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Fed. Cas. No. 17,842; Thompson v. Afflick, 2 Cranch, C. C. 46, Fed. Cas. No. 13,939. It follows that, regardless of the questions presented in regard to the constitutionality of the repeal of the statute, the pleas not having been filed in apt time, the court was justified in refusing the amendment of the threeyears statute, and it is to be presumed that his refusal was based upon that reason, and it might with equal propriety have been extended to the refusal of the plea of the general statute of six years.

It is ably urged and contended by counsel for appellants-First, that the court erred in admitting in evidence the record of the trust deed from the county records of Lake county; second, that the court erred in admitting in evidence the copy of the trust deed attached to the deposition of Kendrick; third, that the court erred in admitting in evidence the sworn copy of the articles of association of the Olathe Silver Mining Company, attached to the deposition of Kendrick.

In the affida

vit of Owers it is said that Manning and Scott were ignorant of the facts stated in regard to the pleas of the statute of limitation; that, if the said defendants had been aware of the facts, they would have each interposed the pleas. Nothing is said in regard to the interposition of the plea by the debtor, the mining company. In his answer he prays to be permitted to defend as a stockholder on behalf of the company, and make such answer as the company might or could make in the premises. It clearly appears that, after verifying and filing the answer of the company as its attorney, Owers abandoned the claim to the position, and, so far as the company was concerned, it was without defense, and in default. For the purposes of this opinion, Owers, Manning, and Scott must be regarded as interveners as between the bondholders seeking foreclosure and the mortgagor, tacitly confessing the justice of the claims. This remark becomes necessary in connection with the discussion of the questions raised, suggesting, as they do, the further question to what extent the defendants could go in a collateral attack upon the bona fides and regularity of corporate proceedings when the debtor (mortgagor) admits the justice and regularity of the claims, where the rights attempted to be asserted by the defendants originated long subsequent to the mortgage, and the record of the same, which, according to the affidavit of Owers, occurred while he was the attorney of the company, and supposed to be looking after its interests. It also appears from his sworn statements that at the time of the purchase by him of the Britton and Gray judgment, and the sale to others of undivided interests in the property, he remained the attorney while asserting an adverse title, and afterwards brought the suit for services during the time he was obtaining, asserting, and selling the adverse title, and obtained a judgment of $2,000, which he

is now attempting to assert as a lien against th the property. A serious question is raised by his sworn statements of the facts in regard to his relations with the company. Did not his course towards his client during the time of his employment preclude him from asserting any rights or title in the premises? The suit was in equity, in which it is a fundamental maxim that he who seeks its aid must "show clean hands," at least show his own conduct fair and honest, such as entitles him to equitable consideration. The claim of title sought to be enforced by him was shown by himself to have been so antagonistic to his employer, and so in fraud of its rights, as to warrant a court in rejecting and disregarding it.

The question suggested in regard to the admission of evidence will be briefly discussed. The mining company was a foreign corporation organized under the laws of Great Britain. Its organization, its validity, and the validity of its proceedings as a corporate body were under the statutes of that government, and controlled by them; hence the laws of this state, of the United States, were inoperative in regard to the home administration of its corporate affairs. The land sought to be foreclosed was in this state. The proceeding for foreclosure was governed by the lex loci.

It is contended that the mortgage, not having been acknowledged as required by our statutes, could not be admitted in evidence, and that the court erred in admitting it. In Holladay v. Dailey, 1 Colo. 460, it was said, in regard to a deed of conveyance: "Whether it was acknowledged in conformity with the statute or not is a matter of indifference, for the acknowledgment is but a means of proving the execution and authenticating the record when the instrument shall be thereafter recorded; and, the statute which requires it being in the affirmative, and without any negative implication to exclude the common law, the conveyance will be valid, as between the parties thereto and those having notice thereof, even though not acknowledged at all." The case was taken by writ of error to the supreme court of the United States, and there affirmed. 19 Wall. 606. We are not aware that the doctrine there asserted, that the acknowledgment was but a means of proving the execution,-not the only means, and, as between the parties and those having notice, would be valid without any acknowledgment whatever, has ever been questioned. The acknowledgment entitles it, under our statute, to record. The record is solely for the purpose of notice. The validity is in no way dependent upon either. The requirements are for the purposes of evidence only, and for the protection of creditors and subsequent incumbrancers, bona fide, without notice. The question of notice is one of fact, and may, when necessary by reason of defective acknowledgment, be established by other competent evidence, aside from the record. Owers,

who obtained the entire adverse title, as the attorney of the company, was chargeable with notice at the inception of his supposed title.

