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has the power to act in rem between the parties in the absence of statute.1. We shall also consider the possibility of action in rem as to all the world by equity.

GARFEIN v. McINNIS.

COURT OF APPEALS, NEW YORK. 1928.

248 New York 261.

APPEAL, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 15, 1928, which affirmed an order of Special Term denying a motion by defendant-appellant for an order setting aside the service on him of the summons and complaint.

The following questions were certified:

"1. Has any jurisdiction been obtained by the Supreme Court of New York State in an action brought by the vendee in the Supreme Court, Westchester county, for the specific performance of a contract to convey real property situated in said county of Westchester, where the vendor is a resident of Connecticut, and has not been personally served within the State of New York, nor appeared in the action, but was personally served with a summons and verified complaint in the State of Connecticut?

"2. Under the circumstances as set forth in the above question, if the court decrees specific performance for the vendee, can the court direct the sheriff to convey the property, under section 979 of the Civil Practice Act?"

LEHMAN, J. In an action for the specific performance of an alleged contract to convey real estate in the State of New York, service of the summons and complaint has been made in the State of Connecticut, upon a resident of that State. The motion of the defendant to set aside such service has been denied.

In an action "where the complaint demands judgment that the defendant be excluded from a vested or contingent interest in or lien upon specific real or personal property within the State or that such an interest or lien in favor of either party be enforced, regulated, defined or limited, or otherwise affecting the title to such property," the summons may be served out of the State. (Sections 232 and 235, Civ. Prac. Act.2) The language of the statute is suffi

1 See, generally, Walsh, "Development in Equity of the Power to Act in Rem," 6 N. Y. U. L. Rev. 1 (1928).

2 § 232 begins, "An order directing the service of a summons upon a defendant, by publication, may be made in either of the following cases," and one such case (subsection 7) is defined in the language quoted in the opinion.

§ 235 begins with the words quoted in the opinion, and further provides that,

ciently broad to cover an action for specific performance. Service without the State is sufficient to give the court jurisdiction, to grant a judgment in rem binding upon a non-resident defendant so served. It does not, however, bring the non-resident defendant's person within the jurisdiction of the court. A decree in personam "can be supported against a person who is not a citizen or resident of the State in which it is rendered only by actual service upon him within. its jurisdiction." (Hart v. Sansom, 110 U. S. 151.) The question presented by this appeal is whether a judgment in an action for specific performance is only a decree in personam against the party who has agreed to convey property, or whether the court in such an action may grant a judgment which will operate upon the property itself and result in a transfer of the title to a successful party though the defendant fail or refuse to obey a command of the judgment directed to him.

That a court of chancery acts only upon the person is a recognized maxim of equity jurisprudence. (Ewing v. Orr Ewing, L. R. 9 App. Cas. 34. See Cook on Powers of Courts of Equity, 15 Columbia Law Review, 36.) "A decree of chancery spoke in terms of personal command to the defendant, but its directions could only be carried into effect by his personal act. * * * The decree never stood as a title in the place of an actual conveyance by the defendant; nor was it ever carried into effect by any officer acting in the defendant's name." (Pomeroy on Equity Jurisprudence, section 428.) In jurisdictions where the decrees of a court of equity still retain the traditional form and effect of a mere command, a court of equity cannot obtain jurisdiction over a non-resident by service without the State. (Hart v. Sansom, supra; Spurr v. Scoville, 3 Cush. [Mass.] 1 578.) 2

1

"the summons may be served without an order, upon a defendant without the state in the same manner as if such service were made within the state, except that a copy of the complaint must be annexed to and served with the summons, and that such service must be made by a person or officer authorized under § 233 to make service without the state in lieu of publication. . . ." Persons authorized under § 233 include residents or citizens of New York, the sheriff or other official of the political subdivision where service is made, members of the bar of that state, etc.

1 Square brackets in original report.

(1888).

