
    William Wellborn v. Jesse Carr
    Appeal from Red River County.
    A judgment or decree of a foreign court founded on proceedings in rem is, by the general consent of nations, of universal obligation and absolutely conclusive, unless tbe same was fraudulently' obtained or pronounced by a court which had not jurisdiction. [16 Tex. 177.]
    All the allegations in a bill, not traversed by the answer, must be taken as admitted to be true.
    
      The most material facts of this case are stated ia the opinion of the court.
    
      Duval, for appellant,
    made the following points:
    1st. The court below erred in overruling the motion made by defendant’s counsel to quash the writ of sequestration issued in this case. The record shows that this writ was issued by the cleric of the court without any authority from the judge. At that time clerics of courts were authorized by statute to issue writs of attachment only, whilst the power to grant writs of sequestration was given exclusively to the judges. The power to grant the former cannot include the latter, because both being summary remedies created by statute in special cases, which the ordinary process of law is inadequate to reach, must be strictly construed, and where these statutes make any distinction between the two writs, the mode of granting and all the other incidents pertaining to each must be strictly complied with. Ord. and Dec. of Consultation, art. 6, p. 7; 3 Laws Texas, pp. 89, 98.
    2d. There was error in permitting the alleged transcript of a record from the state of Alabama, and upon which this suit was founded, to go as conclusive evidence before the jury.
    Being a foreign judgment it was, at most, only prima facie evidence of what it purported to decide, and the defendant, was entitled to and should have been allowed the privilege, under the laws of the republic, of inquiring into and contesting the original cause of action upon which such judgment was predicated, according to the rules of decision prevailing in the courts of this republic. 5 Laws Texas, p. 44, sec. 2.
    3d. If such transcript had been otherwise conclusive, it was not authenticated in the mode contemplated by the laws of the republic and should have been excluded as evidence in her courts. The transcript purported to contain the proceedings of a court of the state of Alabama. It was attested by the judge of the court and certified by the governor under the seal of the state. The republic of Texas could not recognize the state of Alabama as a sovereignty nor acknowledge the validity of her great seal, because her national existence as regarded foreign relations was merged in that of the United States.
    The record in question should therefore have been authenticated under the great seal of the United States in order to have made the same conclusive evidence here. Church v. Iiubbart, 2 Cranch, 187; 1 Stark. Ev. p. 205, note (1) and p. 230, note (2); Phillips v. Lyons, decided by this court at the present term.
    
      Allen, for appellee.
    
      The answer of the defendant does not contain a single allegation which goes to the merits of the controversy or 'which can affect the decision of this canse. The allegations in the petition which the answer seeks to traverse are mere recitations of the matters contained in the original bill of the complainant filed in the chancery court of Alabama, excepting the defendant’s denial of leaving the state secretly and fraudulently (which is wholly immaterial) coupled as it is with the admissions in his answer which make solely against himself and in favor of the appellant. Those allegations in the petition are; not made in a form which admits of their being denied or put in issue1 in the snit at bar. They are expressly described as matters contained in the original "bill and which were traversed in the answer to that bill and adjudicated in the decision of that cause. They are the materials of a former cause and cannot belong to the present, excepting by way of inducement or so far as to lead to the “ decreefor the specific property ” rendered in that cause in favor of the plaintiff and which forms the basis of his claim in this suit. Under these circumstances the answer amounts to a confession of the matters contained in the petition. Tor “ an insufficient answer being no answer, the bill may be taken pro confesso against the defendant,” or “ where an answer is not responsive to a material allegation in the bill, the plaintiff may move to have that part of the bill taken as confessed.” Mayor v. Tyson, 1 Bland, 560; Dangerfield v. Claiborne, 2 Hen. & Munf. 17.
    The act of the 19th January, 1841, “creating a system of bankruptcy and regulating the collection of foreign debts,” in forbidding foreign judgments, decrees, etc., from forming any grounds for action in the courts of the republic, had reference only to judgments in per-sonam for pecuniary recovery. This is made very clear by the fourth clause of the second section, which declares that the provision enacted in the first clause, prohibiting suits on foreign judgments, “shall not extend to or embrace any foreign judgment or decree for specific property or recovery,” whether introduced “as the basis of a public sale,” or “for the transmission of titlef or for “the record or memorial of any Unh or nvuniment of title to specific estate.” Ours is a decree for specific property introduced for a memorial of our mu-niment of title to the slaves in controversy.
    A memorial is a “ representation,” whether made to a legislative body or to a court — muniments are defined to be “ evidences and writings concerning a marts possession or inheritance whereby he is enabled to defend the title of his estate. And, this word includes all manner of evidences, deeds, charters, etc. Jac. Law Die. Thus in the case of Barr v. G-ratz’s Heirs, a decree in equity is mentioned as constituting a part of the muniments of the plaintiff’s estate. 4 Wheat. 213 (4 Condi 427).
    The decree of the chancery court in Alabama is an evidence or muniment of title in’favor of the complainant and the copy or exemplification adduced is the memorial or representation of it.
    To interpret this act so as to preclude the recovery of the appellee would moreover be to violate the law of nations. This the legislature did not intend to do as is manifest from the phrasfeology of the act in question. Judgments in rem (like the present decree for the recovery of slaves) have a higher and more complete operation than other judgments. They are held to be of universal obligation as to all matters of right and title which they profess to decide in relation thereto and in such cases, by the general consent of nations, the judgment of the forum rei sites is held to be absolutely concbuswe. Story Confl. secs. 591, 592, 593 and 594.
   Lipscomb, J.

