
    
      Aldridge and Claiborne v. Giles and Others.
    Saturday, October 29, 1808.
    Decree — Directing Conveyance outside Jurisdiction*— Evidence of Title in Ejectment. — A decree of the Court of a County requiring- a defendant residing within its limits to execute a conveyance for lands lying in another County, can be enforced upon the person only of such defendant, and does not, of itself, vest any legal title in the complainant. If offered as evidence of such title in an action of ejectment, it ought not to be received.
    Same — Same—Same.—Quaere. For what purpose, and to what extent, could it be received as evidence in such action?
    Same — Directing Conveyance within Jurisdiction — Evidence of Title in Ejectment.- — Quaere. Is a decree of a Court of Equity for a conveyance of lands lying within its jurisdiction admissible in an action of ejectment between the parties to such decree, or persons claiming under them as evidence of a legal title, or only as matter of inducement to other evidence?
    Same — When Interlocutory. — A decree, that, unless the defendant answer the bill before a certain day. then the tract of land in the bill mentioned, shall be surveyed, and part thereof allotted to the complainant, and that the defendantshallexecute to the complainant a legal conveyance for such part, and pay the costs of suit, is not Anal, but interlocutory only.
    On the trial of an action of ejectment in the Petersburg District Court, brought by William B. Giles and others, against Jeffery Aldridge and John H. Claiborne, to recover possession of a tract of 206 acres of land, lj'ing in Dinwiddie County, ‘the defendants offered in evidence a decree of the County Court of Amelia, between Mary Claiborne, (under whom the defendants claimed,) complainant, and John Tabb, (under whom the plaintiffs claimed,) defendant, together with the bill and proceedings in the said cause, as evidence of a title in the defendants to the land in the declaration mentioned;” which bill was exhibited on the 24th of November, 1791, by Mary Claiborne, as widow and relict of Augustine Claiborne, deceased, for the purpose of rectifying an error committed in a deed, which, during her coverture, had been executed by her husband and herself, for 400 acres, part of a tract of 1,215 acres, lying in Dinwiddie County, and belonging to her in her own right. It was charged that, in consequence of a fraud practised by Robert Ruffin, to whom the deed was made, the line which was intended to comprehend four hundred acres only, was so run as to comprehend six hundred and forty-six; that, notwithstanding this circumstance was well known to John Tabb, the defendant, he had purchased and received a deed for the whole quantity of land from Robert Ruffin. The decree was that, the defendant having stood out all process of contempt in not appearing and answering the said bill, the same was taken for confessed; and thereupon it was decreed and ordered that, unless the defendant should, at *or before the next May term, answer the bill, then the 646 acres of land therein mentioned, should be resurveyed by the surveyor of Dinwiddie County, and 400 acres allotted to the defendant; and that the defendant should execute to the complainant, a legal conveyance in fee-simple of all right and title to the aforesaid 646 acres of land, except the 400 to be allotted to him as aforesaid, and that he pay unto the complainant her costs. In obedience to this decree, a survey and plat (which appeared in the record) was made on the 18th of October, 1792, of the whole tract contained in the deed from Claiborne and wife to Ruffin, which was found to contain only 606, instead of 646 acres; and 400 acres were laid off at the lower end, and 206 acres (the residue) at the upper end thereof. But, on the 24th of November, 1798, on the motion of Frances Tabb and William B. Giles, administratrix and administrator of John Tabb, deceased, leave was given them to file a bill of review; on the ground that the said decree was erroneous, “because a final decree was pronounced without any answer, and without any interlocutory decree against the said John Tabb;” after which the suit abated by the death of Mary Claiborne.
    The plaintiffs in ejectment objected to the admissibility of the decree aforesaid, as evidence of a title in the defendants to the said lands; “whereupon the Court refused to admit the said decree as evidence of any title in the defendants to the said land, because they considered the said decree as a decree nisi, and not as a final decree ;” to which opinion the defendants filed a bill of exceptions, and (a verdict and judg. ment being entered for the plaintiffs) prayed an appeal to this Court.
    Botts and George K. Taylor, for the appellants, contended, 1. That the decree ought to have been received as evidence, because all the parties to this suit claimed either under Mary Claiborne or John Tabb, the parties to the decree; in support of which point they cited 2 Esp. N. P. *758, Sir T. Raym. 404, Chichester v. Philips, 3 Term Rep. 639, Cross v. Salter, and also the Rev. Code, 1 vol. c. 151, s. 53, p. 306, to shew that a decree in Chancery is equally obligatory with a judgment at common law, and may be carried into effect by the same writs of execution.
    2. Though the land lay in Dinwiddie, and the decree was obtained in Amelia, it operated upon the person of John Tabb to compel him to make a title, notwithstanding it did not, of itself, convey a complete title; and therefore, he had no right to maintain an ejectment for the same land; the decree being in force against him.
    3. This was a final decree, the Court having proceeded to give costs; and though, if erroneous, it might have been reversed by the Superior Court of Chancery, yet, that having never been done, the District Court of Petersburg could not reject it for error. But, in fact, there was no error; for the practice of serving a decree nisi on the defendant previous to a final decree, is not directed by law, but a mere usage of the Courts of Chancery. Yet, even if this was a decree nisi only, it was still sufficient to prevent Tabb, or his representatives, from recovering in ejectment, and ought, as a decretal order, to have been received in evidence. 
    