2 As to the decision in Hart v. Sansom, 110 U. S. 151 (1884), see Huston, Enforcement of Decrees in Equity (1915) 60; Walsh, Equity (1930) 35. Compare Dillon v. Heller, 39 Kan. 399 In Arndt v. Griggs, 134 U. S. 316 (1890), the Supreme Court upheld as constitutional a statute of Nebraska which provided for quieting title to Nebraska land as against non-residents after service by publication. The statute making the decree quieting title effective in rem was of the vesting type. Brewer, J., said (pp. 320-321): "If a State has no power to bring a nonresident into its courts for any purposes by publication, it is impotent to perfect the titles of real estate within its limits held by its own citizens; and a cloud cast upon such title by a claim of a non-resident will remain for all time

It has been doubted whether the jurisdiction of courts of equity was ever subject to any inherent limitation that its decrees must operate solely in personam, though the early chancellors adopted the "method of acting, as they said, upon the conscience of defendants." In this country "the statutes of the several states have virtually abolished the ancient doctrine that the decrees in equity can only act upon the person of a party, and have generally provided that in all cases where the ends of justice require such an effect, and where it is possible, a decree shall either operate ex proprio vigore to create, transfer, or vest the intended right, title, estate, or interest, or else that the acts required to be done in order to accomplish the object of the decree shall be performed by an officer of the court acting for and in the name of the party against whom the adjudication is made." (Pomeroy's Equity Jurisprudence, sec. 135.) "A bill for the specific execution of a contract to convey real estate is not strictly a proceeding in rem, in ordinary cases; but where such a procedure is authorized by statute, on publication, without personal service of process, it is, substantially, of that character." (Boswell's Lessee v. Otis, 50 U. S. 336.)

It has been held that the power of a court of equity to pronounce a judgment in rem is not dependent upon statute and may be exercised against a non-resident whenever the Legislature has authorized constructive service. (Tennant's Heirs v. Fretts, 67 West Va. 569.) In Silver Camp Mining Co. v. Dickert (31 Mont. 488) the court reached [an] opposite conclusion. We need not now decide between such conflicting decisions. A court of equity, undoubtedly, may by constructive service, in accordance with statute, acquire jurisdiction over a non-resident in an action for specific performance whenever it has power, whether granted by statute or inherent, to make a decree which will result directly, or through conveyance by an officer, in the transfer of title or interest in land. (Hollander v. Central Metal & Supply Co., 109 Md. 131; Felch v. Hooper, 119 Mass. 52. See, also, 2 Story's Equity Jurisprudence [14th edition],1 743.) 2

In this State the Legislature has provided in section 979 of the

a cloud, unless such non-resident shall voluntarily come into its courts for the purpose of having it adjudicated. But no such imperfections attend the sovereignty of the State. It has control over property within its limits; and the condition of ownership of real estate therein, whether the owner be stranger or citizen, is subjection to its rules concerning the holding, the transfer, liability to obligations, private or public, and the modes of establishing titles thereto. It cannot bring the person of a non-resident within its limits its process goes not out beyond its borders - but it may determine the extent of his title to real estate within its limits; and for the purpose of such determination may provide any reasonable methods of imparting notice."

1 Square brackets in original report.

2 But cf. Lipe v. Lipe, 327 Ill. 29, 45 (1927) (appointive type of statute).

Civil Practice Act that where a "judgment directs a party ** to convey real property, if the direction is disobeyed, the court, by order, besides punishing the disobedience as a contempt, may require the sheriff*** to convey the real property, in conformity with the direction of the court." "1 A decree of the court is enforceable not merely by punishment of a disobedient party but may be carried into effect by action of the sheriff operating directly upon the property. It may be that the primary purpose of the Legislature was to grant additional force to a decree in a case where the court had acquired jurisdiction of the person of a disobedient party. Its effect extends beyond such a case. It has changed the nature of the action from an action in personam, to an action substantially in rem. Though the court cannot by constructive service obtain jurisdiction of the person of a non-resident defendant and cannot compel such a defendant to obey its decree, where the court has the power to make a decree which will affect the interests of a party in property within the State, whether that party obeys the decree or not, the action is not purely in personam. The court's decree acts upon the property as well as the person of the non-resident defendant. In such case the objection that the court by constructive service obtains no jurisdiction over the person of a non-resident is without force. The Legislature has expressly provided that in an action for specific performance a court may enforce its decree by other means than direction to the defendant.

