, as . ,, . . , , , ,. , , , 5 in this instance, to a public officer by his title, and not to him personally; for no objection was made on the ground taken here in the court of the' first instance. The reasons given in the bill of exceptions are, that the depositions had not been — 301 — legally taken. This is too genejal; it is the duty of the party to put his finger on the particular defect. where maritime ved.Totifprincii mnsth’eriskedto obügation tila tenybond. On the merits of the case, there is much more difficulty than in the points just disposed of. The plaintiffs, as we have already stated, claim a privilege on the boat in consequence of a contract entered into in the state of Ohio, with her then owner. By the instrument which evidences this contract, it appears, the plaintiffs lent him the sum of six thousand dollars, for the use of which for one year he was to pay nine hundred and sixty dollars. The boat was to be navigated on the waters of the Ohio and Mississippi rivers .during that time; a lien or privilege was given on her for the payment of the debt and interest; and it was stipulated that in case she was lost during the period just mentioned, the sum of six thousand dollars should not be demanded or recoverable from the debtor, but that the interest might. It has been a subject of debate at the bar, whether this was not a bottomry bond. It certainly has many of the features of one; but we are inclined to the opinion that it cannot be considered such. Whether a bottomry bond may not be made to secure a sum of money lent with legal interest} payable at all events, seems to be a question not yet perfectly settled. But where maritime interest is reserved, the weight of authority appears to greatly preponderate in favor of the position, that both principal and interest’must be put at risk. See Story’s Abbott, 125. 4 Binney, 244. Park on Insurance, 416. The plaintiffs’ right to recover must therefore be found, if it exists at all, elsewhere than in the maritime law. He contends, however, that although the instrument may not confer the privilege of a contract governed by its rules, still by the laws of the state of Ohio, where it was executed, it gave a mortgage or lien on the boat, and that this lien existed on and attached to her when she was sold in Kentucky. In support of this position we have been referred to testimony taken in Cincinnati, and it certainly covers the whole ground •which the plaintiffs have taken in argument. Possessing no knowledge of these laws ourselves, and not having the means — 302 — 0f acquiring a knowledge of them except through the means resorted to, in this instance the proof furnished to us’ must guide and control our opinions. The evidence of the principal witness, by whom these facts are established, has been closely observed on, and our attention has been drawn to an acknowledgment made by Lhim that he expected a fee from the Insurance Company, for the trouble he had taken in investigating the case. We cannot say that this'circumstance au-thorises us to refuse credit to this deposition. The evidence itself carries in it internal evidence of fairness and truth. It appears to come from an intelligent man, and we are bound to presume one learned in his profession. Members of the bar in all countries, are in'the habit of receiving compensation for their opinions. The fact of their doing so is never considered as impairing the weight justly due to these opinions, and the respect to which they are entitled, obviously is much increased when they are given under the solemnity of an oath. A servant under a salary from one of the parties, or an agent who receives compensation in the very case at issue, is a good witness, if his compensation does not depend on the event of the suit. But what weighs with us more than all this, in according full faith and credit to the testimony of the witness, is, that his deposition was returned into court in November, 1830; that the cause was not tried until May, 1831; and that if the defendant knew, or had reason to believe, the witness.had mistaken the law, or mistated it, there was ample time to procure rebutting testimony. If the 'Steamboat then, had remained within the State of Ohio, the evidence satisfies us, the plaintiffs could have had a lien on her. But the main difficulty in the cause still remains. She was sold in the State of Kentucky, under a decree of one of the courts of that state, and purchased by the defendant at the sale. It is admitted on all hands, that this sale was legal and regularly made, and the question is not, what was the effect of the lien in the county where the contract was made, nor in that where it is sought to be enforced, but what effect it had in the state where the defendant acquired title to the property. — 303 — The statutes of the State of Kentucky, the decisions of her courts, and the testimony of witnesses, possessing a knowledge of her laws, have been introduced in evidence. Reliance was placed in argument, on the fact of an agent of the plaintiffs having attended the sale at which the defendant purchased, and on his having given notice of the lien which his principals claimed on the boat. A decision of the Supreme Court of that State, has declared that notice to the purchaser at sheriff’s sale, is not sufficient to enable the creditor to afterwards enforce his lien on the property sold, unless it is also shown, the creditor, at whose suit the sale took place, had notice of its existence at the time the debt was contracted. Other testimony taken in the cause, shows this to be the settled jurisprudence of that state, and the rule thus established is decisive