Bullock v. Bullock

• Decision Date: 23 November 1894
• Citation: 30 A. 676,52 N.J.E. 561
• Parties: BULLOCK v. BULLOCK et al.
• Court: New Jersey Supreme Court

30 A. 676

52 N.J.E. 561

BULLOCK

v. BULLOCK et al.

Court of Errors and Appeals of New Jersey.

Nov. 23, 1894.

(Syllabus by the Court.)

Appeal from court of chancery.

Bill by Anna E. Bullock against Thomas O. Bullock and others for a discovery, to set aside certain mortgages and conveyances, and to compel defendant Bullock to execute to complainant a mortgage, pursuant to a decree of the supreme court of New York. From a decree dismissing the bill (27 Atl. 435), complainant appeals. Affirmed.

Edward Q. Keasbey, for appellant.

James Buchanan, for respondents.

MAGIE, J. The appellant in this cause was the complainant below. Her bill of complaint stated the following facts, viz.: That she had commenced an action in the supreme court of the state of New York, which court had "jurisdiction in the case," against respondent, her former husband, for the purpose of dissolving the marriage previously entered into by them; that respondent was personally served with process, and duly appeared in said action; that such proceedings were had thereon that a judgment was rendered in her favor, whereby it was adjudged that said marriage should be dissolved, that respondent should pay to her, as alimony, $100, on the 1st day of each month, commencing June 1, 1892, and should execute a mortgage, as security for such payments, upon lands in the state of New Jersey, of such form and containing such provisions as the court should subsequently direct and approve; that said court, by a subsequent order, directed respondent to execute, acknowledge, and deliver to appellant a mortgage of a specified form, and containing specified provisions upon lands in this state, which were particularly described in the order; that respondent had failed and refused to execute and deliver the mortgage as directed, and made various mortgages and conveyances of said lauds without consideration, and with the fraudulent purpose of defeating appellant's rights. It was charged in the bill that appellant, by virtue of the decree and order of the New York court, acquired an equitable lien on said lands, prior to the lien and interest of the mortgagees and grantees of respondent, and an equitable right to a mortgage on said lands, in accordance with the decree and order. Upon these statements and charges, the prayers of the bill were for answer and discovery, for a decree setting aside the mortgages and conveyances of respondent, and that he be "decreed, pursuant to the said decree and order of the New York supreme court, to execute and deliver" to her "the mortgage on said premises, therein directed to be made and delivered, according to the form therein provided." There was a general prayer for relief. Respondent moved the court of chancery to dismiss the bill, pursuant to the practice established by rule 215 of that court, upon the ground that the bill exhibited no equity entitling appellant to the relief she prayed for. The notice of the motion specifically set forth the grounds of objection. The motion was heard by Vice Chancellor Bird, and, upon his advice, a decree was made dismissing the bill. The opinion of the vice chancellor is reported in 51 N. J. Eq. 444, and 27 Atl. 435. From this decree appellant has prosecuted the appeal which is now to be decided. A motion to dismiss a bill, under chancery rule 215, is a substitute for a demurrer. The rule was designed to furnish a speedy mode of bringing to adjudication questions which, before its adoption, could only be raised by demurrer. Obviously, all facts stated in the bill which are relevant and well pleaded must be deemed to be admitted to be true upon such a motion, as upon a demurrer, of which it is the substitute. Looking at the bill to discover what facts must have been taken to be true upon the hearing of the motion to dismiss, I find difficulty in determining how extensive a jurisdiction is thereby asserted to have inhered in the supreme court of New York. It is expressly stated that the action commenced in that court was for the purpose of dissolving the marriage of the parties, and there is a conjoined statement that the court had jurisdiction of the case. From these statements it was obviously to be assumed that the court in question had jurisdiction to decree a divorce and annul a marriage. But is it to be inferred—for there is no express averment of it—that the same court possessed jurisdiction to fix the amount and require payment of alimony, and especially to require a defendant to secure the payment of alimony by a charge upon lands lying beyond the territorial jurisdiction of the court? Alimony is, in general, an incident of divorce. It may be justifiable to infer that a court empowered to dissolve the bonds of matrimony would also be clothed with authority to determine on the amount of alimony, and to render judgment therefor. But how, without some further averment, is an inference to be drawn that the same court was authorized to require security for the payment of alimony to be given by the mortgage of lands, and of lands beyond its jurisdiction? If, however, the bill is defective in the respect suggested, the defect was not included in the causes set out in the notice of the motion to dismiss, and no objection upon that ground was made in the court below or here. From this I think we must deem it to have been conceded that the bill properly averred the jurisdiction of the supreme court of New York to make the decree and order mentioned in the bill, and copies of which were annexed to and made a part thereof. The decree, in this respect, ordered respondent to pay to appellant the alimony, from time to time, during her natural life, and to execute and deliver to her a mortgage on his real estate, and particularly that located in the state of New Jersey, to secure such payments. The order simply required respondent to perform the decree by executing, acknowledging, and delivering to appellant a mortgage on particular lands in New Jersey, of a form shown in a schedule annexed to the order. The order and requirement of the court was therefore directed in personam, and there was no attempt to adjudicate or enforce an adjudication in rem.