At the time of the trial the company

Carefully authenticated and verified copies were produced of every important paper necessary as evidence, including the charter of the company, its official acts, resolutions, etc.,

ful and elaborate proof of the personnel of the governing body, the execution of the paper under the corporate seal, and the reason added why the original paper was not produced.

had been compelled to go into voluntary liqui- | authorizing the mortgage, together with caredation, and be wound up. The high court of chancery had the jurisdiction, and was in possession of all the papers and records pertaining to the corporation; and although, by permission of court, access was had for the purpose of securing verified copies, it was shown by the testimony of two witnesses, and unquestioned, that the original papers could not be withdrawn from the custody of the court. Section 217, Gen. St., is as follows: "Deeds, bonds and agreements in writing, for the conveying or encumbering of real estate, or any interest therein, shall be deemed from the time of being filed for record, notice to subsequent purchasers or encumbrancers though not acknowledged or proven according to law, but neither the same, nor the record thereof, shall be read as evidence, unless subsequently acknowledged or proved according to law, or unless their execution be otherwise proved in the manner required by the rules of evidence applicable to such writings so as to supply the defects of such acknowledgment or proof; this section shall apply as well to all such deeds, bonds and other writings heretofore recorded, as to those hereafter to be recorded." Though not acknowledged or proven according to law, they are from the date of record notice to subsequent purchasers or incumbrancers, but neither they nor the record can be used as evidence, "unless their execution be otherwise proved in the manner required by the rules of evidence applicable to such writings." The section clearly allows and recognizes proof as at common law of their execution. In Greenl. Ev. § 557, in speaking of such documents as deeds, bills, and notes, it is said: "These must be produced, and the execution of them generally proved, or their absence duly accounted for, and their loss supplied by secondary evidence." In Burton v. Driggs, 20 Wall. 134, it is said: "It is an axiom in the law of evidence that the contents of any written instrument lost or destroyed may be proven by competent evidence. * * It is well settled that, if books or papers necessary as evidence in one state be in the possession of a person living in another state, secondary evidence, without further showing, may be given to prove the contents of such papers, and notice to produce them is unnecessary;" and such has invariably been held to be the law in different states. See Burnham v. Wood, 8 N. H. 334; Beattie v. Hilliard, 55 N. H. 428; Harper v. Cook, 1 Car. & P. 139; Shepard v. Giddings, 22 Conn. 282; Bailey v. Johnson, 9 Cow. 115; Mauri v. Heffernan, 13 Johns. 58; Eaton v. Campbell, 7 Pick. 10.

It is technically urged that it was not shown that the mortgage was executed by the president or chairman of the board of trustees or directors. Courts are not to presume that there were such officers. Where it is shown that the paper was executed by the board of control, and the seal of the corporation affixed by the custodian by order of the board of control, it is sufficient. Section 119 of the charter provides that the seal shall be evidenced by the signature thereto of one of the directors and the secretary. In this case it was evidenced by three directors and the secretary. In Lovett v. Association, 6 Paige, 60, the learned chancellor said: "The seal of a corporation aggregate affixed to the deed is of itself prima facie evidence that it was so affixed by the authority of the corporation; especially if it is proved to have been put to the deed by an officer who was intrusted by the corporation with the custody of such seal. And it lies with the party objecting to the due execution of the deed to show that the corporate seal was affixed to it surreptitiously or improperly, and that all the preliminary steps to authorize the officer having the legal custody of the seal to affix it to the deed had not been complied with." See Kyd, Corp. 268; Ang. & A. Corp. 115; Clarke v. Coke Co., 4 Barn. & Adol. 315; Whart. Ev.. 694; Doe v. Chambers, 4 Adol. & E. 410; Burrill v. Bank, 2 Metc. (Mass.) 166; St. John's Church v. Steinmetz, 18 Pa. St. 273. This fundamental principle of the law of evidence appears to have been overlooked; also the other fact that the corporation was not the plaintiff, but a codefendant; hence the greater necessity of establishing by competent proof any fact of want of authority, irregularity, or fraud in the transaction to vitiate the deed of trust, instead of reversing and throwing upon the plaintiffs the burden of proof of every fact in advance, and requiring it to anticipate every objection the ingenuity of counsel could suggest. It follows that we do not think any serious error warranting a reversal occurred upon the trial. The judgment and decree were fully warranted by the facts and evidence. The claim of title as made by the defendants was not such as to appeal to the conscience of a chancellor, or such as to demand great consideration. The judgment of the district court will be affirmed. Affirmed.

