
    SKIPWITH vs. HIS CREDITORS.
    Eastern Dis.
    
      July, 1841.
    APPEAL FRO .11 THE COURT OF THE THIRD JUDICIAL DISTRICT, TOR THE PARISH OF EAST BATON ROUGE, THE PARISH JUDGE PRESIDING.
    A judgment obtained in the last resort is final and conclusive between the parties to it; although it may not beso as to third persons: Nor cana change by the common debtor making a surrender, affect the rights of the judgment creditors who have a privilege or mortgage on the property ceded.
    Testimony contained in a deposition must he disregarded which goes to show any thing contrary to or explanatory of a judgment between the parties; hut may he proper to prove that one of the parties was in possession of a separate estate.
    The record of a suit and judgment is admissible in evidence to show that it was rendered against a party who had surrendered certain slaves to be sold, although it might he insufficient per se to prove she had a title to them.
    Acts or deeds under private signature, acknowledged before the mayor of a city, are inadmissible as evidence, when it is not shown he had authority to take the acknowledgment of witnesses to such acts or deeds.
    The record of a suit pending in the Supreme Court of another State, is inadmissible in evidence when it is irrelevant and tends to controvert a judgment between the same parties in this State.
    It is not enough that a party renders his rights and claim probable in a court of justice, he must make them legally certain.
    On the 29th May, 1821, Fulwar Skipwith presented his petition with a hilan or schedule annexed, containing a detailed statement of his debts and claims of his creditors, also assets, property and effects, of every kind, which he surrendered for the benefit of all his creditors, and prayed for the usual stay of proceedings, and for general relief under the insolvent laws relating to voluntary surrenders.
    Among the creditors placed on the hilan were Wm. Russell of Great Britain, by notes and mortgage for $11,500 ; amount due the heirs of Joshua Follansbie of Massachusetts, deceased, with interest $2,100. Due Louisiana State Bank by note and mortgage $2,400; due Mrs, Louisa V. Skipwith, $26,000 being the supposed proceeds of 640 acres of land, &c., and 11 slaves, being her property and sold to Josias Gray, with other slaves of F. Skipwith, on the 23d October, 1819.
    There was a meeting of creditors who appointed John Buhler, Esq. of Baton Rouge, syndic. On the 11th June, 1832, the syndic filed his tableau of distribution. The amount for distribution in hands of the syndic was $11,462 and $4,375 for future distribution. The privileged claims amounted to $2,166. Russell’s heirs by special mortgage on proceeds of property sold were put down for $8,209; leaving a balance of their claim of $14,538 for which they are placed as ordinary creditors.
    Mrs. L. Y. Skipwith was placed as a creditor by special mortgage for $748, as having been paid by her to the Bank of Louisiana; and as an ordinary creditor for $5,263 paid by her to the heirs ofi^oshua Follansbie; and also for $26,000 as due her in her owii right.
    Russell’s heirs and Mrs. Skipwith both made opposition to the tableau, and also to each other’s claims. There was some other oppositions, but the two first mentioned are all that are material to be stated as the case now comes before this court. The nature of the claims of each party, the evidence produced, and the questions of law raised thereon are fully stated in the opinion of this court. The debt or claim of Russell’s heirs has been severely contested in the trial of the present case, although liquidated and settled by a judgment of the court of the last resort. See the case of Rawle for the use of Russell vs. Skipwith and wife, reported twice in 8 Martin N. S. 118, 407. It was three times before the Supreme Court. The first opinion and .judgment given, which was at the June term, 1S28, -has never been reported or published. It is now published for the first time, as an omitted case.
    There was judgment confirming and homologating the tableau as relates to the heirs of Russell; also, for the mortgage claim of Mrs. Skipwith for $748, and her ordinary claim of $26,000; but rejecting her claim in right of and as subrogated to Follansbie’s heirs. She appealed.
    
      Ogdens, Elam fy Barton, for the appellant,
    insisted that the judgment of Russell’s heirs was not res judicata in this case. F. Skipwith was no party when it was rendered; having made a surrender. Mrs. Skipwith was. not competent to defend the suit, or take an appeal without tho authorization of her husband or the judge, and had neither.
    2. The appellant was subrogated to Follansbie’s right of mortgage, having paid his debt, and should he preferred for the amount of this claim.
    