It is scarcely necessary to observe that a court of New York could not have been empowered to affect, by its decree or judgment, lands lying within another state; for no principle is more fundamental or thoroughly settled than that the local sovereignty, by itself or its judicial agencies, can alone adjudicate upon and determine the status of lands and immovable property within its borders, including their title and its incidents and the mode in which they may be charged or conveyed. Neither the laws of another sovereignty, nor the judicial proceedings, decrees, and judgments of its courts, can in the least degree affect such lands and immovable property. Story, Confi. Laws, §§ 543, 591. The concession as to the jurisdiction of the supreme court of New York in this case must therefore be deemed to be limited to a jurisdiction to proceed in personam, and not to extend to a determination, adjudication, or decree in rem. The jurisdiction thus conceded to the supreme court of New York is exactly analogous to the jurisdiction which, since the decision of Penn v. Lord Baltimore, 1 Ves. Sr. 444, has been universally recognized as inherent in courts administering equity. This recognized jurisdiction extends to making decrees in cases of equitable cognizance, such as fraud, trust, and specific performance against persons brought into those courts, notwithstanding such decrees incidentally affect lands beyond the court's jurisdiction. But the exercise of this jurisdiction has been supported solely on the ground that it operated in personam only, and did not extend to the utterance of decrees in rem. In the leading American case, Chief Justice Marshall declared that the question was whether the question presented was an unmixed question of title, or a case of fraud, trust, or contract. Massie v. Watts, 6 Cranch. 148. If relief cannot be effectively given by the decree in personam, such courts will not retain the bill. Morris v. Remington, 1 Pars. Eq. Cas. 387; Lindley v. O'Reilly, 50 N. J. Law, 636, 15 Atl. 379. Nor will the power be exerted in personam to compel an act affecting lands in another jurisdiction of doubtful legality. Blount v. Blount, 1 Hawks, 365. The power of such courts to make effective such decrees is limited to its process operating upon the party, such as sequestration of property within jurisdiction, attachment for contempt, and the like; it will not extend to validating a conveyance of the foreign lands, made by its master or commissioner, in default of the performance of the decree by the party. Watts v. Waddle, 6 Pet 390; Burnley v. Stevenson, 24 Ohio St. 474. When, by the process of the court acting upon the party, obedience to the decree is enforced as by the conveyance, it is the conveyance, not the decree, that affects the lands in the foreign jurisdiction. Davis v. Headley, 22 N. J. Eq. 115. The long line of cases Illustrating this doctrine and its limitations is collected in 22 Am. & Eng. Enc. Law, 918. Nowhere has the doctrine been more clearly stated than in our own courts. Wood v. Warner, 15 N. J. Eq. 81; Davis v. Headley, ubi supra; Potter v. Hollister, 45 N. J. Eq. 508, 18 Atl. 204; Id., 46 N. J. Eq. 609, 22 Atl. 56; Lindley v. O'Reilly, 50 N. J. Law, 636, 15 Atl. 379. In my judgment, it does not admit of doubt that the jurisdiction of the supreme court of New York, if properly averred in the bill, was a jurisdiction to make a decree as to alimony, and its being secured by mortgage on lands In New Jersey, only in personam, and to enforce it by any process against respondent which is proper in that state. Nor was the decree which was pronounced by that court capable of any other construction than one which shows it to have been within such conceded jurisdiction. From these considerations, I deem it evident that the...