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GARNISHMENT-JURISDICTION OF DEFENDANT-EXEMPTIONS--CONFLICT OF LAWS.

1. As exemption laws have no extraterritorial force, a garnishee will not be discharged merely because the wages sought to be reached by garnishment were earned in another state, under whose laws they are exempt.

2. Jurisdiction of a nonresident defendant cannot be obtained in an action on notes made and payable at his residence by garnishment of his wages due from a foreign railroad company, whose road extends into the state of the forum.

Appeal from district court, Arapahoe county.

Action by James A. Maggard against C. C. Shawver (the Atchison, Topeka & Santa Fé Railroad Company, garnishee). From a judgment for plaintiff, against defendant and the garnishee, the garnishee appeals. Reversed.

Maggard (appellee), on May 10, 1893, sued out an attachment against one C. C. Shawver. On May 22d, the sheriff made return of the writ of attachment, with the indorsement that he had had the writ since the 10th day of May, and had failed to find the defendant in his county. On May 11th the complaint was filed, alleging that the defendant was indebted upon two promissory notes, made at Wellington, Kan.,-the first for the sum of $61, dated May 12, 1888, with interest at 12 per cent. per annum, payable to Maggard & Hunt, and by them indorsed to the plaintiff; the second, of the same date, $9.50, with interest at the same rate, payable to the plaintiff. Summons was issued May 18, 1893. On the 22d, it was returned "Defendant not found in the county." On the 9th of June an affidavit was made and filed by the plaintiff of the nonresidence of the defendant. On July 7th an order for publication of summons was made; proof of publication filed August 7, 1893. On June 14th a garnishee summons against appellant was issued; returned "Served" on June 24th. Appellant answered: "There is due defendant $69.10 for April wages, $78.61 for May wages, and $17.35 for wages for June, which is all there was due him at the time of the service hereof; that affiant is informed and believes that the defendant is a nonresident of the state of Colorado, a married man, the head of a family, and residing with the same; and that his wages are exempt to him under the laws of the state of Kansas." June 24th the following motion was filed: "Comes now the Atchison, Topeka and Santa Fé Railroad Company, and moves the court to dismiss and discharge said company as garnishee herein, for the reasons: First, that the Atchison, Topeka and Santa Fé Railroad Company is a corporation of the state of Kansas; second, that the defendant is a res

ident of the state of Kansas; third, that the wages due defendant were earned outside of the state of Colorado, and without the jurisdiction of this court; fourth, that his wages are exempt to him by virtue of the laws of the state of Kansas, where the same were earned,"-which was denied by the court on September 28th. The following stipulation of facts was filed on the same date: "That the said the Atchison, Topeka and Santa Fé Railroad Company is a corporation organized and existing under and by virtue of the laws of the state of Kansas, and, at the time of the service of garnishee summons herein, said corporation owned and operated a railroad within the county of Arapahoe and state of Colorado. Second. That the said C. C. Shawver was and is a resident of the state of Kansas; that the said James A. Maggard was and is a resident of the city of Denver and state of Colorado. Third. That the wages shown to be due the said defendant, Shawver, were earned outside of the state of Colorado. Fourth. That the wages so earned by the said Shawver were exempt from execution, under the laws of the state or territory wherein the same were earned." October 23, 1893, a default was taken against the defendant, Shawver; an order of court was entered sustaining the attachment; and judgment entered for $130.35, and judgment against appellant (garnishee) for same

amount.

Rogers, Cuthbert & Ellis, and Chas. E. Gast, for appellant. Bicksler, McLean & Pershing, for appellee.

REED, J. (after stating the facts). The appeal was taken by the garnishee. The questions presented are purely questions of law on the facts which are stipulated and shown by the record. The questions to be determined are quite troublesome by reason of conflicting decisions in different states upon the same and similar statutes. We are greatly aided in the investigation by the great ability and industry of the respective counsel in printed briefs and arguments. The case is presented with a thoroughness deserving great commendation.

