Lord v. Cannon

• Decision Date: 31 October 1885
• Citation: 75 Ga. 300
• Parties: Lord. vs. Cannon.
• Court: Georgia Supreme Court

75 Ga. 300

Lord. vs. Cannon.

Supreme Court of the State of Georgia

OCTOBER TERM, 1885.

Jurisdiction. United States Courts. Bankruptcy. Ejectment. Warranty. Judgments. Res Adjudicata. Comity. Before Judge Simmons. Bibb Superior Court. April Term, 1885.

Reported in the decision.

J. W. Lindsey; Hardeman & Davis, for plaintiff in error, cited, on judgment of eviction binding warrantor, 1 Am. R., 191; 8 Am. Dec, 272; 4 Wall., 657; 3 Id., 1, 18, 19 25 Ga., 566; 10 Id., 311; Code, §3364. Jurisdiction, when agreement or failure to plead may waive, 115 D. S., 159; 59 Ga., 534; 56 Id., 282; 60 Id., 659; 65 Id., 557; 70 Id., 409; 61 Id., 208; 17 Id., 573; 27 Id., 172; 8 Id,, 83; 49 Id., 579; 41 Id., 71; 59 Id., 845; 68 Id., 774; Code, §§3460, 3461; 10 Fed. R. 696; 1 Woods, 279. Jurisdiction of Federal court on matter growing out of bankruptcy, Rev. Stat. U. S., §§4972, 5045; Bump., 518; Sup. U. S. Rev. Slat., §173; Code, §5289; 111 U. S., 738; 11 Fed. R., 384; 10 Id., 692, note; 12 Id., 754; 14 Id,, 194; 4 Woods, 134, 273; 10 Blatchf., 163; 6 Wheat., 264, 379; 9 Id., 738, 820; 2 Dall., 304; 1 Wheat., 304; 21 How., 506; 4 Dill., 242; 8 Fed. R,, 250; 31 La. An., 363; 5 Chic. L. N., 434; 12 Id., 75; 96U. S., 199; 6 Wall., 247; 100 U. S., 258, 275; 102 Id., 135; 96 Id., 199; 114 Id., 501; 113 Id., 574; 3 Fed. R., 545; 9 Rich Eq., 521; 3 Sandf. Ch., 35; 29 Penn., 242; 6 Humph., 146; 15 Ala., 423; 7 Id., 189; 23 Mo., 13; 23 Penn., 509; 32 N. H.—; 3 Bibb, 216; 12 Ind., 192; 31 111., 295; 8 Md., 322; 37 N. Y., 155; 9 Paige, 259; 3 111., 97; 22 Barb., 167; 2 Nev., 165; 1 Cow., 220; 1 Wis.. 47; 2 McCord, 157; 3 Kansas, 390, 276, 3 Blackf., 376; 5 Ind., 487; 23 Id., 600; 28 Id., 233; 9 Port., 679; 15 Ala., \'423; 7 Dana, 500; 8 Id., 194; 8 Mo., 448; 20 Id., 296; 25 Id., 309; 43 Id., 323.; 25 111., 173; 54 Id., 175; 1 Brown, 187; 25 Penn., 176; 110 U. S., 276; 4 Woods, 283.

Dessau & Bartlett, for defendant, cited, on jurisdiction of U. S. court, Rev. Stat. U. S., §§629, 630, 4979-4986; 4 Dall, 8; 94 U. S., 455; 97 Id., 646; 109 Id., 278; 8 Peters, 112; Bump., 371, 699, 140, 612, 608, 173. Defendant not estopped from showing judgment void, Code, §§3594, 3828; 48 Ga., 50; 50 Id., 271, 289; 25 Id., 566; Freeman Judg., 117, 120, 547; 91 U. S., 105; 70 Ga.. 484; 5 Sawyer, 39; 99 U. S., 547.

Hall. Justice.

The plaintiff complains of a breach of covenant of title made to him by the defendant for two lots of land, and also for a violation of an undertaking and agreement on the part of the defendant to indemnify and save himharmless on account of expense incurred in a suit brought for the recovery of such land, which ended in a judgment evicting him from the same.

At the hearing of this case, it was shown that the suit in which the judgment of eviction from the premises was rendered against the plaintiff by the fifth circuit court of the United States for the southern district of Georgia, was prosecuted by one Ogburn; that the defendant was notified of the commencement of this suit, and appeared by his counsel and made answer thereto, and conducted the defence to the termination of the case. The facts set out in the action of ejectment to give jurisdiction to the circuit court of the United States were, that the plaintiff therein had been adjudged a voluntary bankrupt, upon his own petition, by the district court of the United States for the southern district of Georgia; that the lands in question had, in that proceeding, been set apart to him as an exemption under the bankrupt laws of the United States, and that he had obtained his final discharge in bankruptcy; that just prior to the filing of his petition and his adjudication as a bankrupt, the lands had been levied on by the United States marshal, under an execution in favor of one Kelly against Ogburn, issuing out of the circuit court of the United States; and that, pending these proceedings in bankruptcy and notwithstanding the same, they were sold under that levy, and at that sale Gannon, the defendant in this suit, became the purchaser, and afterwards conveyed them to the plaintiff, Lord, by deed, containing the warranty of title, for the breach of which this suit is brought.

