23 U.S.

192
6 L.Ed. 300
10 Wheat. 192

MCCORMICK and Wife and others, Appellants,

v.
SULLIVANT and others, Respondents.
March 16, 1825
1

APPEAL from the Circuit Court of Ohio.

The appellants filed their bill in equity in the Court below, setting forth, that
William Crawford, deceased, the father of the female appellants, being, in his
lifetime, a colonel in the Virginia line, on continental establishment, and, as
such, entitled to the quantity of 6,666 and 2-3d acres of land, to be laid off
between the Scioto and Little Miami rivers, on the northwest side of the river
Ohio, departed this life, having first duly made and published his last will and
testament, bearing date the 16th of June, 1782, whereby he devised all his
estate, not otherwise disposed of by said will, to be equally divided between his
three children, John Crawford, and the female complainants, and their heirs for
ever. That this will was proved and recorded in Westmoreland county, in the
State of Pennsylvania, on the 10th of September in the same year. That a
warrant for the above quantity of land was afterwards issued in the name of the
said John Crawford, as heir at law of his father, under which the following
entries were made: one for 800 acres, which was surveyed and patented to
Lucas Sullivant, of which quantity 400 acres are claimed by Bernard
Thompson; another for 955 2-3d acres, which was surveyed and patented to
John Armat, but then claimed by William Winship; another for 956 acres,
patented to some person unknown, but claimed by Samuel Finley; another for
955 acres, patented to some person unknown, but believed to be claimed and
possessed by Lucas Sullivant.

The bill then proceeds to interrogate the above parties, who are made
defendants, severally, as to their knowledge of the above will, and of the title of
the female complainants, and requires of them to set forth and describe the
lands severally claimed by them, from whom they purchased, at what time, and
for what price the same were purchased, and when the purchase money was
paid. The prayer is for a conveyance, by each defendant, of two thirds of the
land claimed by them respectively, and for possession.

The answer of the heirs of Winship states, that the land to which they claim
title was purchased, for a valuable consideration, of Thomas Armat, by their
father, to whom a conveyance was made in the year 1807. That a bill was filed
by the present complainants, against the said Thomas Armat, in the District
Court of Ohio, exercising the powers and jurisdiction of a Circuit Court, for the
land now in controversy, to which the said Armat filed his answer, asserting
himself to be a bona fide purchaser of the land, for a valuable consideration,
and without notice, and that, the cause coming on to be heard, the bill was
dismissed without costs, after which decree, the purchase was made of Armat
by the defendant's father. They insist upon, and pray to be protected by the said
decree.

Finley answers, and alleges himself to be a bona fide purchaser, for a valuable
consideration, of 500 acres, part of the 956 acres mentioned in the bill, from
one Beauchamp, who claimed as assignee of Dyal, who was assignee of John
Crawford, for which he paid, and received a patent, before notice of the claim
of the plaintiffs, or of the will of William Crawford.

The heirs of Thompson filed a plea in bar, alleging, that the complainants, in
the year 1804, filed their bill in the District Court of Ohio, exercising the
powers and jurisdiction of a Circuit Court, against B. Thompson, their ancestor,
under whom they claim, setting forth the same title, and, substantially, the
same matters, as in their present bill, to which the said Thompson answered,
and the complainants replied, and upon a hearing of the cause the bill was
dismissed with costs, which decree is in full force, &c.

Sullivant filed a similar plea, and the bill was dismissed, as to him, by
agreement.

A general replication was put in to the answers of Finley and Winship's heirs,
and a special replication to the plea in bar, setting forth the record in the former
suit, and alleging, that the proceedings in that suit were coram non judice, the
record not showing that the complainants and defendant in that suit, were
citizens of different States.

Upon the hearing, the bill was dismissed, and an appeal taken to this Court.

March 5th.
10

Mr. Doddridge, for the appellants, argued, that the former proceedings in the
District Court of Ohio, pleaded in bar of the present suit, were absolutely null

and void, the record not showing that the parties to that suit were citizens of
different States and consequently, the suit was coram non judice. The Courts of
the United States are all Courts of limited jurisdiction, and the presumption is,
that a case is without their jurisdiction until the contrary appears.a The
jurisdiction must appear on the record, either as arising out of the character of
the parties, or the nature of the controversy. If it arises from the character of the
parties, as being citizens of different States, aliens, &c. the citizenship or
alienage of the respective parties must be set forth. b He also contended, that the
probate of the will of W. Crawford, in Westmoreland county, now a part of the
State of Pennsylvania, but then claimed by Virginia, as being within its
territorial limits, was sufficient to pass the title to the lands in question; but if
this were not so, that the probate and record of the will was notice to all the
world, and affected, in the view of a Court of equity, the consciences of the
grantees, and all those claiming under them. He, however, concluded by asking,
that in case the decree of the Court below should be affirmed, that it might be
without prejudice.
11

