Armstrong v. Lear. The Attorney-General and Lear, for the respondent, contended, that the question whether the paper of 1806 was to be considered as a revocation pro tanto of the will of 1798, depended upon its being authenticated as a testamentary disposition, in the manner prescribed by the laws of this country. They referred to the well-known rule, which had been frequently recognised in this court, that foreign laws must be proved as facts, or they could not be taken notice of judicially by our courts. 2 Cranch 237. That consequently, it was a case for the application of the ordinary principle, that a suit could not be maintained in a court of equity for a legacy, without first showing a probate, in the proper court, of the will under which it was claimed. The admission in the defendant's answer did not dispense with this preliminary, because it was merely intended to admit that "the instrument was executed and acknowledged as it purports to be," submitting its effect and operation to the judgment of the court. Nor did the treaty and the act of congress, which had been referred to, dispense with the necessity of probate of the will in the appropriate local tribunal, where all parties interested would have a right to contest its validity. The utmost effect that could be attributed by the conjoint operation of the law of France, the treaty, and the statute of congress, to the execution and acknowledgment of such an act, as a will or a codicil, before the consuls of the United States, in France, would be, to make it conclusive evidence, on which a court of probates in the United States might proceed; but it could not be considered as dispensing with all the local laws of the states on the probate of wills, and inverting the whole order of proceeding in cases of this sort, by which the paper must be ascertained, by the court having peculiar jurisdiction of testamentary causes, to be a will, before a court of equity can be called on to give a construction to it, and to decree a legacy under it. Nor could it be considered as a *donation mortis causâ, and therefore, not *175] requiring probate; since, to constitute such a donation, the gift must be made in extremis, and must be accompanied with an actual delivery. 2 Bl. Com. 514; Just. Inst. lib. 2, tit. 7, § 1; Dig. 1. 29, t. 6; Prec. in Ch. 269; 1 P. Wms. 406, 441; 3 Ibid. 357; 2 Ves. 431. February 21st, 1827. STORY, Justice, delivered the opinion of the court. -The bill in this case is brought against the administrator, with the will annexed, of General Kosciuszko, for the purpose of establishing a right of the plaintiff to receive payment out of the assets of the testator, of a certain bequest to him, contained in a supposed testamentary writing, executed by the testator, at Paris, in France, in June 1806. This supposed testamentary writing is set forth in the bill, and averred to be in the nature and of the effect of a last will or writing testamentary; but it does not appear to have been admitted to probate, either in France, or in the proper orphans' court of this district. The answer admits the existence and authenticity of the instrument, and submits to the court its import and legal effect, and whether it is to be deemed a last will and testament; and it also admits assets in the hands of the administrator sufficient to discharge the bequest. The cause was heard in the court below, upon the bill and answer, and from the decree dismissing the bill, the present appeal has been brought to this court. The cause has been argued here upon several points, involving a good deal of learning, and some doctrines of international law. We do not enter into an Rankin v. Scott. examination of them, because our judgment proceeds upon a single point, and will, in no event, prejudice the merits of the plaintiff's clair. [*176 By the common law, the exclusive right to entertain jurisdiction over wills of personal estate, belongs to the ecclesiastical courts; and before any testamentary paper of personalty can be addmitted in evidence, it must receive probate in those courts. Lord KENYON, in the King v. Inhabitants of Netherseal, 4 T. R. 258, said, "we cannot receive any other evidence of there being a will in this case, than such as would be sufficient, in all other cases, where titles *are derived under a will; and nothing but the probate or letters of administration, with the will annexed, are legal evidence of the will, in all questions respecting personalty." This principle of the common law is supposed to be in force in Maryland, from which this part of the District of Columbia derives its jurisprudence; and the probate of wills of personalty to belong exclusively to the proper orphans' court here, exercising ecclesiastical jurisdiction. If this be so, and nothing has been shown which leads us to a different conclusion, then it is indispensable to the plaintiff's title, to procure, in the first instance, a regular probate of this testamentary paper, in the orphans' court of this district, and to set forth that fact in his bill. The treaty stipulations, the act of congress, and the principles of the law of France, which have been cited at the argument, attributing to them the full force which that argument supposes to establish the validity of the instrument, do not change the forum which is entitled, by the local jurisprudence, to pronounce upon it as a testamentary