On the close of plaintiff's evidence, a motion was made to non suit the case, on the ground that the circuit court of the United States had no jurisdiction of the cause in which the judgment of eviction was rendered, because both the parties to the same were citizens of Georgia, and because its cognizance over the matter of bankruptcy ceased with the bankrupt's final discharge, which divested that court of jurisdiction over the subject-matter of the suit, and be-cause the plaintiff\'s right did not arise under the constitution or laws of the United States, but existed independently; in short, that there was no question in the case to make it one arising under the constitution or laws of the United States. The motion was sustained and the case dismissed, and to this judgment exception was taken, and brought to this court by writ of error for review.

1. In the suit of Ogburn vs. Lord in the circuit court of the United States, both parties were citizens of the same state, and if this had been the only jurisdictional fact set out in the pleadings, they would have shown upon their face that the court had no jurisdiction; and if the controversy was one respecting the title to lands simply, and without more, then the same result would have followed, unless grants thereto had emanated from different states, which, in this case, was not pretended. Constitution of the United States, Article III., Section II. On neither of these grounds, therefore, was it claimed that the federal court had jurisdiction in that cause; but it is now insisted that, inasmuch as the right in controversy arose under the constitution and laws of the United States, it was properly cognizable by the courts of the United States. Id. The act of congress of the 3d of March, 1875, § L (Supp. R. S. U. S., p. 173), expressly provides that the circuit court of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the constitution or laws of the United States.

The plaintiff founds the jurisdiction of the circuit court of the United States, in the case in question, on this provision of the act of congress, which, it must be conceded, is in strict pursuance, and almost in the very terms, of the constitution, and says that, inasmuch as Ogburn was adjudged a bankrupt under the laws of the United States, and as the land in controversy was contained in the proper sched-ule attached to his petition, and was set apart as an exemption to him under that proceeding, his right to possess it arose directly under the constitution and laws of the United States, and that it is immaterial, as respects the jurisdiction, that it was levied on by a process issuing from the federal court four days previous to the adjudication upon the petition in bankruptcy, and was sold by the marshal on the second of March, nearly a month after Ogburn was adjudged a bankrupt, and was purchased at that sale by Cannon, his warrantor of the title involved in this suit, and conveyed to him in pursuance of the sale. That Ogburn was the owner of the premises, and had title thereto at the time of this levy, was not a question in issue. When the sale was made, the land was in the custody and under the exclusive control of the United States District Court sitting in bankruptcy; it was not set apart as an exemption to the bankrupt until the first day of April then next. The question, then, necessarily involved in the suit for the recovery of the possession of the premises by the bankrupt was, whether this sale divested his title and conferred it upon Cannon. It would seem, therefore, that the case he made was one arising solely and exclusively under proceedings and judgments rendered by the courts of the United States, and under and in pursuance of the constitution and laws of that government. The constitution confers upon congress power to pass uniform laws on the subject of bankruptcies throughout the United States (art. 1, sec. viii, par. 4), and the legislation of congress declares that the jurisdiction of the courts on which the power to administer this law is conferred shall be exclusive. Rev. Stat,, §711, Act Congress 22 June, 1884 (Stats, at Large, vol. 18, 178); Brady vs. Brady, 71 Ga., 71, 76, 77 and citations. We think the defendant\'s counsel wholly misapprehend the cases they cite to sustain the position they take, that Ogburn\'s suit proceeds upon his title as it existed prior to the adjudication in bankruptcy, or upon anything that occurred subsequent to his final discharge, andthat the title, as it existed before the institution of the proceedings, was not at all affected by the fact that it was set apart as an exemption after the sale to Cannon. Whether they are right or wrong in this last position, it is not necessary now to decide; it is sufficient that this was the very point in controversy, and that it was determined adversely to them by the circuit court of the United States; for, if that court had jurisdiction of the subject-matter of suit, as it will appear it had, and it determined that point against the defendant, as well as the right of the plaintiff to the thing in controversy, and no steps were taken to get rid of that judgment, then it is binding at least upon the parties to it and their privies in estate or in law. We have no power to review the judgment, and can only determine as to its effect; it is binding upon us, as well as upon all other courts, until it is reversed or set aside by the court rendering it or the appellate courts of the United States. This conclusion is, as we think, inevitable, and admits of neither question nor doubt. Was...