
    Kezanah Picket and others v. Susannah Johns and others, Same Defendants as Plaintiffs v. Same Plaintiffs as Defendants.
    From Rutherford.
    
      Up on a bill filed in this State, to execute a decree made in South Carolina, it roas hel4, Tayiob Chief-Justice dissentiente, that the Courts of this State have a right to examine into the merits of the decree aa up on a bill of review.
    
    Where a resident of South-Oarolina, upon separating from his wife, gave her a. post mortem bond for her own benefit, and that of their children., and died'ia South-Oarolina, having voluntarily conveyed land in this State to illegitimate children, it -toas held, Taycob Justice dissenting, that a decree of the Chancery of South-Oarolina, declaring this conveyance to be void against the wife and children, was a nullity, the subject matter being without its jurisdiction. Whether the land conveyed to the illegitimate children is liable to be taken for the satisfaction of the hond, Quere 1
    In such a case, it seems that subsequent advancements, made by the fa' ther to the children provided for by the bond, are considered as a satisfaction of it pro tanto, and it is clear, that land char ged with the payment of his debts is to be exhausted, before a Court of Equity will'subject property conveyed, or bequeathed to the illegitimate children.
    The bill was filed by ICexanah Picket and her trus« tees. The Plaintiffs alledged, that one Micajah Picket, the husband of the Plaintiff ICexanah, after the marriage between them liad subsisted for many years, and after a number of children had been born to them, commenced an adulterous intercourse with the Defendant Susannah, which extended so far, that in the year 1800, he separated himself entirely from his wife and family, and withdrew his support and protection from them. — . That upon this event, Micajah agreed with the Plaintiff ICexanah, upon condition that she would not molest him with lawsuits, and would during his life, relinquish all claim to a support out of his estate, at his death, to cause a siim of money equal in value, to the property he took with him at the time of the separation, to be paid her for her own use, and that of several of their children. That in pursuance of this agreement, the Plaintiff ICexanah, on the 12th of December, 1¿00, executed to her husband Micajah, a bond with sureties, in the penalty of $6,000, conditioned not to molest him with lawsuits, or to claim 'a support from his property during his life. At the same time, both ICexanah and Micajah executed a conveyance, whereby certain slaves and other property, were settled upon six of their children, and on the 10th of January, 1805, Micajah having ascertained the value of the property he carried off with him, executed to the Plaintiff ICexanah, his bond in the penalty of $30,000, conditioned to be void upon thepayment to her after his death, - Of the sum of $9,850, with interest, which sum of $9,850, was to be divided between the Plain tiff .Kbsíana/í and three of her children, not provided for by the deed of December 12th, 1800, in certain specified proportions. The Plaintiff ICezanah averred, that she had strictly complied with the conditions upon which this bond was executed, and had not molested her husband with lawsuits, or claimed a support from his property ; but that her husband had used every stratagem in bis power to deprive her of the benefit of this settlement, and particularly, that he liad conveyed to one James McKinney, who was a Defendant, and who had married an illegitimate daughter of Micajah by the Defendant Susannah, a large proportion of his property, consisting of slaves and of a tract of land in Rutherford county, upon a pretended sale, but in fact upon a secret trust, to hold it with its increase, and accumulations, for the benefit of the Defendant Susannah, and her children by Micajah, That Miéajalu Picket, died in the year 1822, having by will, devised the whole of his estate, except some small legacies to his children, by the Plaintiff Kcxdndh, to the defendant Susannah and her illegitimate children, and appointed McKinney and one Biram Whitehead, his executors. It was then averred in the bill, that the testator Micajah died at his usual residence in the State of South-Carolina, which was also the domicile of the Plaintiffs,,and one of the executors and most of the legatees, and where the greater part of his property was situate $ that the Plaintiffs had filed their hill in the Court of Chancery of that State, against the ex* ecutors and legatees, who were all personally served with process and contested tiie suit} that upon the hearing of the cause, the Court decreed that the bond delivered on the lt>th of January, 1805, b>y Micajah Ticket to the Plaintiff Jiexanah, was in Equity binding upon volunteers — and that the settlement made on the 12th of December,. 1800, by Micajah & Kexanah Picket of slaves and other pro. perty upon six of their children, was valid, so far as respected volunteers claiming under Micajah, That the deeds made by the testator Micajah to; McKinney,, of slaves.and land in the county of Rutherford, were-fraudulent, and void against the claim of the Plaintiffs j, and also that the Plaintiffs should have satisfaction fo the amount due upon the bond delivered to the, Plaintiff Kexanah by the testator, out of the property of which he died possessed, and out of that conveyed ta McICLn* ney, so far as the same was within the reach of the pro. cess of the Court. It was then charged, that a large sum remained due upon that decree,, after exhausting the property of the testator within the jurisdiction of the Courts of South-Carolina; that the present Defendants,, who were the executors and legatees of Micajah Picket, with a view of evading that decree, had removed some of the personal property to this State. The Plaintiffs prayed a discovery and account of all the property which the Defendants had received from Micajah Picket, and that they might have execution against the same, or any other property of the testator with in this State, to satisfy the balance due upon the decree of the Court of Equity for the State of South-Carolina.
    