The main question is, did the court obtain jurisdiction of the defendant through the proceeding by attachment and garnishment of the appellant? At the time of the making of the notes, both plaintiff and defendant resided in Kansas. The plaintiff removed to this state, and could proceed in the courts, provided jurisdiction of the defendant could be had. The defendant continued to reside in Kansas. No personal service could be had upon him. Only constructive service could be had, and that only by reason of the proceeding in rem. The subject of attachment was a chose in action,-an admitted indebtedness for labor performed by the defendant for appellant in Kansas, under a contract made in that state, to be performed and payment

Appellant, a corpo

to be made in that state. ration, created by that state, with its headquarters in that state, operated a line of railroad or the continuation of a line in this state. The laws of a state have no extraterritorial force. There are two well-established and axiomatic principles of public law. The first is that every state possesses exclusive jurisdiction and sovereignty over persons and property within its territory. The second is an outgrowth, and follows from the first, viz. that no state can exercise direct jurisdiction and authority over persons or property outside its territorial limits. Story, Confl. Laws, c. 2, § 539; Wheat. Int. Law, pt. 2, c. 2. The statements of these well-settled principles of public law are deemed necessary in disposing of one branch of the case, urged with ability at some length by counsel for appellant, based upon the statement, contained in appellant's answer in the garnishee proceedings: "That affiant is informed and believes that the defendant is a nonresident of the state of Colorado, a married man, the head of a family, and residing with the same; and that his wages are exempt to him under the laws of the state of Kansas." It may be as well to dispose of this contention before taking up the discussion of the principal question. In view of the principles of law above cited, it becomes apparent that this is ancillary and dependent upon the finding in the main question. If the right attached was property in this state, and subject to attachment under state law, then the lex fori and not the lex loci contractus controls, and this practically disposes of the matter. If it was not property in this state, the entire proceeding was void for want of jurisdiction. If it was property within the state through which the court could enforce jurisdiction, then the laws of exemption of the state of Kansas, having no extraterritorial application, could not be pleaded effectually in this state. I am aware that there are some authorities that seem to support the contention of counsel, notably Drake v. Railway Co., 69 Mich. 168, 37 N. W. 70, where it is said in the opinion: "Yet, when one entitled to such exemption keeps his person and his property within the locality of the contract, and does not enter, and is not brought, except by substituted service, within this state, he cannot, in reason and justice, be deprived of the exemption secured to him by the law of his domicile. It must be held, I think, not only as a matter of simple justice, but as sound law, which means justice, that where the creditor, debtor, and garnishee, at the time of the creation of both debts, are all residents and doing business in Indiana, and both debts are created, and intended to be payable, in that state, the exemption of wages is such an incident and condition of the debt from the employer that it will follow the debt, if the debt follows the person of the garnishee into Michigan, and attach itself to every process of collection in this state, unless jurisdiction is ob

tained over the person of the principal debtor; that it becomes a vested right in rem, which follows the debt into any jurisdiction where the debt may be considered as going." In that case the creditor and debtor both resided in Indiana. The claim was sold and assigned to plaintiff in Michigan. The circuit court found that the claim was assigned for the purpose of instituting garnishee proceedings in the state of Michigan, and evading the exemption laws of the state of Indiana. I cannot understand how the motives or intention of the parties could affect the legal question, for the court did not place its decision upon the ground that no legal title passed to the assignee, but upon the broad ground that the fund attached carried with it into the state of Michigan the protection of the exemption laws of the state of Indiana. It is a labored opinion, but so at variance with the general principles of law that we cannot follow it. If the criticism can be pardoned, it seems to be contradictory to itself. It says: "When one entitled to such exemption keeps his person and his property within the locality of his contract," etc. If it was property of the debtor in the state of Michigan, it was not kept within the state of Indiana when the respective contracts were made. Had it been kept, the questions discussed could not have arisen. Wright v. Railroad Co., 19 Neb. 175, 27 N. W. 90, is cited and relied upon in the Michigan case, and also by counsel in this, but appears to have been entirely misunderstood. The case was in all particulars identical with this. Plaintiff and defendant were residents of Iowa. The railroad company, garnisheed, operated its road in both Iowa and Nebraska. The contract for labor was made, the service performed, and payment to be made in the former state. Suit by attachment and garnishment was instituted in Nebraska. The gar

nishee set up in the answer the same defense as in this, but the statute of exemption applied was that of Nebraska, and not that of Iowa. By section 531a of the Code of Nebraska, "the wages of laborers, mechanics and clerks who are heads of families ・・・ shall be exempt from the operation of attachment execution and garnishee process"; and, although the head of the family and residing in Iowa, the fund was held exempt in Nebraska by local law. An examination of the statutes in the different states exempting wages shows that in each case it depends upon the person being the head of the family and residing with them. The statutes can only be construed as applying to those who are residents of the state where the statute is enacted. Aside from the fundamental principle that laws can have no extraterritorial force, each state is supposed to protect only its own, and it is not to be presumed that the state of Nebraska intended to protect the families of parties living in Iowa. utes of this character are passed-First, in the interest of humanity, to prevent the fund