      Thomas Gibbes Morgan, for Russell’s heirs,
    contended that Mrs. Skipwith and her husband were in court when he-failed ; and she was competent to carry on the defence of the suit. She had bound herself in solido for tito debt, and renounced her right of mortgage. Judgment was properly rendered against her for the entire debt. She cannot contest the validity of either the judgment or the claim settled by it.
    2. The debt paid to Follansbie’s heirs was one for which Mrs. Skipwith was already bound to pay, and she cannot make any claim on the property surrendered, either by subrogation or otherwise.
    3. There is no legal evidence or proof of her claim against the estate of her husband. Her opposition should have been rejected, and the claim erased from the tableau.
   Bullard, J.

delivered the opinion of the court.

The syndic of the creditors of Skipwith, filed a tableau of distribution in which the heirs of William Russell were classed as mortgage creditors, and entitled to the whole amount of the proceeds for which the property sold on which they had a mortgage, by assignment from the insolvent and his wife, to wit: $8209. Mrs. Skipwith was set down as subrogated to the mortgage of the Bank of Louisiana on property surrendered, the proceeds of which are more than sufficient to discharge the mortgage, being one-half the sum paid by her as joint obligor with her husband. She is further put down as a creditor for $26,000, and the heirs of Russell for $14,538 78, as the balance of his claim after exhausting the mortgaged property. And Mrs. Skipwith for a further sum of $5263, paid by her to the heirs of Follans-bie. It is unnecessary to detail any further the claims which figure on the tableau, inasmuch as the questions involved in the case now before us relate altogether to the conflicting claims of Russell and Mrs. Skipwith, either in her own right or as assignee of Follansbie,

Mrs. Skipwith filed an opposition to the claim of the heirs of Russell, in which she alleges that besides her claim in virtue of her subrogation to the Bank of Louisiana, she is also a creditor of the estate to the amount of $5263, for a debt of her husband paid by her to the heirs of Follansbie, for which she is legally subrogated and has the first and highest privilege and mortgage upon the whole estate of her husband; that she was coerced to pay said debt, notwithstanding the legal pleas and exceptions opposed by her, and she alleges that the act of assignment by her to Follansbie in 1820 was made in ignorance of her rights and to secure a debt of her husband. She alleges that she is further a creditor of her husband for the sum of $12,500 with the highest privilege and mortgage, which she alleges she paid to Daniel Clark, from the proceeds of fifty thousand acres of land on the Ouachitta, a part of her separate and parapher-nal estate. She further alleges that the debt due to her by Gray, secured by mortgage on lands and slaves sold by her to him, to wit: $45,000, was a part of her paraphernal estate, and that her assignment to W. Russell of a part of the money thus secured by mortgage was made by her in ignorance of her rights to secure a debt due by her husband, and that a certain judgment alleged byRussell to have been obtainedby him against the opponent, decreeing to him his recourse Upon the said assignment for $11,500, was obtained by surprise without her being heard in her defence ; that the judgment is an interlocutory or provisional one merely and not definitive or final, and is open to all legal defences. And she avers that the claim of said Russell, if any he have, is upon six promissory notes made to him by the ceding debtor for his own separate debt. She further alleges that the judgment above mentioned was rendered and signed after the, cession of goods. The opposition em-other matters which have either been expressly abandoned or not noticed in argument, and which consequently it is unnecessary to set forth.

To that part of the opposition, which relates to the effect and validity, of the judgment by which the assignment to Russell was held to be valid and binding on Mrs. Skipwith, the heirs of Russell set up the exception of res judicata; and this presents the first question which it is proper to examine in this case.

The judgment which it is averred forms the authority of the thing adjudged, was pronounced by this court at the January term, 1830, in the case of Rawle for the use of Russell vs. Skipwith and wife, and is reported in 8 Martin, N. S., 407. The court held that the obligation which the wife contracted for her husband was negated by the acceptance of an assignment of a debt due by Gray, and that the assignment on the property mortgaged by Gray ought to be inforced. The formal decree of this court was “that the assignment by the defendant, L. V. Skipwith, to plaintiff, of a portion of the mortgage of Josias Gray to herself and husband on the 8th of Septem-her, 1821, be considered good and valid to the amount of $11,500; and it is further ordered and decreed that the plaintiff be at liberty to exercise against the land and slaves mentioned in said act of mortgage from Josias Gray to defendant, all rights of action which she, the said Louisa V. Skipwith, could or might of right exercise had the assignment mentioned in this decree of that part of said mortgage never been made.”

