Rodgers vs. Evans. mony, it appeared to the Court, that J. P. Evans, though occupying the place of first indorser, was, in fact, the principal in the debt; and then orders that Rodgers have the use and control thereof, to reimburse himself to the whole amount, as against J. P. Evans, but only as to half, as against the other real indorser, R. K. Evans. In November, 1848, this fi. fa. was levied on certain property in possession of Jno. P. Evans, to which he took illegality, on the following grounds: 1st. Because he alleged that said fi. fa. had been paid off by Rodgers, one of the defendants. 2d. Because it was being used by one indorser against another indorser; and this could be done in the case of fi. fas. founded on bankable paper alone. At July Term, 1849, the illegality was sustained, on the ground that "the facts being sustained by the records and proceedings in the cause, and said Rodgers having paid said fi. fa. he was not entitled to control the same against said J. P. Evans.” The counsel for Rodgers, then and there objecting to said illegality, for the reasons 1st. That it nowhere appeared that said fi. fa. had been paid by J. P. Evans. 2d. That by the order of the Superior Court, at November Adjourned Term, 1842, the control had been given to said Rodgers, and that said order was in force, unrevoked, and made by a Court of competent jurisdiction. 3d. Because the facts stated in said illegality, if true, are not sufficient to arrest or annulit; and said Rodgers is entitled to collect the money due on sait. fa. from said J. P. Evans. Which grounds of motion to dismiss the illegality, the Court, as said, overruled; and counsel for Rodgers excepted; and thus the case comes up. STUBBS and LESTER, for plaintiff in error, cited 4 Bac. Abr. 106, 115, 116, 117. Yelverton, 68. Chitty's Practice, 275. POWERS, (representing McDonald,) for defendant. Rodgers vs. Evans. By the Court.-LUMPKIN, J. delivering the opinion. The order of November, 1842, declaring John P. Evans the principal debtor, in the note which Berry Rodgers was compelled to pay, and giving to Rodgers, as indorser, the use and control of the judgment, to re-imburse himself as security, certainly entitled him to the execution, which he has caused to be issued thereon, and which has been arrested by the affidavit of illegality, interposed by the defendant; and being passed by a Court of competent jurisdiction, and remaining in full force, we know of no au thority in this, or any other Court, to treat it as a nullity. On the contrary, the presumption is omnia rite acta. Any other course would overturn the landmarks of property. In Rose vs. Himely, 4 Cranch, 278, it is said, if a judgment be merely irregular, the Courts of the country pronouncing the sentence, are the exclusive judges of that irregularity, and their decision binds the world. So, in Kempe's Lessees vs. Kenedy, 5 1b. 186, the Supreme Court of the United States say "The judgment it gave was erroneous, but it is a judgment, and until re versed, it cannot be disregarded." In Windham vs. Windham, 3 Ch. Rep. 12, an indirect attack was made upon the decree of a Court of Equity, ordering a sale-whereupon, the Lord Keeper remarked—“ You blow up with gunpowder the whole jurisdiction, if such a purchaser is not protected." We take this to be the true distinction, and to be well settled by the authorities. [1.] A judgment of a Court which has no jurisdiction of the cause, is entirely void. [2] But where the Court has jurisdiction both of the cause and the parties, and proceeds erroneously, the judgment, notwithstanding the error, is binding, until it is vacated or reversed. Gorrill vs. Whittier, 3 N. H. Rep. 269. The Case of the Marshalsea, 10 Co. 76. Elliot vs. Piersol, 1 Pet. S. C. Rep. 340. Smith vs. Shaw, 12 Johns. Rep. 256, 267. Lotham vs. Edgerton, 9. Cowan's R. 227. Brown vs. Crampton, 8 D. & E. 424. Hecker vs. Jarratt, 3 Bin. 410. Prescott vs. Hull, 17 Johns. R. 290. Holmes vs. Remson, 20 Johns. R. 268. Ch. R. 460, and the cases there cited. The same parties, 4 Johns. VOL. VII 19 Benton vs. Patterson and Thompson. Pick. Rep. 435. Saxton rs. Chamberlain, 6 Pick R. 422. Minor vs. Walker, 17 Mass. R. 237. See also 3 Pick. 33. 4 lb. 228. 7 Ib. 341. 8 Ib. 113. Without denying the validity of this order, we held, when the same parties were before us in August, 1846, (1 Kelly, 463,) that neither the order, nor any of the numerous Statutes which had been passed for the relief of securities, authorized the capias ad satisfaciendum which was first issued at the instance of Rodgers; and we characterized the November order itself, on that occasion, as a "most anomalous" proceeding. And it is due to the Circuit Judge, who rendered the judgment against the fi. fa. which we are now called on to review, to state, that he was probably misled by the reasoning of the Court in that case, to pronounce the opinion which he did in the present case. Still, it was not our intention to assume the power to vacate that order, however improperly and irregularly granted, [3.] Especially, we apprehend, can this not be done, in this proceeding of illegality, the object of which is, not to be delivered against an unjust judgment, by setting it aside; but conceding the rightfulness of the judgment, it resists the execution, on account of some injustice in the party who seeks to enforce it. The judgment below must, therefore, be reversed. No. 25.