Stat

upon which the family is dependent for support being withdrawn, and they left destitute; second, in the interest of the state, to protect the families of laboring men, so they would not become a public charge. No reasonable construction of the intention of the legislature could extend the act to the protection of those domiciled in other states. Such construction would lead to great confusion. A man might have property in three or four different states, and he could invoke the aid of the exemption laws of each, for the benefit of a family residing in one, when all exemption laws evidently contemplated but one exemption. each state the condition precedent is that the man is the head of a family residing in the state where the aid of the law is invoked; and under every statute I have examined the fact must not only be established, but the claim of exemption made. Like many other statutes, the right to exemption may be waived for want of a claim.

In

The only logical conclusion I can reach is that the Michigan court erred in importing the statute of Indiana, and applying it, and the state of Nebraska, in applying its own law, for the protection of a family residing in another state. Both decisions were evidently dictated by humanity and justice, but, in my opinion, are put upon no sound legal basis, and are efforts at legislation, instead of the application of laws. This is particularly apparent from an unguarded expression in the Nebraska opinion, when it is said: "While the exemption laws of a state have no extraterritorial effect, yet they should be so construed as to give them effect." Comment upon such a sentence seems unnecessary. The answer in both cases may, in our view of the case, be very brief. The laws for attachment and garnishment for the purpose of collecting the debt were those of the state of Michigan; the law of exemption, that of the state of Indiana, and could no more be applied to prevent the collection and abrogate the laws of Michigan than the law of attachment and collection laws of Michigan could be enforced in Indiana by reason of the debt having been contracted in Michigan. If the law of exemption of one state inheres in and attaches to a claim in another, the collection laws of the state where the contract was made must, of necessity, attach and go with it into any state where collection is attempted. Any attempt to make state laws extraterritorial must be futile, and only result in complication and confusion. Many authorities are cited, in both the Michigan and Nebraska cases supposed to support the finding. Most of them are wanting in analogy, and others are only of value inferentially. If the principle contended for in those cases is to prevail, it would seem to be in direct conflict with the fundamental public law that the operation of statutes is confined to the state; and it would also be destructive of the comity existing between different states.

2. It is elementary that, under the circumstances, the power of the court to assume jurisdiction and inquire into the obligations of a nonresident was dependent upon the seizure of property of the defendant within the jurisdiction of the court. Without such seizure no service could be had by publication. No judgment could have been entered against the defendant, and none against the garnishee. The fundamental question in this case is, was the money due for services performed in Kansas, and payable there, property of defendant in this state? It is stipulated that appellant is a corporation and resident of the state of Kansas, but is shown to have been operating a part of its line in this state. It is also stipulated that the defendant is a resident of the state of Kansas, and that the wages sought to be reached were earned and payable there. If such fund could be reached by service of garnishment papers in this state, it must be obvious that the plaintiff could have attached by garnishee proceedings at any station on its line where it had an agent, upon the theory that the claim was ambulatory, and had a situs in the office of each agent, regardless of location. This cannot be the law. As between the plaintiff and defendant, the debt, beyond question, followed the domicile of the plaintiff. That was its situs. But the indebtedness of the garnishee to the defendant did not follow the plaintiff. Its situs was by contract fixed where the services were performed and the payment to be made; and if such claim or indebtedness is property, in contemplation of the statute, the situs of such property was in Kansas, and not in Colorado. Care must be taken not to confound the indebtedness due from the defendant to the plaintiff with that due the defendant from the garnishee. They have no relation to each other whatever. Each has its proper situs, regulated by law or contract, or both. The courts of the state could not abrogate the contract of the garnishee with the defendant, and compel a different performance. There was no service upon the defendant; no appearance by him. The proceeding was only in rem, and the only jurisdiction obtained was by the attachment of property. If no property was found and attached, there was no jurisdiction. As before stated, whether such a claim was property has been differently answered by different courts. That it is not for the purpose of conferring jurisdiction is plainly inferable from the decisions of the federal courts. See Mason v. Beebee, 44 Fed. 556; Tappan v. Bank, 19 Wall. 490; McCarty v. The City of New Bedford, 4 Fed. 818; Pennoyer v. Neff, 95 U. S. 714; Cooper v. Reynolds, 10 Wall. 308. In Pennoyer v. Neff, supra, it is said, at page 723: "Every state owes protection to its own citizens; and, when nonresidents deal with them, it is a legitimate and just exercise of authority to hold and appropriate any property owned by such nonresidents

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