    Hay, for the appellees, observed, that the question in the District Court, was not whether the decree was evidence, (in general terms,) but whether it was evidence of title in Mary Claiborne. It was offered for this express purpose, and therefore, was properly rejected; for the Court could only decree a conveyance to be made by John Tabb, but could not decree a title, since all the authorities are conclusive that no title passes without a deed: for though she had taken her writ of habere facias posses-sionem, and obtained possession of the land, she would still have had no title:
    *To this it was objected that, notwithstanding the decree was offered for an improper purpose, as evidence of title, the Court ought not to have rejected it altogether, but to have received it for the proper purpose, which was to bar the action of ejectment; or, at any rate, as inducement to other evidence which the defendants might have adduced; to shew, for example, Mr. Tabb’s acquiescence in the decree.
    Hay denied that the evidence of the decree could operate to bar the ejectment; for surely^ a decree in Chancery could not have a greater effect than a judgment in ejectment, which, it is well known, cannot be given in evidence in opposition to another action of the same nature for the same land.
    He contended that a bare inspection of the decree proved it to be interlocutory and not final; and, although in this collateral way, its propriety could not be investigated, yet its character must; to ascertain whether it be a decree or not. Every order of a Court of Chancery is either interlocutory or final; and, of course, any order which is not final, must be interlocutory. There is, therefore, no definition of an interlocutory decree; but a final decree is that which concludes the cause; after which no order remains to be made by the Court,  If, in this case, the Court, upon the return of the survey, had decreed Tabb to convey, then it would have been final. The practice is uniform in this country, whenever a party is directed to do a thing, “unless” he comply with certain conditions, that his failure to do so must be entered on the record, previous to, or at the time of, the final decree; and such conditional order is called a decree nisi. But, if the plaintiff had applied to the Court to make this decree final, it would not have done so, because Tabb had no notice of the decree nisi, a copy of which ought to have been served upon him.
    ^Thursday, November 3. The Judges gave their opinions.
    
      
      Decree — Directing Conveyance outside Jurisdiction. —See foot-note to Guerrant v. Fowler, 1 Hen. & M. 5.
    
    
      
      Decree for Conveyance — Evidence of Title in Ejectment. — A decree requiring the execution of a conveyance to the plaintiff, does not, of itself, vest any legal title in him. And such decree should not be received as evidence of legal title in an action of ejectment. Nelson v. Triplett, 81 Va. 239, citing the principal case.
      See monographic «otó on “Ejectment” appended to Tapscott v. Cobbs, 11 Gratt. 172.
    