of this part of the case. Helen vs. Logan’s heirs, 4 Bibb, 78. According to the testimony, it is shown that the courts of Kentucky would consider the bond on which this suit is instituted, though made in Ohio, a lien on the boat, and that in the language of the witness, it would operate on all persons who had notice of its existence, whether by record or otherwise. By an act of the General Assembly of the State of Kentucky, approved 11th February, 1830, it is declared that no deed of mortgage or deed of trust, hereafter made or executed for or upon any real or personal estate, shall be good or valid against a purchaser, for a valuable consideration, without notice thereof, or against any creditor, unless such deed shall within sixty days after the acknowledgment or proof by two subscribing witnesses according to the existing laws, be deposited for record in the office of the County Court Clerk of the County, where the estate therein conveyed, or the greater part thereof, lies. ¡. The State of Kentucky, we presume, gives effect to liens existing on property brought there from another country, on the principle of amity which we have already noticed, and we must also presume, until the contrary be shown, that she admits them with the same limitation which other states do; namely, that they shall not work an injury to her own citi — 304 — zens. To ascertain whether they do or not, recurrence must be had to her laws and policy in relation to contracts made within her limits; for we take the true principle in such cases to he, that the foreign creditor who has a lien, should have no greater or no less privilege, than the domestic creditor. If, for example, the laws of Kentucky required no record to be made of liens given on personal property within the state, she would not require registry on the part of the stranger who came there to enforce a mortgage on property, on whichhehad a lien in another country; for if she did, she would neither carry the contract into effect, according to the law of the country where it was made, nor according to her own. If this be true, whatever time is given to the domestic creditor to record his lien, should be given to him who comes from another state with one, if his lien be recognized as valid when enregistered, and his prayer to enforce it be admitted, as we are told by the testimony it could be. A foreign creditor who has alien on property,is entitled to an equal privilege * with a domestic crediOn this principle, the plaintiffs have contended, they had sixty days to record their mortgage after the property was carried into the state where it was sold. The statute, we have already seen, requires the lien to be recorded within sixty days after it is given in the county where the property is situated. One of the judges of the State of Kentucky, has been interrogated under a commission, whether, in his opinion, this delay of sixty days, applies to cases where the property is not yet within the limits of the state, and he has replied, that he is unable to answer the question. The difficulty which this learned person found in the question, has been fully shared by us. After the best consideration in our power,we,however, think, that if it he true as it is testified to us, that the lien existing on this boat would affect creditors and purchasers in the State of Kentucky, if duly recorded, it would seem to follow that the creditor’s obligation to record, could only commence at the period she came within the state. The words of the statute are, that the act giving the lien, “must he deposited for record in the office of the County Court Clerk of the County where the-estate lies.” A record, therefore, in any other county would — 305 — not suffice, nor would a registry where the property was not, but where it might thereafter be, comply with the requisitions of the statute. If then, the record could not be made pursuant to the act of Assembly, until the property was brought within the state, we conclude that the creditor had the delay of sixty days to make it. In all other cases, it is sufficient to enregister within that delay, after the lien has attached on properly. Here the mortgage did not attach until the hoat was brought within the state. This decision eminently promotes the equity and justice of the case. One witness swears, and he is uncontradicted, that the boat at the time of the sale was worth nine thousand dollars. She was first stricken off to a bidder, who had been advised the lien of the plaintiffs did not bind her for seven thousand dollars and some dollars. Finding afterwards, there was a great diversity of opinion among legal men on the effect the mortgage might have, he declined complying with his bid, and the boat being put up at auction again, she was purchased by defendant for one thousand five hundred dollars. Under such circumstances, no one, we think, can doubt the defendant obtained her at that price, under a belief she was subject to the lien, and if any one could doubt it, that doubt is removed by the fact, that she sold in this city since the institution of the present suit, for eight thousand four hundred dollars. It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be 'annulled, avoided and reversed; and it is further ordered and decreed, that the plaintiffs do recover from the defendant, the sum of six thousand nine hundred and sixty dollars, to he paid in preference, out of the proceeds of the sale of the steamboat Walter Scott, with costs in both courts. tr^tw(j£c£“¡ “le bottomry hasdbeen entered of ° mow, 'and confers anexpress Hen on a vessel, cannot by the ma-ntime law, follow her into other t0 tiered ac,u,red