It will be necessary to the investigation of the points presented for our consideration in this case, to substantially recite the petition or bill of the appellee in the court below. The petition states that David A. Monegan is the guardian of Jesse Carr, a lunatic. That petitioner had been duly appointed guardian by the county court in Marengo county in the state of Alabama, the county of the domicile of the said lunatic, and of his guardian, the petitioner. That proceedings had been instituted fey the said guardian against the said "Wellborn, in the county of Marshall, the county of the domicile of the defendant, in the said state in the court of chancery, to set aside a pretended sale of certain negroes made by the said lunatic to the said "Wellborn, that a decree was rendered by the Honorable Alexander Bowie, chancellor of the said court, setting aside the said pretended sale as fraudulent and divesting the said Wellborn of all right and title to the said slaves under the said pretended sale, and vesting the title to the same in the petitioner as guardian of the said lunatic and decreeing that they should be delivered up to him as such guardian. It stated that Wellborn had run the said slaves off to Hed river in the republic of Texas. It prays that he should be required to deliver the said slaves and their increase to the petitioner as guardian, and for the value of their services for their detention. It called on the defendant to answer as to the increase of the said slaves, their number, and whether they were not in his possession or what disposition he had made of them. There was a great deal more stated in the petition by way of inducement to the action, and may be regarded as a mere detail of the proceedings in Alabama, but are not thought to be in any wise material in this court; but we have only recited the material allegations contained in the petition. It was verified by the oath of -the guardian Monegan.

The answer of Wellborn admits his possession of the slaves, the names, ages and sex, with the names and ages of their increase; that these are all then in his possession, excepting one that had died in the state of Alabama; that he sold none of them. He makes no answer or reference to the proceedings of the court of chancery, and the decree of the chancellor. But goes on to set up the validity of the sale, and the capacity of the said Jesse Carr to contract for himself; the fairness of the transaction, and much other matter that would have been proper to have been considered, but no doubt was considered by the chancellor on the final hearing in the state of Alabama. He denies that he had secretly fled with the negroes from Alabama. On the trial of the case the plaintiff in the court below, who is the ap-pellee in this court, produced in evidence an exemplification of the proceedings, and the decree of the chancellor in Alabama, authenticated by the certificate of the . clerk and master, by the chancellor and the governor with the seal of the state, which was admitted although objected by the defendant and excepted to; and the judge charged the jury that the decree was conclusive. Which charge was also excepted to by the appellant.

The jury then found that the record was proven according to the certificates; meaning, I presume accprding to the attesting certificates, but found that the use of the property was not worth more than the support of the slaves.