It was in pursuance of this judgment that the heirs of Russell provoked the sale of the mortgaged property, the proceeds of which are in controversy between them and Mrs. Skipwith; and the question is, whether she be precluded from setting up any claim which might tend to defeat her assignment, thus adjudged to be valid and binding upon her. We cannot doubt the conclusiveness of this judgment upon the parties. It was pronounced by the court of the last resort, and we cannot loo'k behind it. Nor do we understand how this judgment can he considered merely as provisional. It is said by the senior counsel of Mrs. Skipwith, in an ingenious argument, that the land and slaves subject to the mortgage had been already ceded to the creditors, and the concurso had been formed, and the first step should have been to- have had this provisional judgment made final by having- the privilege-, if any, established contradictorily with all the creditors. To this it may be answered that a judgment may well be final and conclusive between the parties and not so as to third persons; and the object of this proceeding is to give effect to-that judgment against third persons unless good cause can be shown- to the . . it, contrary. I he- mortgaged premises pendente lite were rendered to ' the creditors, but it is- clear that such a change could not affect the-rights of the mortgagee or of the heirs Russell as-- assignees. If their mortgage- existed before the , . , , surrender it still e-xisted into whosoever hands the property might pass, until sold at a regular syndic’s, sale, for the pose of paying the debts of the insolvent. Every judgment may in that sense of the word be regarded as provisional only ; that is to. say not coficlusive upon persons not parties.

A judgment last resort is fi-sWe^betwemi may not be so as to third pen-Nor can. common debtor the rights of the judgment creditors who or mort-property1 ceded

The judgment in question authorizes the heirs of Russell under the assignment to exercise any action which Mrs. Skip-with, the original mortgagee and assignor, might have done, if no assignment had been made. They had therefore a right to cause the mortgaged property to- be sold and to pay themselves the sum of $11,500, out of the proceeds, and no interference of Mrs. Skipwith could defeat that right. The property having gone into the hands of the syndic, the heirs of Russell retain their right to be paid out o-f the proceeds of the sale by preference as mortgage creditors.

In homologating the tableau, so far as relates to this claim, we think the District Court did not err.

The heirs of Russell on their part filed an opposition, to the claims of the widow. They deny her claims either as a privileged or ordinary creditor ; and this opposition brings before the court the whole merits of the case as between the two opposing creditors. The opposition of Banks need not be fioticed as he is not before us, the only appellants being the widow Skipwith and the heirs of Russell, We will consider her claim first as it relates to the payment alleged to have been made by her to the heirs of Follansbie and her subrogation to their rights, which was rejected and disallowed by the court below, and secondly, as to the debt due to the Bank of Louisiana and paid by her but disallowed by the court below, and lastly, as to the amount allowed her on the tableau and by the judgment of the District Court, as- a privileged or mortgage creditor.

1st. It is contended, that the heirs of Follansbie had an anterior claim by assignment, of a part of the mortgage of Josias Gray, and that Mrs. Skipwith having paid said claim to the amount of upwards of $5000, became thereby subrogated to the rights of Follansbie on the proceeds of the mortgaged property, and must be paid in preference to the heirs of Russell, Admitting the facts to be as here stated, it would by no means follow that Mrs. Skipwith would have a right to be paid in preference to the heirs of Russell. Follansbie had but an installment of the same mortgage, and if he were now before the court claiming to be paid out of the proceeds of the mortgaged property, he would at most be entitled to come in concurrently with Russsll, an assignee of such installment. But in point of fact, it appears that the payment was made in pursuance of a judgment rendered against her as a joint debtor. That judgment must be held to be conclusive upon her as to creditors, and the payment consequently extinguished the mortgage pro tanto. The court did not therefore err in rejecting the claim.

The record abounds in bills of exceptions, presenting various questions of law touching the admissibility of evidence, which it is difficult to classify in such a manner as to condense our remarks upon them. The trial was however by the court, and as all the evidence was admitted notwithstanding the numerous objections, and is now in the record, we may well disregard such as we think ought to have been rejected, as illegal, and give effect to that which was in our opinion admissible, without remanding the case, if we should be of opinion that any was improperly admitted. ■

Testimony contained in a deposition must which**1 goes'1 to eoXary^to1'”? explanatory ot a judgment between the parties; but may be proper to prove parties ^'was ^n Possesfon °f a

0f a suit^and ¿fslSloVn evl-‡310® t0 slw that it was rendered against a Surrendered & “gr^msol¿la^jf though be insufficient perse to prove she had a title to them.