    
      
      Decrees — When Interlocutory. — See foot-notes to Grymes v. Pendleton, 1 Call 54; Fleming v. Bolling, 8 Gratt. 292, and monographic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615. The principal case is approved in Royall v. Johnson, 1 Rand. 427; Cocke v. Gilpin, 1 Rob. 35; State v. Hays, 30 W. Va. 120, 3 S. E. Rep. 184; Manion v. Fahy, 11 W. Va. 493.
      Same — Same—Effect of Parties Remaining in Court. —The cases heretofore decided to be interlocutory are cases in which all the parties remained in court, and in which it was competent for them, by motion, to have a rehearing, and a correction of the decree, and this capacity to move a rehearing results from the consideration that the parties remained in court. Alexander v. Coleman, 6 Munf. 334, citing Templeman v. Steptoe, 1 Munf. 352; Alctridoe v. Biles, 3 Hen. & H. 136. I
    
    
      
       See Farley v. Shippen, Wythe’s Rep. p. 135; Guerrant v. Fowler and Harris, 1 Hen. & Munf. 5.
    
    
      
      
         aiflsp. 758.
    
    
      
       Hind’s OR. Frac. 429, 3 Tuck. Bl. 452.
    
   JUDGE TUCKER.

On the trial of this cause, the defendants offered in evidence a decree of the County Court of Amelia between Mary Claiborne, under whom they claim, and John Tabb, under whom the plaintiffs claim, as evidence of a title in the defendants to the lands in question, whereby it Was ordered and decreed, that, unless the defendant, (John Tabb,) who was in contempt for not appearing and answering the bill, should, on or before the Mav term then next, (1792,) answer the complainant’s bill, then the 640 acres of land in the bill aforesaid mentioned (lying in the County of Dinwiddie) be resurveyed by the surveyor of Dinwiddie, and that he allot to the defendant, 400 acres, according to the contract and plat of land in the said bill mentioned; and that the said defendant do execute to the complainant, a legal conveyance in fee-simple, of all right and title to the aforesaid 640 acres, except the four hundred to be allotted to him, as aforesaid; and that he pay the complainant her costs.

To the admissibility of which decree as evidence of a title in the defendants to the said lands, the plaintiffs objected; and the Court refused to admit the same as evidence of any title in the defendants; because they considered the decree as a decree nisi, and not a final decree. And thereupon the defendants tendered a bill of exceptions, which was allowed.

I find it laid down as a general rule, that, wherever a matter comes to be tried in a collateral way, the decree, sentence or judgment of any Court, having competent jurisdiction, is conclusive evidence of such matter; and, in case the determination be final in the Court of which it is a decree, sentence or judgment, such decree, sentence or judgment, will be conclusive in any other Court having concurrent jurisdiction,

In consequence of the first part of this rule; if, in ejectment, a question arose about the marriage of the plaintiff’s father and mother, a sentence of the Ecclesiastical Court, in *a cause of jactitation, would be conclusive evidence, But this part of the rule must be taken with this restriction, that the matter determined by such decree, sentence or judgment, was determined, ex directo, and not in a collateral way. As if a suit were instituted in the Ecclesiastical Court by A. against B. for a divorce for adultery with D. and she were to plead that she were married to D. and, upon proof made, the Court should so pronounce, and accordingly dismiss A.’s libel; yet that would be no evidence in an ejectment in which the marriage between B. and D. came in dispute, But, if a man devise lands by the force of the statute of wills, the probate of the will in the Spiritual Court, cannot be given in evidence; for all proceedings there, relating to lands, are coram non judice. This last case is, in principle,' opposite to that before us. The Courts of Westminster-Hall take notice ex officio of the jurisdiction of all inferior Courts; and, where they proceed in any manner whatsoever beyond their proper bounds, reject their proceedings as evidence. So, in this country, the superior Courts are bound to take notice of the jurisdiction of all inferior Courts, whether brought before them directly, by appeal or writ of error, or, collaterally, as in the present case. We are bound then to take notice, that the County Courts have limited local jurisdictions, and neither, as Courts of-Law, can hold pleas concerning lands lying in any other County, nor, as Courts of Equity, can act in rem, as to any such lands, although they may act in personam, as to any defendant residing within their jurisdiction, Now, here, the decree is partly in rem and partly in personam. For it directs the lands to be surveyed though lying in Dinwiddie, (another County,) and 400 acres thereof to be allotted to the defendant. So far the decree is .in rem. Then, as to the remainder of the decree, it directs the defendant to make to the complainant a legal title in fee-simple, for all of the 640 acres which shall remain after allotting the 400 acres to him.

