The warrants and orders sued on in this case were payable to the
order of Matthew Carr, deceased, who was a citizen of the
Louisiana. They were assets of his estate, and the plaintiff in
error acquired title to them through a judicial sale made by the
sheriff of the Parish of Concordia on the 22d day of May, 1868,
under authority of an order of the probate court of said parish
having the administration of said estate. The plaintif in the suit
was at the date of his said purchase, and at the date of filing his
original petition herein, a citizen of the State of Missouri, and
the defendant was a citizen of the State of Louisiana.
Held that the plaintiff came within the restriction of
§ 1 of the Act of March 3, 1875:
"Nor shall any circuit or district court have cognizance of any
suit founded on contract in favor of an assignee, unless a suit
might have been prosecuted in said court to recover thereon if no
assignment had been made, except in cases of promissory notes
negotiable by the law merchant, and bills of exchange,"
and that the circuit court below correctly held that
jurisdiction could not be sustained.
This was a suit brought in the Circuit Court of the United
States for the Eastern District of Louisiana by William C. Glass, a
citizen of the State of Missouri, against the Parish of Concordia
to recover on certain warrants or orders for levee work, and,
having been dismissed for want of jurisdiction, came to this Court
on the following certificate:
"This cause was tried at the present term of the court solely on
the defendant's exception to the jurisdiction of the court, and it
appearing from the jurisdictional facts alleged in plaintiff's
petition, admitted to be true by said exception, that the warrants
and orders sued on were payable to the order of Matthew Carr,
deceased, who was a citizen of the State of Louisiana, and were
assets of his estate, and that the plaintiff acquired title thereto
through a judicial sale made by the sheriff of the Parish of
Concordia on the 22d day of May, 1868, under authority of an order
of the probate court of said parish having the administration of
said estate; that plaintiff
Page 176 U. S. 208
at the date of his said purchase and at the date of filing his
original petition herein, on the second day of November, 1877, was
a citizen of the State of Missouri, and that the defendant was a
citizen of the State of Louisiana. Under the state of facts, the
only question at issue upon the trial of said exception was whether
the case, for the purpose of jurisdiction, comes within the
following restriction imposed by section 1 of the act of Congress
approved March 3, 1875;"
"Nor shall any circuit or district court have cognizance of any
suit founded on contract in favor of an assignee, unless a suit
might have been prosecuted in such court to recover thereon if no
assignment had been made, except in cases of promissory notes,
negotiable by the law merchant, and bills of exchange."
"And the court, for the reasons set forth in the written opinion
hereto annexed and made part hereof, has this day maintained the
defendant's exception to the jurisdiction of this court, and
dismissed plaintiff's petition, with leave to amend, if so advised,
and without prejudice, and now grants this certificate for the
purpose of enabling the plaintiff to obtain a review by the Supreme
Court of said jurisdictional question under the fifth section of
the Act of Congress approved March 3, 1891."
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
Counsel for plaintiff in error state in their argument:
"We concede that neither Carr, his heirs, nor the administrator
of his estate, nor the sheriff who made the sale, nor the judge who
ordered the sale, possessed the necessary citizenship to sue on the
warrants in the circuit court at the time this action was brought.
But we assert on principle that a purchaser at a sale made by
authority of a probate court
Page 176 U. S. 209
derives title from none of these sources, but takes title by the
adjudication of the law acting directly,
in rem, upon the
property itself."
The eleventh section of the Judiciary Act of 1789 provided:
"Nor shall any district or circuit court have cognizance of any
suit to recover the contents of any promissory note or other chose
in action in favor of an assignee unless a suit might have been
prosecuted in such court to recover the said contents if no
assignment had been made, except in cases of foreign bills of
exchange."
In
Sere v. Pitot,
6 Cranch 332, the assets of an insolvent partnership passed to
syndics appointed for the benefit of creditors under the laws of
the Territory of Orleans, and this Court held that the syndics
could not sue in the federal courts if the insolvents could not
have done so. Mr. Chief Justice Marshall said:
"The circumstance that the assignment was made by operation of
law, and not by the act of the party, might probably take the case
out of the policy of the act, but not out of its letter and
meaning. The legislature has made no exception in favor of
assignments so made. It is still a suit to recover a chose in
action in favor of an assignee, which suit could not have been
prosecuted if no assignment had been made, and is therefore within
the very terms of the law. The case decided in 4 Cranch was on a
suit brought by an administrator, and a residuary legatee, who were
both aliens. The representatives of a deceased person are not
usually designated by the term 'assignees,' and are therefore not
within the words of the act."
The applicable language of the first section of the Act of March
3, 1875, 18 Stat. 470, c. 137, which regulated the jurisdiction of
the circuit courts when this suit was instituted, was as
follows:
"Nor shall any circuit or district court have cognizance of any
suit founded on contract in favor of an assignee, unless a suit
might have been prosecuted in such court to recover thereon if no
assignment had been made, except in cases of promissory notes
negotiable by the law merchant and bills of exchange."
The differences between this provision and that of the act
Page 176 U. S. 210
of 1789 are not material here.
Sere v. Pitot was
decided in 1810, has been cited many times, frequently, with
approval, on analogous points,
Smith v. Railroad Company,
99 U. S. 398;
Corbin v. Black Hawk County, 105 U.
S. 659;
Mexican National Railroad v. Davidson,
157 U. S. 201,
though criticised in
Bushnell v.
Kennedy, 9 Wall. 387, has never been overruled, and
is decisive of the present case.
The title to Carr's estate passed on his death to his heirs.
La.Rev.Civil Code, arts. 940
et seq. These warrants were
sold at a judicial sale under authority of an order of the probate
court of the parish, having the administration of the estate, by
the sheriff of that parish. Glass became the purchaser, and the
adjudication made and recorded by the sheriff gave him title.
Rev.Civil Code, arts. 2622, 2623. And, moreover, the Code provided
that "all the warranties to which private sales are subject exist
against the heir in judicial sales of the property of successions."
Art. 2624;
Deloach v. Elder, 14 La.Ann. 673. The title
thus obtained did not devolve on Glass in the same manner as the
law devolves title by its own operation on an executor, an
administrator, an heir, a universal legatee, or a receiver, but was
transferred by the sale and the adjudication. The purchaser at
sales on judgment and execution similarly obtains title through the
act of the executive officer.
Conceding that proceeding in settlement of estates in probate
courts are in themselves proceedings
in rem, yet the title
to property ordered to be sold in such proceedings is not
transferred by the mere order of sale, but by the sale taking place
as prescribed. Its validity depends on the jurisdiction of the
probate court; its transfer is accomplished in the designated way
through the designated instrumentality.
In our opinion, Glass came within the restriction of the
statute, and the circuit court correctly held that jurisdiction
could not be sustained.
Judgment affirmed.
