Greer v. Ferguson

• Decision Date: 11 June 1892
• Citation: 19 S.W. 966
• Parties: GREER <I>et al.</I> v. FERGUSON <I>et al.</I>
• Court: Arkansas Supreme Court

19 S.W. 966

GREER et al. v. FERGUSON et al.

Supreme Court of Arkansas.

June 11, 1892.

Cross appeals from circuit court, Mississippi county; JAMES E. RIDDICK, Judge.

Action by Greer & Adams against Ferguson & Hampson to recover for services as attorneys. Both parties appeal from the judgment.

E. F. Adams, for plaintiffs. U. M. & G. B. Rose, for defendants.

HEMINGWAY, J.

For convenience we may divide the judgment below, and treat it — First, as a judgment against Ferguson & Hampson; and, second, as a judgment against the executors of Hanauer. From the first the plaintiffs alone appeal; and they complain of the court's action in discharging the attachment, and also in refusing to charge a lien upon the land to secure the judgment in their favor, it being rendered upon a claim for services as attorneys in defending a former suit against the present defendants for the recovery of the land. From the second both parties have appealed; the plaintiffs because the sum awarded them is too small, and the executors of Hanauer because there was any recovery against them. It is insisted that the attachment should have been sustained on the ground that the defendants had fraudulently disposed of the land attached. The act relied upon as evidence of fraud was the making of a mortgage for the land by Ferguson in the name of the firm of Ferguson & Hampson. It is argued that the mortgage was not a valid conveyance, and that, as it placed a colorable incumbrance upon the land, it had a tendency to hinder and delay the creditors of Ferguson & Hampson, and was therefore fraudulent. The mortgage is claimed to have been invalid, first, because the land belonged to the persons composing the firm as tenants in common, and was not the property of the firm. Of this fact there is no proof, and, as the burden of proof was upon the plaintiffs, we must find against them. The next reason assigned for its invalidity is that it was executed by but one of the two partners, and this, it is claimed, was beyond his power. As it was executed by one in the presence of the other, and with his consent, as security for a firm debt, it was binding upon the firm. Ferguson v. Hanauer, (Ark.) 19 S. W. Rep. 749. As the claim arose out of the services rendered in defending the title to the land, and not in the recovery of the land, the attorneys acquired no lien upon it. Hershy v. Du Val, 47 Ark. 86, 14 S. W. Rep. 469. We are therefore of opinion that upon the abstract and brief filed no error prejudicial to plaintiffs appears in the judgment, so far as it affects Ferguson & Hampson.

In considering the judgment in so far as it affects the estate of Hanauer, we are confronted by the question whether the court could revive the suit in the name of his foreign executors so as to render any judgment against them binding upon his estate. After the cause was submitted we referred this question to counsel for reargument, and have been furnished with briefs which direct our attention to many authorities. We have examined the citations, and find the question settled by the authority of adjudged cases and of text writers with exceptional unanimity. It was decided by the supreme court of the United States in the case of Vaughan v. Northup, 15 Pet. 5. Judge STORY, after stating the question, says for the court: "Every grant of administration is strictly confined in its authority and operation to the limits of the territory of the government which grants it, and does not de jure extend to other countries. It cannot confer as a matter of right any authority to collect assets of the deceased in any other state, and whatever operation is allowed to it beyond the original territory of its grant is a mere matter of comity which every nation is at liberty to yield or to withhold, according to its own policy and pleasure, with reference to its own institutions and the interest of its own citizens. On the other hand, the administrator is exclusively bound to account for all the assets which he receives under and in virtue of his administration to the proper tribunals of the government from which he derives his authority; and the tribunals of other states have no right to interfere with or to control the applications of those assets according to the lex loci. Hence it has become an established doctrine that an administrator appointed in one state cannot in his official capacity sue for any debts due to his intestate in the courts of another state, and that he is not liable to be sued in that capacity in the courts of the latter by any creditor for any debts due there by his intestate. The authorities to this effect are exceedingly numerous both in England and America; but it seems to us unnecessary, in the present state of the law, to do more than to refer to the leading principle as recognized by this court in Fenwick v. Sears, 1 Cranch, 259; Dixon's Ex'rs v. Ramsay's Ex'rs, 3 Cranch, 319; Kerr v. Moon, 9 Wheat. 565." The authority of this case was not impaired by a dissenting opinion, and has been recognized without question by that court as a correct and final statement of the law. Other courts and text writers have adopted it, and no useful service would be performed by any quotation from them. Sloan v. Sloan, 21 Fla. 589; Judy v. Kelley, 11 Ill. 211; Railway Co. v. Dooley, 32 Ill. App. 228; Beeler v. Dunn, 3 Head. 87; Sparks v. White, 7 Humph. 91; Allsup v. Allsup's Heirs, 10 Yerg. 283; Magraw v. Irwin, 87 Pa. St. 142; Brownlee v. Lockwood, 20 N. J. Eq. 242; Peale v. Phipps, 14 How. 375; Winter v. Winter, Walk. (Miss.) 211; Schouler,...