V.

Sullivant.

How far the

are Courts of

diction.

A

The question which the plea of Thompson's 1825. heirs, and the answer of Winship's heirs, pre- McCormick sents, is, whether the general decree of dismission of the bill in equity, filed by the present plaintiffs in the Federal District Court of Ohio, Courts of the against the ancestor of these defendants, under United States whom they respectively claim title, is a bar of limited juristhe remedy which is sought to be enforced by the judgment present suit? The reason assigned by the repli- may be reverscation, why that decree cannot operate as a bar, jurisdiction is, that the proceedings in that suit do not show the face of the that the parties to it, plaintiffs and defendants, but, until so were citizens of different States, and that, con- conclusive sequently, the suit was coram non judice, and the cata decree void.

But this reason proceeds upon an incorrect view of the character and jurisdiction of the inferior Courts of the United States. They are all of limited jurisdiction; but they are not, on that account, inferior Courts, in the technical sense of those words, whose judgments, taken alone, are to be disregarded. If the jurisdiction be not alleged in the proceedings, their judgments and decrees are erroneous, and may, upon a writ of error, or appeal, be reversed for that cause. But they are not absolute nullities. This opinion was strongly intimated, if not decided, by this Court, in the case of Kempe's lessee v. Kennedy, (5 Cranch's Rep. 185.) and was, afterwards, confirmed by the decision made in the case of Skillern's executors v. May's executors, (6 Cranch's Rep. 267.) That suit came before this Court upon a writ of error, where the decree

of

those Courts

ed for want of

appearing on

proceedings;

reversed, is

as

res adjudi

McCormick

V.

Sullivant.

1825. of the Court below was reversed, and the cause remanded for further proceedings to be had therein. After this, it was discovered by that Court, that the jurisdiction was not stated in the proceedings, and the question was made, whether that Court could dismiss the suit for that reason? This point, on which the Judges were divided, was certified to the Supreme Court, where it was decided, that the merits of the cause having been finally decided in this Court, and its mandate only requiring the execution of its decree, the Court below was bound to carry that decree into execution, notwithstanding the jurisdiction of that Court was not alleged in the pleadings. Now, it is very clear, that, if the decree had been considered as a nullity, on the ground that jurisdiction was not stated in the proceedings, this Court could not have required it to be executed by the inferior Court.

We are, therefore, of opinion, that the decree of dismission relied upon in this case, whilst it remains unreversed, is a valid bar of the present suit as to the above defendants.

The next question is presented by the answer of Finley. At the death of William Crawford, in the year 1782, he was entitled to a certain quantity of land to be laid off between the rivers Scioto and Little Miami, under a promise contained in an act of the legislature of Virginia. His interest in this land was purely an equitable one. After his death, a warrant to survey the same was granted to John Crawford, his only son and heir at law, who assigned to one Dyal a certain

tract which had been surveyed under the warrant, and the defendant claims a part of the tract so surveyed, under Beauchamp, who purchased from Dyal. He alleges, in his answer, that he made the purchase bona fide, paid the purchase money, and obtained a grant for the land, before he had notice of the will of William Crawford, or of the claim of his daughters under it.

Crawford's will, under which the female complainants claim title, was proved in some Court in the county of Westmoreland, in the State of Pennsylvania, and was there admitted to record; but it does not appear, nor is it even alleged, to have been at any time proved in the State of Virginia, or in the State of Ohio, where the lands in controversy lie.

At the time of the death of William Crawford, lands lying in Virginia were transmissible by last will and testament, in writing, the same being signed by the testator, or by some person in his presence, and by his direction, and if not wholly written by himself, being attested by two or more credible witnesses, in his presence. But to give validity and effect to such will, it was necessary that it should be duly proved, and admitted to record, in the Court of the county where the testator had his residence at the time of his decease, or, if he had no place of residence in that State, then in the Court of the county where the land devised lay, or it might be proved in the General Court, where the land was of a certain value. Subsequent to the death of William Craw ford, an act of assembly was passed, which perVOL. X.

26

1825.

M'Cormick

Y.

Sullivant.

M'Cormick

1825. mitted authenticated copies of wills, proved in any other State of the Union, or abroad, to be offered for probate in the General Court, or in the Circuit, County, or Corporation Court, where the whole of the estate lies.

V.

Sullivant.

Probate of a will of lands

does not affect

the title to real

property in an

By the law of the State of Ohio, lands lying in that State may be devised by last will and testament, or writing; but, before such will can be considered as valid in law, it must be presented to the Court of Common Pleas of the county where the land lies for probate, and be proved by at least two of the subscribing witnesses. If the will be proved, and recorded, in another State, according to the laws of that State, an authenticated copy of the will may be offered for probate in the Court of the county where the land lies, without proof by the witnesses; but it is liable to be contested by the heir at law, as the original might have been.

It is an acknowledged principle of law, that in one State, the title and disposition of real property is exreal clusively subject to the laws of the country where other. The lex it is situated, which can alone prescribe the mode governe as to by which a title to it can pass from one person of real pro- to another. For the establishment of this doc

lori ræi sitæ,

the disposition

perty.

trine, it will be sufficient to cite the cases of the United States v. Crosby, (7 Cranch's Rep. 115.) and Kerr v. Moon, (9 Wheat. Rep. 565.) It follows, therefore, that no estate could pass to the daughters of William Crawford, under his will, until the same should be duly proved according to the laws of Virginia, where the land to which he was entitled lay, at the time of his death, or

M'Cormick

V.

Sullivant.

of the territory of Ohio, after the cession by 1825. Virginia to the United States, under the ordinance of Congress of the 13th of July, 1787, or according to the law of that State, which has already been recited. The probate of the will in the State of Pennsylvania, gave it no validity whatever in respect to these lands, as to which this Court is bound to consider Crawford as having died intestate, and, consequently, that they descended to John Crawford, his only son and heir at law, according to the law of Virginia, as it stood in the year 1782. The Court below, then, could do no less than dismiss the bill as against this defendant, upon the ground, that the complainants had shown no title whatever, legal or equitable, to the land in controversy.

This Court might be induced to yield to the application of the counsel for the appellants, that, in case of an affirmance, it should be without prejudice, if we could perceive, from the record, that the complainants could, in another suit, present their case under a more favourable aspect. But this the answer of Finley will not permit us to anticipate; for, even if an authenticated copy of Crawford's will should hereafter be offered for probate, and admitted to record in the State of Ohio, still, the title to be derived under it could not be permitted to overreach the legal title of this defendant, founded, as it is, upon an equitable title, acquired bona fide, and for a valuable consideration paid, which purchase, payment, and acquisition of legal title, were made before he had either legal or constructive notice of the