paper, and to grant a probate. It is one thing, to possess proofs, which may be sufficient to establish that a testamentary instrument had been executed in a foreign country, under circumstances which ought to give it legal effect here; and quite a different thing, to ascertain what is the proper tribunal here, by which those proofs may be examined, for the purpose of pronounc ing a judicial sentence thereon. For this reason, the decree of the court below is to be affirmed, but without prejudice, so that the instrument may be submitted to the decision of the proper probate court. Decree affirmed. *RANKIN and SCHATZELL, Plaintiffs in error, v. SCOTT, Defend- [*177 ant in error. Lien of judgment. The lien of a judgment on the lands of the debtor, created by statute, and limited to a certain period of time, is unaffected by the circumstance of the plaintiff not proceeding upon it (during that period), until a subsequent lien has been obtained, and carried into execution. Universal principle, that a prior lien is entitled to prior satisfaction out of the thing it binds, unless the lien be intrinsically defective, or is displaced by some act of the party holding it, which shall postpone him at law or in equity. Mere delay in proceeding to execution is not such an act. Distinction created by statute, as to executions against personal chattels, and reasons on which it is founded. ERROR to the District Court of Missouri. This was an action of eject 1 See Armstrong v. Lear, 8 Pet. 52. Rankin v. Scott. ment, brought in the court below, by the defendant in error, Scott, to recover the possession of a house and lot, in the town of St. Louis. At the trial, a special verdict was found, stating, that in the year 1816, John Little married Marie Antoinette Labadie, who was then seised in fee of the house and lot in question. She died without issue, leaving the husband seised in fee of a moiety of the premises. He soon afterwards died, without issue, and intestate. In April 1821, judgment was rendered in the circuit court of the county where the premises lay, against the administrator of Little, in favor of Schatzell and another, for $2747.19. In March following, another judgment was rendered against the same, in favor of B. Pratte, for $1241. Execution was immediately issued upon the latter judgment, and the premises in question sold under it to Scott, the plaintiff in ejectment; and soon afterwards, another execution issued upon the first judgment, and the same premises were sold to Schatzell, one of the defendants below, and conveyed to him by the sheriff's deed. Rankin, who was tenant to Little, in his lifetime, remained in possession of the premises, after his death, *178] *and attorned to Schatzell. The question raised upon these facts was, whether the sale by the sheriff, under the second judgment and first execution, divested the lien of the first judgment? The court below determined it in the affirmative; and the cause was brought, by writ of error, before this court. January 15th, 1827. Benton, for the plaintiffs in error, relied upon the express provisions of the statute of Missouri, to show that the local law made the first judgment a lien upon the land, for the term of five years, within which time it was enforced, and Shatzell purchased under it. Geyer's Dig. Laws Missouri, 264, 267. For the general effect of a judg ment lien, he cited 1 Johns. Cas. 224; 13 Johns. 463, 533; 1 Dall. 481, 486; 4 Ibid. 450. Talbot, contrà, cited 1 T. R. 729; 1 Ld. Raym. 251; 1 Burr. 20; 8 Co. 171; Cro. Eliz. 181; 1 Salk. 320. January 23d. MARSHALL, Ch. J., delivered the opinion of the court, and after stating the case, proceeded as follows:-The act of the then territorial government of Missouri, on which this question depends, is in these words: "Judgments obtained in the general court shall be a lien on the lands and tenements of the person or persons against whom the same has been entered, situate in any part of this territory; and judgments obtained in a court of common pleas of any district, shall be a lien on the lands and tenements of the person against whom the same has been entered, situate in such district." The act contains a proviso, "that no judgment hereafter entered in any court of record within this territory, shall continue a lien on the lands and tenements against whom the same has been entered, during a longer term than five years from the first return-day of the term of which such judgment may be entered, unless the same shall have been revived by scire *179] facias," &c. *Since the territory of Missouri was erected into a state, the general court has received the appellation of the superior court, and the court of common pleas for the district has been denominated the circuit court for the county. The execution on the first judgment was issued within a short time after Rankin v. Scott. it was rendered, and while the lien it created was in full force, unless it was removed by the execution and sale under the second judgment. There is no expression in the law of Missouri which can suggest a doubt on this subject. By that law, judgments are to be a lien on all the lands of the debtor. This lien commences with the judgment, and continues for five years. The principle is believed to be universal, that a prior lien gives a prior claim, which is entitled to prior satisfaction, out of the subject it binds, unless the lien