      The Defendants, who were the executors and legatees of Micajah Ticket, in their answer, admitted most of the material facts set forth iri the bill. They contended, however, that the decree which the Plaintiffs had obtained in South-Carolina, had been satisfied either from sales made of the testator’s property in South-Carolina, or by advancements made to the children of Keannah,who. were entitled to a part thereof, by the testator, either in his lifetime or by his will- — .they insisted that the bonds and deeds executed by the testator and the Plaintiff Ke-saanaJi, and set forth in the bill, were intended for the. adjustment of family disputes, and should be considered as a family settlement ; they therefore insisted that all advancements made by the testator, either hy will or otherwise, to any of his children by the Plaintiff ICcza-nah, should be considered as a satisfaction pro tanto thereof, and as equivalent for the property settled upon his children, by the deed of December lath, 1800.
    The Defendant McKinney, admitted the conveyance to him, by the testator, of a tract of land in Rutherford county, and of certain slaves; he contended that he was a purchaser for value, as in consideration of the conveyance he had agreed to attend to the estate for the term of ten years, working thereon himself, together with the negroes conveyed to him, and one of his own, to keep an account of the profits of the plantation, and at the end of the term, to convey five-sevenths of the original value, together with its increase^and accumulation, to five children of the testator by the Defendant Susannah. The other Defendants, who were the children of Susan-nah, some of whom were infants, insisted that they were creditors to the value of their labour, and claimed the possession of their legacies until they were severally satisfied the amount thereof.
    The will of Micajah Picket, and a copy of the record of the suit in South-Carolina, were filed as exhibits. By the first, it appeared that he devised property of differ-cnt kinds to the Plaintiffs, who were his children, and charged his debts upon his lands in the county of Buncombe. The contents of the latter have been anticipated in giving a statement of the bill and answers. It appeared however, that several of the Defendants were infants, and answered by their guardian ; but no day was given them upon their full age to show cause against the decree.
    The cross bill prayed a discovery and an account of the advancements, made by Micajah Picket to any of his children.
    Replications were taken and proofs filed ; they principally related to the amount of the advancements, which the Defendants insisted should be brought into account.
    
      Gaston & Badger, for the Plaintiffs in the original bill,
    contended,
    That thedeeree made in South-Carolin a, was conclusive upon this couní — that proceedings in Courts of Equity were as fully embraced by the constitutional provision and the act of Congress upon that subject, as those of a court of Law. (Mills v. Buryee, 7 Cranch 481. Hampton v. McConnell, 3 Wheaton 234).
    That, independently of the constitutional provision, upon principles of national comity, it is presumed to be correct, until plainly impeached.
    It does not appear'judicially to the Court what is the law administered in South-Carolina; but admitting it to be that of the English Chancery, the decree is correct. Chancery does not aid pure volunteers; but it enables those whose rights are founded upon what is termed a meritorious consideration, to assert them. Conveyances made without a valuable consideration, to a wife or children, are enforced in England, against those which are purely voluntary. (Coleman v. Sarel, 3 Bro. Ch. Rep. 12. 1 Ves, fr. 50. Taylor \. Jones, 2 Aik. 600, Ambler 468).
    
