I concur in the opinion that the questions, whether there was a valid sale or transfer of the safes to the plaintiffs, and whether title had passed to the latter before the defendants’ attachments issued, are to be determined by the law of New York, and not of Illinois. The parties arc residents and citizens of this state. ■ Bates, the assignor, re
Now, by the law of this state, was there á valid sale and transfer of the projierty to.the plaintiffs prior to the issuing of the attachments; for if there was, the defendants were not justified in attaching it for the debt of Bates. On the argument, I supposed this to be the principal, and the gravest question in the case. Upon a careful examination, however, I have become satisfied that the transfer was valid, and that Bates, by the instrument executed on the 2d November, 1857, effectually divested himself of all title to the property itself. He manifestly intended to transfer the property directly, to the plaintiffs, his creditors, by way of security. No trust was designed; the legal effect of the provisions of the assignment was not to create any; and the legal title passed immediately and absolutely to the plaintiffs. Bates never could have invalidated the sale and reclaimed the property, on the ground of fraud, or that delivery of possession of the subject matter of the assignment, which was at a distance, did not accompany a delivery of the instrument itself But the court below found that there was no fraud in fact; there is none in law arising from the provisions of the instrument, and no proper parties to raise the question if there had been any; and immediate delivery was not indispensable to consummate a change of title. There may be a valid sale of personal property, and the title will pass to the vendee, though unaccompanied by immediate delivery. Our statute makes an assignment of chattels unaccompanied by an immediate, delivery presumptively fraudulent as against the cred
If the title to the property had been changed, it could not be legally attached for a debt due from Bates. It was no more lawful, in Illinois, to attach A.’s property for the debt of B., than it would have been in Hew York. It is supposed, however, that because the plaintiffs had notice of the attachment suits, and permitted them to go to judgment undefended, they are in some way concluded or estopped, by such judgment, from contesting in the courts of this state the title to the property. This cannot be so. The plaintiffs were not bound to interpose their claim of title in the suits in Illinois, or be barred. They were not parties, or, in any legal sense, privies to that litigation. Because the defendants had chosen to attach their property for the debt of another, and they were casually notified of the illegal act, and suffered the proceeding to go undefended, they are not consequently concluded by the judgment subsequently obtained. The defendants were wrongdoers in issuing and levying the attachment, and the subsequent acts of taking judgment and selling the property, were but further illegal steps. In pursuing their remedy against the property they could only acquire and sell, by force of their judgment, the title and interest of Bates, if he had any. If they wrongfully attached the property of strangers, though those strangers may have been casually informed of the proceeding and did not come in and defend, or demand a delivery of the property and bring suit, I am unable to perceive how a judgment against Bates, or in rem as against the property of Bates, can estop the real owners of the property from asserting their title in an action against the wrongdoers.
I think that the action was well tried, at the circuit, and that the judgment is right. I vote for an affirmance of the judgment.
(After stating the facts.) Under these circumstances the question arose, which party was entitled to prevail; in other words, which party was to be regarded, in this state and in these actions, as having the better title to the iron safes. My brother Gould is of opinion that the judgment of the circuit court was erroneous and should be reversed, for the reason that the defendants are protected by the judgment which they have obtained in the attachment suits against Bates in Illinois; that inasmuch as the attachment suits in Illinois were not defended, nor any stay of proceedings obtained therein, nor these suits brought to bar the attaching creditors’ title in Illinois, but the attaching creditors were allowed to proceed to judgment and execution, in Illinois, before these suits were instituted, the, plaintiffs’ remedy, if any they had, was lost; that the defendants have been allowed to perfect title to the property in Illinois; that full effect must be given to the judgment of that state, and damages cannot be awarded in the courts of this state against the defendants for asserting, in Illinois, their rights under a judgment of the courts of that state, valid when rendered and valid by relation, and of force from the time of the attachment levied ; that if the plaintiffs had desired to contest the rights of the attaching creditors to the property in dispute, they should have come in and defended in the attachment suit, or should have seasonably demanded the property, and if not delivered, brought suit for it prior to the entry of judgment in the attachment suit; and that the plaintiffs, by failing to act on the notice which they had of the attachment, in Illinois, and by allowing the attachment suit there to proceed to judgment without interposing there any claim of title, have put themselves in a position where they cannot contest the question; that by force of the Illinois judgment the property has been sold as the property o(f Bates, and at the time of the first demand, in New York, of the property in question, by the plaintiffs, of the defendants, the property was in the custody of the law in the state of Illinois, and the proper per
In these views I cannot concur. I cannot perceive any such conclusiveness in the Illinois judgment, as against these plaintiffs, as is claimed for it. The proceedings are between different parties. The plaintiffs in this case are in no proper sense either parties or privies to those proceedings, and therefore are not bound by them. The attachment suit and proceedings must have been between the present defendants, as plaintiffs, and John W. Bates, or some one holding under him, as defendant. The present plaintiffs were strangers to them. Nor do I see that the fact that they became cognizant of those proceedings after the levy of the attachment, and before the judgment, can in any manner affect them. They had no right—at least they would have no right in this state —to intervene in those proceedings. My learned brother supposes that in Illinois the assignees would have had a right to come in ami defend the attachment suits. I do not know how this is; but it would be necessary to go at least one step farther before those proceedings could assume the character of an estoppel; to wit, that the assignees should _ be hound to come in or be barred. In such event, it is possible that the judgment would be conclusive upon the present plaintiffs as being one to which they were in effect either parties or privies. But I know of no such law or adjudication in Illinois, and it has not been contended for by counsel" in this case.