Acts or deeds si^atare^'ac-knowledgedbe-tore the mayor of a city, are inadmissible as evidence, when he’híd* autho-take the aeknowledg-ment of wit-nesses to such acts or deeds.

I. & II. The first and second bills of exception relate to the x admissibility of the return of a commission, with the depositions of Mrs. Harris, A. Hennen, and others, which was objected to on various grounds, some of which relate to the character of the evidence itself, and some to the manner in which the commission was executed. It was objected that certain ... cross interrogatories had not been answered, but it appears upon inspecting the depositions that they were answered. The depositions were therefore in point of form admissible; but so far as the testimony went to show any thing contrary to or explanatory of the judgments rendered in the cases of Follansbie or Russell or is merely hearsay, it ought to be disregarded, but to have its proper weight so far as it tends to prove that Mrs. Skipwith was in possession of a separate estate.

III. We are of opinion that the record of the case of the Bank of Louisiana vs. Skipwith and wife, was properly admitted in evidence notwithstanding the objection that the mort- ^ gage annexed showed that the slaves belonged to Skipwith, and that the sheriff’s return was no legal evidence to show property in Mrs. Skipwith, although’it showed that she had surrendered the property to be sold. The record was admis-x r J sible to prove the transaction itself, although it might not be _ . * sufficient per se to prove title m Mrs. Skipwith.

IV. We are of opinion that the acts under private signature annexed to the deposition of Brockenborough are not duly proved and ought not to have been received in evidence ; 0 . . nothing shows that the mayor of Richmond has authority to , , , , „ . . take the acknowledgement of witnesses to such deeds, so as to render them authentic evidence, without proof by such subscribing witnesses on oath when the deed is produced as ° 1 dence of title. The deposition itself which appears to have . . ... been taken by the mayor as commissioner named m the deal- mus, was properly received, reserving- all exceptions to the ,. r u -j competency of such evidence.

The record ing^rT'the ¶3\1-another^°State^ is inadmissible m evidence when it is in-e-lavant and tends to controvert a twéen tile samé EtatéeS U1 tlUS

enough that^a party renders his rights and claim probable justice,Ti^must gjdly eertain!e"

Y. It follows from, what we have already remarked of the conclusiveness of the judgment rendered by this court in the case of Rawle for the use of Russell vs. Skipwith et al., that an affidavit made by her in the progress of that suit in the District Court, with a view to obtain a continuance, was properly rejected when offered in support of her opposition in the present case.

VI. We are of opinion that the court erred in admitting in evidence the record of a suit heretofore pending in the Supreme Court of Pennsylvania,, between Russell & F. Skipwith, 1 J although it appears to have been duly authenticated according . .... to the act of congress; because it was either entirely irrelevant or tended to controvert the judgment of this court in the case Russell’s heirs vs. Skipwith and wife.

VII. The depositions of Michel and Relf were objected to on the ground that cross interrogatories propounded by the heirs of Russell had not been answered ; hut from an inspection of the deposition it does not appear that the objection was well founded. There being in point of fact, answers to cross interrogatories.

It certainly appears that the parties were separate in property by the marriage contract, and that funds were invested belonging to the wife in the purchase of slaves. But the-proof is not sufficient, in our opinion, to establish her claim to surú $26,000 which she demands as a simple debt against her husband, contradictorily with the creditors. The . . ... evidence is vague and indefinite ; it is not enough that a party ren^ers his right probable, he must make it legally certain, ^e uiarriage contract does not show that the wife brought property of any value into marriage, and only a small amount came to her from her mother’s succession, which she herself appears to have received. In short, the legal evidence in the record has failed to satisfy us that the husband’s estate is chargeable with the sum of $26,000 which has been allowed on the tableau as a simple debt.'

It is therefore ordered and decreed, that the judgment of the District Court so far as it orders the claim of Louisa V. Skip-with for $26,000 to he paid out of the funds in the hands of the syndic, he reversed and annulled, and that the same he stricken from the tableau of distribution. — And that it is further adjudged and decreed that in all other respects the judgment he affirmed; and that the tableau thus amended he finally confirmed and homologated, and that the costs of the appeal he paid out of the mass of the estate.  