This case was once before this court under its former organization as the supreme court of the late republic of Texas, on an appeal from the judgment of the court below in favor of the defendant’s general demurrer to the petition, which judgment was reversed, and the demurrer overruled. The opinion of the court went fully into the law of the case, and took and sustained the distinction between proceedings and judgments i/n personam and in rem. It held that the ceedings and decree of the court of chancery in Alabama were in rem and vested the property in the slaves in the guardian, for the use' of the lunatic, Carr.

One of the questions now presented for our consideration is, did the court below err in its charge to the jury, that the decree of the chancellor- was conclusive? We have at the present term of this court, in the case of Phillips v. Lyon, decided that a foreign judgment, in proceedings in personam was prima facie evidence of the debt; and if the language of the court was not explicit in making the distinction between proceedings in personam and in rem, it was because that in the case then before the court, the judgment was indisputably on proceedings in personam, and of course the opinion and the decision was in reference to that class of cases, and not to be construed as applying to proceedings in rem. Judge Story, after commenting on the proceedings and judgments of foreign tribunals in general, and the effect given to them in other countries, says “ that if the matter in controversy is land or other immovable property, the judgment pronounced by the forum rei sites is held of universal obligation, as to all matters of right and title which it professes to decide in relation thereto;” and in such cases by the general consent of nations, the judgment of the fonem rei sites is held absolutely conolusim. And the same principle is applied to all other cases of proceedings in rem, as to movable property within the jurisdiction of the court pronouncing the judgment. Whatever is settled as to the right or title, or whatever disposition it makes of the property by sale, revendication, transfer or other act will be held valid in every other country where the same question comes directly or indirectly in judgment before any other foreign tribunal. Story Confl. secs. 591 and 592. This is believed to be the doctrine of all courts acknowledging the obligation of international laws, subject, however, to the exception that it may be shown to defeat such effect, that the foreign court pronouncing the judgment or decree had no jurisdiction, or that it was fraudulently obtained. According to the record before us the jurisdiction of the court of chancery in Alabama was not questioned, nor was there any imputation against it of fraud. It would then seem that the court below did not err in the charge on the conclusive character of the decree of the chancery court of Alabama.

The next point presented for consideration is the admissibility of the exemplification of the record of the proceedings in the state of Alabama, as it appears to have been authenticated. This question came directly before us in the case of Phillips v. Lyons, and it was ruled not to be admissible evidence. We shall not repeat the grounds of our opinion, as it will be found by a reference to that case, that they are there stated. In that case the court mainly relied on the rules laid down by Chief Justice Marshall, in Church v. Hubbart, 2 Cranch, 187; and on this point we would be constrained to reverse the judgment, if under the issues, the testimony received was necessary. The rule that all the allegations in a bill not traversed by the answers are to be taken as admitted is believed to be too well settled at this time to admit of argument. It will be seen that the fact of the proceedings in the chancery court of Alabama, and the decree of the chancellor, for the specific restitution of the negro slave in question, were distinctly and specially alleged in the bill, and that the answer does not traverse them. It was to support these allegations alone, that the evidence under consideration could have had any application, and it was offered to prove facts not denied and consequently admitted. If the answer had traversed the allegations, then it would have devolved on the complainant to have sustained them by legal testimony. There is but one allegation in the complainant’s bill, that the answer traversed, and that altogether an immaterial one; that the defendant had secretly and fraudulently removed the negroes from Alabama to Red River county in Texas. The bill and answer furnished everything material to sustain the complainant’s rights, to the extent claimed except for the services of the negroes, and this was the only inquiry that properly belonged to the jury in the trial in the court below, and their verdict furnishes no ground of dissatisfaction to the appellant, as the jury allowed nothing. It is obvious, the appellant^ did not design in his answer, to question the fact of the decree having been rendered by the chancellor, as charged in the bill; nor the jurisdiction of the court; nor did he intend to charge that it had been fraudulently obtained. He did intend, however, to make a false issue, and thereby draw into the investigation matters that had been disposed of on the hearing of the case before the chancellor in Alabama. Hence his effort to set up the sanity of the lunatic Oarr, and the fairness of his purchase from him. This, it has been shown, he could not do. On the whole, we are of the opinion that although the testimony was not authenticated in a way to make it legal evidence, that yet after rejecting the finding of the jury on that evidence, there is abundantly enough left to sustain the judgment. It is therefore affirmed with costs.  