      But here, there is a consideration of actual valuó moving from the wife, which is sufficient even at law, to support a promise to her children, viz. the abandonment of all right to a support at the hands of her husband.
    
      Wilson, for the Defendants,
    contended strenuously, that the lands in Rutherford, were not liable to- satisfy the decree, and Ire insisted that this Court was not bound to enforce the decree, made in South-Carolina, unless they were satisfied with the principles upon, which it was founded. It can have no greater obligation here, than it has in the Courts of South-Carolina, and there it can be reversed, either upon a bill of review, or a petition for a rehearing. He contended, that the whole matter, as it regarded the land in this State, was coram non judice, and void. Besides, the decree' was plainly erroneous, as it was pronounced against infants, and they had no day given them to show cause against it. But it was also incorrect in the law which it administered', if we take it for granted, that the Courts of Equity in South-Carolina, are governed by the rules of the English Chancery. In England, when both parties have the same merits, Equity does not interfere between them,, but leaves them to assert their rights at law. Thus where both the parties are purchasers, the equity being equal, the law must decide. So also, when both are volunteers, lie who lias the legal title must prevail. (1 Fondlanque SSS to 350). Executed voluntary agreements, prevail against those which are executory. (Bunn v. Winihrop, 1 Johns. Ch. Rep. 329J.
    
    Tire bond given to the Plaintiffin this case was purely voluntary, if not as to the mother, surely it was so as to the children. But a bond given to the mother of an illegitimate child, is supported in Equity; and where property is given to an illegitimate child, who is in possession, no instance can be found where it has ever been taken away, except for an actual creditor. (Bunn 
      v. Winthrop. Jinnandale v. Harris, 2 P. IF. 432, Syder V. Kidder, 10 Fes. 360).
    Here, then, there are two sets of volunteers, with a moral obligation on the part of both, on him under whom they claim, the one with a legal title, and in possession ; the other with a mere executory agreement. Under these circumstances, tire law must prevail.
   Hall, Judge.

— I am willing to give to this decree all the obligatory force, which is attached to it in South* Carolina ; and/there, it is binding upon the parties, while it remains in force; but it is not unalterable; I suppose it may be reversed there, in whole or in part, by bill of review, either for error in law, or for matter of fact, properly brought before the Court. It cannot be more obligatory here than it is there. If it could be reversed there, and the cause of reversal is apparent to this Court, where the execution is prayed for, that cause of reversal may be examined, as if it was reheard upon a bill of review. This Court.has no other way of coming at it; however I give no opinion on this part of the case, because 1 concur In the principles, upon which the decree is based. I think the contract between Micajah Picket & Kezanah his wife, in the year 1805, was founded on a good, and meritorious consideration. That in point of obligation, it is more than equal to settlements, made after marriage; because in this case a compensation for the injury be had done her, the continuation of which was contemplated for the rest of his life, viz. in withdrawing his protection from her, and withholding from her any thing like a suitable support, formed a consideration in addition to that upon which such settlements are supported. The settlement upon the children was also founded on a meritorious consideration, and the more to be enhanced, as it announced that a father’s care was about to be withdrawn from them also,

The decree in part has been executed in South-Caro'-lina, and it remains id be executed in this State; .and the Plaintiffs are entitled to a decree for that purpose. But what property shall bd liable to to that decree, is made a question. It is admitted, that the Buncombe lands are liable, as well as other property which belonged to the testator, undisposed of at his death.