The Massachusetts cases of Whipple v. Thayer, (16 Pick. 25,) Daniels v. Willard, (Id. 36,) and Burlock v. Taylor, (Id. 335,) all hold that an assignment made by an insolvent, in ^nother state, valid by the laws of that state, is valid in Massachusetts, so far as to protect personal property situated in Massachusetts at the time of making it, against an attachment in Massachusetts made by a citizen of the state where.
The Massachusetts decisions do not, therefore, as has been supposed, favor the views contended for on behalf of the defendants. On the contrary, if they prevailed in Illinois they would be decisive to show that if the present plaintiffs had brought this action there, they, as citizens of Hew York, showing title to property in Illinois valid by the laws of Hew York, where the assignment was made, as against the defendants, citizens also of Hew York, would have been successful against the defendants in Illinois.
The Illinois proceedings are not therefore an estoppel, and we are driven back to the two questions, first, whether in a case like the present the law of Illinois or the law of Hew York is to govern ; and if the latter, then whether the plaintiffs’ title is superior to that of the -defendants by the law of Hew York. I have debated these questions at sufficient length in the opinion delivered at the circuit, and I have seen no reason, since the more extended and elaborate argument here, materially to change the views then expressed.
Perhaps some of the grounds upon which the propriety of determining the right to the property in question by the law of Hew York, in preference to that of Illinois, rested, were not made sufficiently prominent in the opinion delivered at the circuit. They may be briefly enumerated as follows : 1. The contracting parties to the contract or purchase under which the plaintiffs claim title, were citizens of the state of
The only facts upon which the defendants rely are that the property in controversy was situated in the state of Illinois, and was seized there under attachment proceedings regularly issued in Illinois.
These being the facts and circumstances of the case, I understand the law of the state of New York takes preference. (Hoyt v. Thompson, 1 Sel. 352. Story’s Confl. of Laws, §§ 379, 380, 383, 384, 411. Holmes v. Remsen, 20 John. 258. Abraham v. Plestoro, 3 Wend. 566. Johnson v. Hunt, 23 id. 96. Martin v. Hill, 12 Barb. 631. Tyler v. Strang, 21 id. 198.)
In the case of Martin v. Hill, (12 Barb. 631,) the plaintiff was the mortgagee under a chattel mortgage of certain oxen owned by one Willard, who was indebted to him, and which oxen were left in the possession of the mortgagor under circumstances rebutting the idea of fraud or bad faith. By the law of Vermont such a mortgage, unaccompanied by possession, was void. The mortgagor and mortgagee resided in Washington county, New York. The mortgagor having taken the oxen into the adjoining town of Fairhaven, in Vermont, they were seized upon there by the defendant, who was a constable of that'town, by virtue of an execution upon
In the case of Tyler v. Strang, (21 Barb. 198,) it was held at general term, in the 7th district, that where both the assignor and assignee of a contract are citizens of this state, and the assignment is executed in this state, and the subject of the contract is personal property, upon the general principle that the lex loci contractus controls the nature, construction and validity of the contract, the validity and effect of the assignment, and the delivery and change of possession of the property necessary to sustain it, depend upon our laws, although the property itself is situated in another state.
I cite these as comparatively recent cases in our own court in support of the general doctrine, maintained, I think, by the general current of authority, in favor of the applicability of the law of Hew York to the adjustment of the legal rights of the parties to this controversy.
I think the judgment of the circuit court was correct, and should be affirmed.