-AMOS BENTON, plaintiff in error, vs. JOSEPH W. PATTERSON, defendant in fi. fa. and DRURY THOMPSON, trustee, claimant and defendant in error. [1.] P devised the whole of her estate to G, as trustee and testamentary guardian, for the exclusive use of her three daughters, W, A and B, and their increase, if any, to be distributed, &c.; and in the event of the death of either of the daughters, without issue, her portion of the property to go to the survivor or survivors—if two, share and share alike-if one, to her exclusively; and should all three die, without increase or issue, G, the trus tee and testamentary guardian, is directed to deliver over the entire estate to Benton vs. Patterson and Thompson. CE; and he is vested with plenary power to do any way with the property, that, in his wisdom, may seem best: Held, that the will did not create an estate tail, especially since such estates were long since abolished by law in this State; but the same was an estate for life in the daughters, with remainder in fee to their children or grand children; and that if the daughters died without children or grand children, it was a good limitation over in fee, by way of executory decree, to C E, on failure of increase at the death of the daughters. Levy and claim, in Bibb Superior Court. Decision at July Term, 1849, by Judge FLOYD. The facts in this case were agreed upon as follows: A fi. fa. (Amos Benton vs. Jos. W. Patterson, to July Term, 1849, dated 5th February, 1849,) was levied on certain slaves or their issue, embraced by the will hereafter recited; that Patterson, after said. judgment, had intermarried with Virginia C..Wilkinson, and was in possession of said property at the levy, worth $1500; that the wife of Patterson was the daughter of Cecilia Porter, and once the widow of William L. Wilkinson; that the latter died in 1838 or 1839; that his widow remained sole until May, 1849, and then married Patterson; that after this marriage, and after the levy, Drury Thompson was appointed trustee for said Virginia and her children; that this is a copy of Cecilia Porter's will: Georgia, WILKES COUNTY : "In the name of God, amen: I, Cecilia Porter, of the County and State aforesaid, being at this time in a declining state of health, but of sound disposing mind and memory, do make, constitute and appoint this, my last will and testament, in manner and form following, to wit: "Item 1. It is my will and desire, that out of my estate all of my just debts be paid.. "Item 2. After the payment of all my just debts, it is my desire, that the remainder of the property, both real and personal, be divided into three equal portions or shares, as near as practica. ble, to be distributed by my trustee or testamentary guardian, hereinafter appointed, between my three daughters, Virginia. Wilkinson, wife of William L. Wilkinson, Frances Wellborn, wife of John G. Wellborn, and Eleanor Walton, "On account of the danger to which property of legatees, es Benton vs. Patterson and Thompson. pecially females, is frequently exposed, in consequence of the embarrassment or mismanagement of their husbands, thereby not unfrequently depriving them of support, and leaving them in a helpless and forlorn condition, I have thought it proper to prevent such sad consequences, so far as can be effected by my own precaution, or the kind and faithful agency of friends. To the end, therefore, and for this purpose, I hereby constitute and appoint Augustus H. Gibson, my trusty friend, as trustee or testamentary guardian of my before named daughters, Virginia Wilkinson, Frances Wellborn and Eleanor Walton; reposing in his special trust whatever property may fall to all or each of them after my decease. "It is farther my will and desire, that my said trustee recover, as early as possible after my death, the entire amount of my estate, and after complying with the requisition to pay my just debts, then manage the remainder as he may deem to the best advantage of my aforesaid three daughters, in order that he may have no trouble with their husbands or others, or with the Court of Ordinary. "It is farther my will, that my trustee reserve to himself fifty dollars, annually, out of the proceeds of my estate, as a compensation for his trouble and services; and here let it be distinctly explained and understood, that the property thus devised to the trustee and testamentary guardian, is exclusively intended for the use and benefit of my three daughters and their increase, if any. And whereas, I have a claim now pending in the Superior Court of this County, against the guardian of Thomas C. Porter, for a considerable amount, it is my will and desire, that if in the event of the recovery, whatever it may be, be thrown into my general estate, and be distributed as above pointed out. "Item 3. I hereby constitute and appoint Augustus H. Gibson, the trustee and testamentary guardian aforesaid, executor also of this my last will and testament, relying with full confidence on his worth, and well satisfied that he will not betray his trust hereby revoking all others by me heretofore made. "In witness whereof, I have hereunto set my hand and affixed my seal, the 14th day of January, 1830." To which will there was this codicil: |