I think it equitable, that any donations made by Picket to the Plaintiffs, after the date of the contract, should be brought into the actount.

It is contended, that the lands in Rutherford ton are not liable. These lands were conveyed in the year 1817, to the illegitimate children of Micajah Picket, but not upon a valuable consideration. The conveyance was voluntary, and I am inclined to think they are liable. It is held, in Taylor v. Jones (2 Atkyns 600) that a settlement on a wife and children after marriage, is a valuable consideration as to the husband, and even against a a voluntary conveyance. If a voluntary conveyance is made, and there is a defect in it, so that it cannot operate at law, equity’Will not decree an execution ofitj but if it is intended as a provision for younger children, the rule is different. (Allen v. Arme, 1 Vent. 365. Coleman v. Sarel, 1 Ves. jr. 54 Ibid. 3 Bro. 14 — Cases in Equity ab. 24 — Bacon’s Abr. Agreement. B. 2).

From tfiese authorities, it would seem that the lands in Rutherford are liable to the Complainants’ demand. But if the Defendants have enhanced their value by la-bour, that additional value should be brought into the account. On these different points, a reference should he made to the Master.

Henderson, Judge.

— I mean not at present, fo express an opinion upon the conclusiveness of the decree of the Court of South-Carolina, upon matters within its jurisdiction ; but I am inclined to believe, that it stands before us as upon a bill of review, liable to be reversed for error in law apparent upon its factor to be impugned by facts since discovered. Greater sanctity cannot be claimed for it here# than is givers it in the State where it is made, and there, I presume it may be reviewed, and reversed for errror. And if it cannot be resisted here# when attempted to be enforced by bill, our Courts would be open to enforce the decrees of other States, and shut to an examination of their errors | for we cannot bring them before us by bill of review. This is in accordance with the Constitution of the United States, and the act of Congress j it is giving the decree the same faith and credit here, that it has in the State where it was made. (Baker & Child, 2 Vern. 227. West v Skip, 1 Ves. sen. 245.) But whatever may be the effect of the decree, op judgment of a Court, either of our own or another State, upon a matter within its jurisdiction, it is clear, that upon a matter without it, the decree of judgment is a nullity every where j for all the faith attached to them, arises from the fact, that the Court is authorised and appointed % law to act upon the subject.

I think, that part of this decree was given upon a matter within the jurisdiction of the Court, and part upon a matter without it.' It was competent to the Court to set up the contract between Picket and his wife, to order its payment by the executor and legatees of Picket, out of the assets of the estate, wherever situated, and to remove every obstruction to the process of the Court, issued for the satisfaction of the decree. These Defend-' ants, as legatees of Picket, are affected by the decree and it is evidence against them, so far as they claim any thing under the will. But as donees, or grantees of the Butherford lands, I think that the decree affects them not; for with great respect and deference for the distinguished gentleman who pronounced it, I think the Court had no jurisdiction. For although it is admitted, that the Court, having the power to make a decree, has, as incidental thereto# the power of making that decree effectual, and may, by virtue of that incidental power,’ remove every obstruction to the process of the Court,' in carrying It into execution; yet this incidental power can be carried no higher than the source from which it arises — the right to enforce the decree. If therefore, the obstruction did not, in fact, impede the process of the Court, the Court bad no right to interfere with it, or pass upon it. It is the fact of obstruction, which gives rise to the power of removal. In this case, the obstruction arose from the locality of the lands, and not from the claim of the Defendants. Therefore, all that was said or done, in regard to the Defendant’s title, and every thing else in relation to them, as donees or grantees of these lands, is a perfect nullity. But to expedite the business, the Clerk and Master will take an account of all payments, advancements or donations, madebyPic-ket to the Complainants, or either of them, since the deeds of 1805. He will also take an account of the value of the labor and services of the Defendants, the illegitimate children, which came to the use of Picket, deducting the expenses of rearing them for as they are deprived of the charities of children, they are entitled to the rights of strangers. He will also take an account of the consideration paid, or given upon the deed of 1816, and report to the next Court. The Sheriff of Buncombe will sell the Buncombe lands, upon the premises, upon a credit of one, two or three years, giving forty-one days notice at the Court-house, and five other public places^ and report to our next Court.

