Opinion of the Court.

decrees of divorce, obtained under such circumstances, were wholly void, for want of jurisdiction in the court that granted them; that the provision of the statute, allowing a defendant, on whom constructive service only had been made, to apply within three years to set aside the decree, did not make the decree valid when the constructive service was so defective; and that such a decree of divorce was no bar to an action by the wife to recover as the husband's widow a share of his real estate. One of the cases in which it was so held, decided at December Term, 1878, before the judgment of the Circuit Court in the case at bar, was an action by this plaintiff against this defendant and the administrator of James W. Clayton, in which the defendants set up the decree of divorce now in question. Clayton v. Clayton, 4 Colorado, 410. The other is a very recent decision, not yet officially published. Israel v. Arthur, 7 Colorado.

The fact that the statutes of the Territory, relating to chancery proceedings, having been repealed by the Code of Civil Procedure of the State of Colorado, were no longer in force at the time of the last two decisions, does not lessen the weight of those decisions of the highest court of Colorado as evidence of the law of Colorado upon the construction of its statutes affecting the status of citizens of the State, and the title in, or right of possession of, land within its limits.

That James W. Clayton was a citizen of Colorado is necessarily implied in the record, and especially in the finding of the court below that the Territorial court had jurisdiction to entertain his application for divorce; and it is the very foundation of the argument in support of this writ of error. But the service in the proceedings for divorce was exactly the same as was held insufficient to support the jurisdiction of the court to make a decree in each of the cases in the Colorado Reports, above cited. The notice and return, appearing of record in the proceedings for divorce, control the general recital in the decree that due service had been made upon the defendant therein. Galpin v. Page, 18 Wall. 350; Settlemier v. Sullivan, 97 U S.

444.

The decree of divorce being void for the insufficiency of the

Opinion of the Court.

service, and the status of Clayton and this plaintiff therefore that of husband and wife, according to the law of Colorado, as declared by its highest court, she was entitled as his widow to the share which the law of that State gives to a widow in the husband's land within the State.

We do not rest our judgment merely upon the ground that the land of which possession is demanded is in Colorado; for, if the parties had been domiciled and divorced elsewhere, the question whether they were husband and wife at the time of his death might, even as affecting her right in his land in Colorado, have been governed by the law of their domicil, although the share which a widow should take in her husband's land would of course be determined by the law of the State in which the land was. See Meister v. Moore, 96 U. S. 76; Ross v. Ross, 129 Mass. 243, 247, 248, and cases cited.

Nor do we give any weight to the finding of the court below that the wife, at the time of the proceedings for divorce, was a citizen and resident of the State of Illinois; for it is hard to see how, if she unjustifiably refused to live with her husband in Colorado, she could lawfully acquire in his lifetime a separate domicil in another State; or how, if the Territorial court had jurisdiction to render the decree of divorce, and did render it upon the ground of her unlawful absence from him, the finding of the court below could consist with the fact so adjudged in the decree of divorce.

However that may be, the wife, since the husband's death, had the right to elect her own domicil, and at the time of bringing the present action was a citizen of Illinois, and as such entitled to sue in the Circuit Court of the United States. And the ground upon which we affirm the judgment of that court is, that by the law of Colorado, as declared by the Supreme Court of the State, the decree of divorce was void, for want of the notice to her required by the local statutes.

There could hardly be a better illustration of the fitness and justice of this conclusion than is afforded by the facts of this case. To reverse the judgment of the Circuit Court would be to leave the status of the plaintiff, as widow and heir of James W. Clayton, established by the State court as to one parcel of

Statement of Facts.

land, and denied by this court as to other lands within the same State. It was said in argument, indeed, that part of the land sought to be recovered was the same in both actions; but this does not appear upon the record before us.

Judgment affirmed.

FREEDMAN'S SAVINGS & TRUST COMPANY V. EARLE.

APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

Argued February 1st, 1884.--Decided March 10th, 1884.

Judgment Lien on Equity of Redemption.

It was decided in Morsell v. First National Bank, 91 U. S. 357, that in the District of Columbia, following the laws of Maryland, judgments at law were not liens upon the interest of judgment debtors who had previously conveyed lands to a trustee in trust for the payment of a debt secured thereby. It is now decided that the creditor of such judgment debtor, by filing his bill in equity to take an account of the debt secured by the trust deed, and to have the premises sold subject thereto and the proceeds of the sale applied to the satisfaction of the judgment, may obtain a priority of lien upon the equitable interest of the judgment debtor in the property, subject to payment of the debt.