Mr. Scott, contra, insisted, that the appellants had entirely failed in establishing
any title to the lands in question, under the will of W. Crawford, they not
having exhibited a probate either in the State of Virginia, or of Ohio, which
then constituted a part of Virginia. By the law of Virginia, then in force, it was
necessary that a will of lands 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 the State, then in the County
Court of the county where the lands devised were situate; or, if the land was of
a certain value, it might be proved in the General Court.c The will of W.
Crawford, whether executed in Virginia or elsewhere, could not have the effect
to pass his real estate, situate in that State, unless made and proved in
conformity with its laws. It belongs to the sovereign power of every State, to
prescribe the rules by which real property within its territory shall be
transferred. No Courts but those of Virginia, or Ohio, could have jurisdiction of
this will, because the probate must depend upon the legality of the execution,
and that again must depend upon the lex loci. The probate of a Court of
competent jurisdiction is, by the local law, conclusive evidence of the due
execution of a will of real as well as personal estate. But the Court of
Westmoreland county could have no jurisdiction of the probate of this will,
because that Court was not established under the authority of Virginia, and
because the lands did not lie in that county, nor was the testator resident there.
A mere contested claim to the territorial jurisdiction could never lay the
foundation to establish the validity of this probate, which was, in fact, made in a
foreign country. It is laid down, by the text writers on this subject, that 'if a will
be made in a foreign country, disposing of goods in England, it must be proved

there.'d A fortiori, would it be required to be proved there, (if by the English law
probate of a will of lands were conclusive,) where it related to real property.e If
this will could not pass the legal title to the lands in controversy, neither could
the respondents be affected with constructive notice by the probate in
Pennsylvania. Had it been duly proved and recorded in the State where the
lands are situate, it is so vaguely drawn as not to designate, with certainty, the
particular lands in question. The claim of the appellants would, therefore, still
be but a latent equity, and the purchaser from the heir would be protected.f He
also insisted, that the respondents were protected by the former decree in the
District Court. Although the Courts of the United States are Courts of limited
jurisdiction, so that their judgments will be reversed on error, unless the
jurisdiction appears upon the face of the record, yet they are not inferior Courts
in a technical sense; and so long as their judgments remain unreversed, they are
conclusive. Their judgments may be reversed in an appellate Court for this
cause; but they are not mere nullities.g
March 16th.
12

Mr. Justice WASHINGTON delivered the opinion of the Court, and, after
stating the case, proceeded as follows: The question which the plea of
Thompson's heirs, and the answer of Winship's heirs, presents, is, whether the
general decree of dismission of the bill in equity, filed by the present plaintiffs
in the Federal District Court of Ohio, against the ancestor of these defendants,
under whom they respectively claim title, is a bar of the remedy which is
sought to be enforced by the present suit? The reason assigned by the
replication, why that decree cannot operate as a bar, is, that the proceedings in
that suit do not show that the parties to it, plaintiffs and defendants, were
citizens of different States, and that, consequently, the suit was coram non
judice, and the decree void.

13

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 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.
14

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.

15

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
ascertain 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.

16

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.

17

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 Crawford, an act of assembly was

passed, which permitted 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.
18

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.

19

It is an acknowledged principle of law, that the title and disposition of real

property is exclusively subject to the laws of the country where it is situated,
which can alone prescribe the mode by which a title to it can pass from one
person to another. For the establishment of this doctrine, 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 of the territory of Ohio, after the cession
by 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.

20

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 will, or of the claim of the daughters, for we are all of
opinion, that the probate of the will in Pennsylvania cannot be considered as
constructive notice to any person, of the devise of the lands in controversy. The
decree of the Court below must, therefore, be affirmed generally, with costs.

Turner v. Bank of North America, 4 Dall. 8.

Bingham v. Cabot, 3 Dall. 282. Mossman v. Higginson, 4 Dall. 12.

Abercrombie v. Dupuis, 1 Cranch's Rep. 343. Wood v. Wagnon, 2 Cranch's
Rep. 1.

Virginia Rev. Code, 1769, c. 3. p. 159.

Toller's Exec. 72.

Robertson, Wills, 50. See also 11 Vin. Abr. 58, 59. 1 Vern. 391. 1 Ld. Raym.
251. 3 Mass. Rep. 518. 16 Mass. Rep. 441. Kerr v. Moon, 9 Wheat. Rep. 565.
570.

Lewis v. Madison, 1 Munf. 303.

Kempe v. Kennedy, 5 Cranch's Rep. 173.