The order should be affirmed, with costs, and the questions certified answered "Yes."

CARDOZO, CH. J., POUND, CRANE, ANDREWS and O'BRIEN, JJ., concur; KELLOGG, J., dissents.

Order affirmed, etc.3

1 The portions of § 979 omitted from the quotation in the opinion relate to money or other personal property capable of delivery, admitted by a party to be in possession as trustee or as belonging or due to another, and provide that the court may require the sheriff to take, and deposit or deliver, such property. 2 Compare the comment on the very similar Massachusetts statute [Mass. Gen. Laws (Ter. ed. 1932), c. 183, § 43] in Massachusetts Superior Court Rules Annotated (1932) 50-51: "The principle that equity acts only in personam led to the doctrine that unless a court of equity has jurisdiction over the person of the defendant, its decree is without force, although the subject matter of the suit is within the territorial jurisdiction. . . . In Massachusetts, so far as statutes affecting jurisdiction are concerned, few breaches appear in the rule that equity acts only in personam. . . . The statute under which title to land is transferred by force of a final decree in equity seems immaterial in this connection, because it assumes a decree personally binding on the defendant."

3 There was no dissenting opinion. On the principal case, see 14 Corn. L. Q. 97 (1928); 27 Mich. L. Rev. 209 (1928).

Suppose the land had been in Connecticut. Could the New York court have granted relief? Could it have done so if the New York statute had been of the vesting type?

BUSH v. ALDRICH.

SUPREME COURT, SOUTH CAROLINA. 1918.

110 South Carolina 491.

THE opinion of the Court was delivered by MR. JUSTICE HYDRICK, This is an action for specific performance of a contract to convey real estate situated within this State. It was brought by the purchaser, who is a resident of the State, against the seller, who is a resident of the State of Georgia. An order for publication of the summons was duly obtained, and the summons and complaint were thereafter personally served upon defendant at his residence in the State of Georgia. And a notice of lis pendens was filed and recorded, according to the provisions of section 182 of the Code of Civil Procedure.1 Defendant moved to vacate the service on grounds hereinafter considered. From the order refusing his motion this appeal was taken.

The first ground of the motion was that as it appears from the allegations of the complaint that the action is one for specific performance of contract, and that defendant is not a resident of this State, and as it appears that defendant has not been personally served with process within this State, the Court has no jurisdiction of his person, and, therefore, cannot proceed to judgment, because no other than a personal judgment in such an action can be rendered.

It may be conceded that, originally, specific performance was an action in parsonam [personam], as, indeed, all proceedings in equity were. One of the maxims of equity is, aequitas agit in personam. Suits to foreclose mortgages, to partition lands, to quiet titles, and to remove clouds on titles, were all, originally, suits in personam. But in the course of time whether the change was brought about by the gradual extension of their jurisdiction by the Courts themselves or is the result of statutes it is unnecessary now to inquire such actions have almost universally come to be regarded as having a twofold aspect; that is, as being partly in personam and partly in rem.

Suits for partition, at least in this State, have now come to be regarded as really more in rem than in personam. It is the constant practice for the Court, by its judgment in partition, to vest the legal title in the several parties to whom portions of land have been al

The question of how far a court of equity of one state can and will make decrees for the conveyance of land in another state against a person over whom it has personal jurisdiction is considered in the course on Equity.

1 The topic of lis pendens is considered in the course on Equity. See 1 Chafee and Simpson, Cases on Equity (1st ed. 1934) 24-28; Note, 47 Harv. L. Rev. 1023 (1934).

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