This is such a decree as a Court of Chancery may regularly make against a defendant residing within its limits. But *it is such a decree as could’ never be carried into execution by any process whatsoever, if the defendant should obstinately persist in refusing to perform it, by executing a conveyance: and, since the Court, in this case, could not act in rem, until the decree in personam be performed, the complainant cannot have a legal, but merely an equitable title to the lands mentioned in the decree. And, though Courts of Equity consider that as done, which ought to be done, Courts of Law do not. The decree, then, as it relates to the survey and allotment of the 400 acres of land in another County, being coram non judice, and, as it might operate, in personam, against the defendant, John Tabb, being executory only, and not vesting a legal title in the complainant, but an equitable one only, was, I think, rightly rejected as evidence of a title on the trial of the ejectment in a Court of Law. These principles, I consider, as settled in the case of Penn v. Lord Baltimore, 1 Vez. Rep. 454, and the cases of Farley v. Farley, in the late Chancellor Wythe’s Reports; and Guerrant v. Fowler, &c., 1 Hen. & Munf. 5, before the present Chancellor of the Richmond District, appear to me to be also bottomed upon the decision in the former case. In 1 Fonb. 34, this matter is explicitly stated, note(9) : “Where the subject in dispute is not within the jurisdiction of the Court, it •is certainly true that the decree of the Court operates merely in personam; but, if the lands lie within the jurisdiction of the Court, and the defendant refuse to perform the decree, (as to give the plaintiff possession,) the Court will enforce its decree by a writ of assistance, which is for that purpose directed to the sheriff.’’

Upon these grounds, whether the decree be considered as final, or as an interlocutory decree only, (in which light it appears to me,) I am of opinion the judgment of the District Court ought to be affirmed.

JUDGE ROANE.

This case is extremely plain. On a trial involving the legal title, only, of the land in controversy, *the defendant offered, as evidence of a title, a decree which is not only interlocutory, but, 'if final, did not convey the .legal title. The opinion of the District Court, therefore, is clearly correct, unless it be that it does not go far enough, as it seems to bottom itself only upon the position, that the decree is a decree nisi, and not a final one. I am, therefore, of opinion, that the judgment be affirmed.

JUDGE FLEMING.

The points submitted to the consideration of the Court by the counsel are, 1st. Whether the decree of the County Court of Amelia, made the 22d day of March, 1792, in a suit between Mary Claiborne, plaintiff, and John Tabb, defendant, was a final or an interlocutory decree only? An,d, 2d. Whether the decree, with the record, in that suit was, or was not, proper evidence to go to the jury, on the trial of the ejectment in the District Court of Petersburg?

It appears, on inspection, to have been a decree nisi, and therefore not final, but interlocutory; the parties still remaining in Court, and a day being given to the defendant, Tabb, to answer the bill of the plaintiff; although the administrators of Mr. Tabb, on tne 24th November, 1798, on motion to the County Court of Amelia, obtained leave to file a bill of review to the said decree, and immediately filed the same, in which they state the said decree to be final; an"d a subpoena issued against the said Mary Claiborne to answer the bill of review, on which subpoena the sheriff made a return “not found;’’ and on the 17th day of August, 1801, the said suit was abated on the death of the said Mary Claiborne.

It appears to me that the Court was correct in refusing to suffer the said decree, with the record annexed, to go as evidence to the Jury, on the trial of the ejectment, as it gave no title to the defendants; and I believe it is a point not yet settled, that a County Court has jurisdiction to decree a title to lands lying in another County; (a contrary opinion *seeming to prevail;) but, on this point, I give no opinion, as I think it an important one that ought to be decided on solemn argument. 
      
       Bull. N. P. 244, 2 Esp. 758, 1 Harr. CR. Frac. 583.
     
      
       CartR. 225.
     
      
       2 wilson, 122, 127, Robinson v. Crutcbley.
     
      
       Bull. N. P. 214, '245.
     
      
       4 Inst. 213.
     
      
      MX See also 3 Atk. 587.
     