be intrinsically defective, or be displaced by some act of the party holding it, which shall postpone him, in a court of law or equity, to a subsequent claimant. The single circumstance of not proceeding on it, until a subsequent lien has been obtained and carried into execution, has never been considered as such an act. Take the common case of mortgages. It has never been supposed, that a subsequent mortgage could, by obtaining and executing a decree for the sale of the mortgaged property, obtain precedence over a prior mortgage, in which all the requisites of the law had been observed. If such a decree should be made, without preserving the rights of the prior mortgagee, the property would remain subject to those rights in the hands of the purchaser. So, in cases of judgment, where an elegit may be sued out against the lands of the debtor. The implied lien created by the first judgment, retains the preference over the lien created by a second judgment, so long as an elegit can issue on the first. A statutory lien is as binding as a mortgage, and has the same capacity to hold the land, so long as the statute preserves it in force. The cases cited of executions against personal property, do not, we think, apply. In those cases, the lien is not created by the judgment, or by any matter of record. The purchaser of the goods cannot suppose that the officer has committed any impropriety in the performance of his duty, *and this circumstance has induced parliament to secure him. It is [*180 stated by AsшHURST, Justice, in 1 T. R. 731, that this was the sole object of that part of the statute of frauds which relates to this subject. In the case at bar, the judgment is notice to the purchaser of the prior lien, and there is no act of the legislature to protect the purchaser from that lien. We think, then, that the deed made by the sheriff to the purchaser, under the first judgment, conveyed the legal title to the premises; and that the judgment on the special verdict ought to have been in favor of the plaintiff. 12 WHEAT.-8 Judgment reversed. 113 UNITED STATES V. TILLOTSON and another. Error.-Binding charge. Where the burden of proof of certain specific defences set up by the defendant is on him, and the evidence presents contested facts, an absolute direction from the court, that the matters produced and read in evidence on the part of the defendant were sufficient in law to maintain the issue on his part, and that the jury ought to render their verdict in favor of the defendant, is erroneous; and a judgment rendered upon a verdict purporting to have been given under such a charge, will be reversed, although the record was made up as upon bill of exceptions taken at a trial before the jury upon the matters in issue-no such trial ever having taken place, and the case having assumed that shape, by the agreement of the parties, in order to take the opinion of the court upon certain questions of law. ERROR to the Circuit Court for the Southern District of New York. February 24th, 1827. This cause was argued by the Attorney-General and Coxe, for the plaintiffs; and by Webster and Wheaton, for the defendants. March 2d. STORY, Justice, delivered the opinion of the court.—This cause comes before us from the circuit court for the southern district of *181] New York, as upon a bill of exceptions *taken to the opinion of the court, upon a trial before a jury upon the matters in issue. In reality, no such trial was had; but the case assumed this shape, by the agreement of the parties, in order to have the opinion of the court upon certain questions of law.' We must, however, consider the case exclusively upon principles applicable to it as a bill of exceptions taken at a real trial.(a) Upon the argument in this court, various important questions have been elaborately discussed by counsel, upon which we forbear to express any opinion, as our judgment of reversal proceeds upon a ground, which renders any decision on them unnecessary. The bill of exceptions admits the due execution of the bond in controversy, and the breaches stated in the declaration are answered by special notices of defence set up as bars to the suit. The burden of proof of these defences, in point of fact, rested on the defendants. The court is supposed to have charged the jury, that the matters produced and read in evidence on the part of the defendants were sufficient in law to maintain the issue on their part, and that the jury ought to render their verdict in favor of the defendants. This charge can be maintained, in point of law, only upon the supposition, that the evidence presented no contested facts; for otherwise, it would withdraw from the jury their proper functions, to determine the the evidence in the cause. facts upon Upon examining the record, we think, that there is contradictory evidence, or rather evidence conducing to opposite results, in respect to a point material to many of the specifications of defence, and particularly as to the matters in the third, fifth, sixth, seventh, eighth and ninth. It is this whether the contract of the 7th of June 1820, between Col. Gadsden, (a) The cause was argued and determined in the court below, upon a case agreed upon between the parties, containing a state of facts; but as the state of facts was not annexed to the transcript of the record, this court could not take notice of it. 1 See 1 Paine 305, 311. |