Taylor, C. J.

dissentiente...Ji the assistance of this Court were sought to effectuate a decree of a foreign Court of Chancery, the merits of it would be open to examination, and we should be convinced of Us justice and propriety, before we proceeded. Like a foreign judgment at law', it would be but prima facie evidence of the justice of the demand. But when the Constitution of the United States has declared, that “full faith and credit shall be given in each State, to the public acts, records and judicial proceedings of every other State ; and the Congress may by general laws, prescribe the manner in which such acts, records and proceedings, shall be proved, and ihe effect thereof.” And further, where by the act of 1790, ch. 11„ Congress did provide for the mode of authenticating the records and judicial proceedings of the State Courts, and then declared that the “ records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them, in every Court within the United States, as they have by law or usage in the Courts of the State, from whence the said records are,, or shall be taken.” I do.not see how, in point of effect, a final decree can be distinguished from a judgment at law, for the term “judicial proceedings” includes both j. and if this decree would in South-Carolina be deemed conclusive on the rights of the parties, it must be so here, so far as the Court of Chancery in Soutii-CaroSina had jurisdiction. It has been said by an eminent Judge, that as to foreign sentences or judgments, there “ is only one way in which they are examinable, and that is where the party who claims the benefit of it, applies to our Court to enforce it. When it is thus voluntarily submitted to our jurisdiction, wc treat it, not as obligatory to the extent, to which it would be obligatory perhaps in the country in which it was pronounced, nor as obligatory to the extent which by our law sentences and judgments are obligatory, not as conclusive but as a, matter in pais, as a consideration prima facie to raise a promise, we examine it as we do all other considerations of promises, and for that purpose, we receive evidence of what the law of ihe foreign state is, am! whether the judgment is warranted by that law. In all other cases, we give entire faith and credit to the sentences of foreign Courts, and consider them as conclusive upon ns.” (Ld. Eyre, C. J. in Philips v. Hunter, 2 H. Bl. 410.)

In considering the effect of a judgment or decree, pronounced in another State, and duly authenticated here, it appears to me that the only question open for discussion is, whether the Court had jurisdiction of the cause and the parties. So far as the Court pronouncing them had jurisdiction, they are entitled in this Court to “full faith and credit; ” the jurisdiction of the Court only, and not the merits of the judgment or decree are enqui-rabie into.

The Defendants were made parties to the suit in Chancery in South-Carolina, and so far as their rights were decided upon in that decree, I.hold it to be of the same conclusive character, as if pronounced by a Chancery Court in this State; and that we are not permitted, under the Constitution, and the act of Congress giving effect to it, to pronounce a different decree upon any of the rights of the parties then brought into contestation. That the infantDefendants were not allowed a day, after their attaining full age, to show cause against the decree, may be, and I think is, a cause for reversing it upon a review in South-Carolinabut when the decree comes before us unreversed, we cannot, on account of that objection, withhold from it faith and credit, any more than in an action of debt upon a judgment in another State, we could refuse to sanction it, because there were errors on the face, unconnected with the Court’s jurisdiction. Though the deeree of the Court of South-Carolina could only operate in personam, as to the land lying in this State, yet now that this Court is called upon to carry that decree into effect, they ought to do so, to the extent of jurisdiction possessed by the South-Carolina Court. After.a minute examination of all the cases on this subject, the result is thus expressed by the Supreme Court of the United States $ that in a case of fraud of trust or of contract, the jurisdiction of a Court of Chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that Court may be affected by the decree. (Massie v. Watts, 6 Crunch 160.) This is a case of the description and character, on which that Court had a right to pronounce an opinion; but my brothers do not view the subject in this light, and therefore the reference must be entered up, as they have directed.  