The doctrine of equitable assets considered and the English and American cases reviewed.

The appellee recovered a judgment against Robert P. Dodge in the Supreme Court of the District of Columbia on January 4th, 1878, for $7,700, with interest and costs, which was revived April 2d, 1879, and on which a fi. fa. was issued April 9th, 1879, and returned nulla bona.

On June 1st, 1877, Dodge, the judgment debtor, being then seized in fee simple of certain real estate in the city of Georgetown in this district, conveyed the same by deed duly recorded to Charles H. Cragin, Jr., in trust, to secure to Nannie B. Blackford payment of the sum of $2,000, with interest, according to certain promissory notes given therefor, and which were indorsed to Charles H. Cragin.

On April 10th, 1879, the appellee filed his bill in equity, to

Statement, of Facts.

which Dodge, Charles H. Cragin, Jr., Charles H. Cragin, and Nannie B. Blackford were made defendants, the object and prayer of which were to take an account of the debt secured by the trust deed, and, subject thereto, to have the premises sold and the proceeds of the sale applied to the satisfaction of the appellee's judgment.

The defendants having appeared and answered, a decree according to the prayer of the bill was rendered June 11th, 1879.

On December 27th, 1879, leave therefor having been obtained, the appellants filed a petition in the cause, setting forth the recovery of a judgment in their favor against the defendant Dodge in the sum of $7,386.47, with interest and costs, on February 11th, 1879, in the Supreme Court of the District of Columbia, and that on December 2d, a fi. fa. had been issued thereon and returned nulla bona December 19th, 1879; and praying that they may be made parties complainant in the cause; that the equitable interest of Dodge in the real estate described be subjected to the satisfaction of their judgment; that the same be sold, and the proceeds of sale be brought into court and distributed according to law. To this petition Dodge answered, admitting the recovery of the judgment as alleged.

On May 25th, 1880, the trustee appointed for that purpose under the decree of June 11th, 1879, reported a sale of the premises for $5,525, and the same, on June 25th, 1880, was confirmed. The cause was then referred to an auditor to state the account of the trustee to sell, whose report showed an appropriation of the proceeds of the sale, after payment of costs, in payment to that extent of the appellee's judgment. On exceptions to this report, a final decree confirming the same was made September 14th, 1880, which decree on appeal to the general term was affirmed on December 10th, 1880. From that decree this appeal was prosecuted.

Mr. Enoch Totten for appellant.

Mr. Calderon Carlisle and Mr. J. D. McPherson for appellee.

Opinion of the Court.

MR. JUSTICE MATTHEWS delivered the opinion of the court. After reciting the facts in the foregoing language he continued: As ground of reversal, it is assigned by the appellant that the proceeds of the sale of the equitable interest of Dodge, the judgment debtor, should have been distributed pro rata between the appellees and the appellants, instead of having been awarded exclusively to the appellee. It is contended on behalf of the appellants that the interest of the judgment debtor in the land, being an equity merely, is not subject to execution at law; and as it can be reached by judgment creditors only through the intervention and by the aid of a court of equity, it becomes of the nature of equitable assets, and when sold, the proceeds will be applied, according to the maxim that equality is equity, ratably among the creditors.

In the case of Morsell v. First National Bank, 91 U. S. 357, it was decided that, under the laws of Maryland in force in this District, judgments at law were not liens upon the interest of judgment debtors who had previously conveyed lands to a trustee in trust for the payment of a debt secured thereby. Mr. Justice Swayne said (p. 361): "The judgments in nowise affected the trust premises until the bill was filed. That created a lien in favor of the judgment creditors. There was none before." And it was accordingly held that in the distribution of the proceeds of sale the judgments must be postponed to debts secured by other deeds of trust made before the filing of the bill, but subsequent to the rendition of the judgments. But that decision leaves open the question arising here between judgment creditors seeking satisfaction in equity out of the debtor's equitable estate. It becomes necessary, therefore, to determine the nature of the right and the principle of distribution which arises from it.

At common law executions upon judgments could not be levied upon estates merely equitable, because courts of law did not recognize any such titles and could not deal with them. They could not be levied upon the estate of the trustee when the judgment was against the cestui que trust for the same reason; and when the judgment was against the trustee, if his legal estate should be levied on, the execution creditor could