Bullock v. Bullock

• Citation: 51 N.J.E. 444,27 A. 435
• Parties: BULLOCK v. BULLOCK.
• Decision Date: 15 August 1893
• Court: New Jersey Court of Chancery

27 A. 435

51 N.J.E. 444

BULLOCK

v. BULLOCK.

Court of Chancery of New Jersey.

Aug. 15, 1893.

(Syllabus by the Court.)

Bill by Anna E. Bullock against Thomas O. Bullock for the specific performance of an order of court in another state, directing the payment of alimony. Heard on motion to strike out bill. Motion granted.

Edward Q. Keasbey, for plaintiff.

James Buchanan, for defendant.

BIRD, V. C. The bill in this cause is filed for the purpose of enforcing a decree and order of a court in the state of New York, upon a petition filed there in a suit for divorce from the bonds of matrimony, in which it was directed that the defendant should pay to the petitioner the sum of $100 per month; and the order was that he should, in order to secure the payment thereof, execute to the petitioner a mortgage upon a certain tract of land lying in the state of New Jersey. The mortgage to be so given was to be in such form as the court should subsequently approve. The court subsequently directed the said defendant to execute a mortgage upon all his real estate, and particularly upon the real estate owned by him in the state of New Jersey. One of the conditions of the mortgage so directed by the said court to be given was as follows: "And it is hereby expressly agreed that after default in the payment in the manner provided, of any of the sums of money herein mentioned, for the space of sixty (60) days; or after default in the payment of any tax or assessment on said premises for the space of ninety (90) days after notice and demand, then that there shall become due and be deemed as secured by this indenture of mortgage, at the option of the said party of the second part, at the time of such default, a sum of money equivalent to the present worth of an annuity of twelve hundred dollars a year, payable monthly during the probable lifetime of the said Anna E. Bullock." The prayer is that the said defendant be decreed "to execute and deliver to the complainant the mortgage on said premises therein directed to be made, and delivered according to the form therein provided together with the general prayer for other and further relief." Under the rules, notice was given to strike out the bill of complaint, principally because by the said bill the complainant sought the specific performance by the court of chancery of this state of the judgment or decree of another state, which had no jurisdiction of the lands which such decree directed should be put in pledge, by way of mortgage, to secure the payment of money which the defendant in this suit in such other state was decreed to pay.

Is this demurrer well taken? In other words, is the full faith and credit contemplated by the first section of the fourth article of the constitution of the United States, and laws made in pursuance thereof, comprehensive enough to embrace the case made by this bill? That a decree for the payment of alimony obtained in a sister state may be enforced in this state there is no doubt This is settled by the case of Barber v. Barber, 21 How. 582. To this extent the courts of this state have gone. But how? According to what form of procedure? Shall it be according to the form of procedure in the state where the decree was rendered, or the form of procedure in the state in which such enforcement is sought? The complainant insists that the sister state not only had the right to pronounce a judgment or decree fixing the amount of alimony due, but also the means by which it shall be collected or secured. In my judgment the faith and credit contemplated by the constitution and the laws only extends to judgments or decrees, and has no reference whatsoever to process in the nature of an execution. So far as I have been able to ascertain from a very thorough examination of cases, the courts have taken this view of the case. I have not discovered an instance where the title to property, located beyond the jurisdiction of the court in which the judgment or decree was pronounced, has been allowed to be affected in any manner by the efforts of the courts pronouncing the judgment or decree, except as they have done so by proceeding against him in person. This view seems to be strongly supported by all the judges who have considered it. The general doctrine will be found presented in the following cases: Nelson v. Potter, 50 N. J. Law, 324, 15 Atl. Rep. 375; Lindley v. O'Reilly, 50 N. J. Law, 036, 15 Atl. Rep. 379; Davis v. Headley, 22 N. J. Eq. 115, cited in Nelson v. Potter, supra; McCormick v. Sullivant, 10 Wheat 192; Darby v. Mayer, Id. 465; McElmoyle v. Cohen, 13 Pet. 312; Farmers' Loan & Trust Co. v. Postal Tel. Co., (Conn.) 11 Atl. Rep. 184. That judgments obtained in one state are only made effectual by the courts pronouncing them by proceedings in personam is fully established by the following authorities: Farmers' Loan & Trust Co. v. Postal Tel. Co., supra; Carpenter v. Strange, 141 U. S. 87, 11 Sup. Ct Rep. 960; Lewis v. Darling, 16 How. 1; Booth v. Clark, 17 How. 322. But counsel for the complainant earnestly insists that many cases mean more than is to be implied from the foregoing, and in that belief calls attention to the following cases: Massie v. Watts, 6 Cranch, 148, in which case the celebrated case of Penn v. Lord Baltimore, 1 Ves. Sr. 444, is referred to and commented upon, as was also the case of Arglasse v. Muschamp, 1 Vern. 75, as was likewise the case of Earl of Kildare v. Eustace, Id. 419, as well as the cases of Toller v. Carteret, 2 Vern. 494; Barber v. Barber, 21 How. 582; Cheever v. Wilson, 9 Wall. 108. I think the proper consideration of these cases will lead to the certain conclusion that the only power which the courts claim was that of proceeding against the person. The language of Chief Justice Marshall expresses the whole doctrine upon this point, in concluding his judgment in the case of Massie v. Watts, supra. He said: "Upon the authority of these cases, and others which are to be found in the books, as well as upon general principles, this court is of opinion that in a case of fraud, or trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of the court may be affected by the decree." I presume no one will deny that when defendants are properly brought into a court of equity, and decrees are pronounced against them, it has the power to compel them to perform or execute such decrees, wherever the lands or goods in controversy may be situate. The case of Cheever v. Wilson goes no further than this. In that case a decree of divorce was pronounced in Indiana, upon an agreement between the parties that the wife should assign certain of her rents coming due to her from lands in the district of Columbia. After the decree was entered, the wife made an assignment in accordance with the agreement and the decree. It was to enforce this assignment of the rents and profits that the bill was filed in that case, and the real controversy was as to the amount due. Then, if these things be so, what was the object of the provision of the constitution referred to? Simply that full faith and credit should be given to the judgments of sister states when offered as evidence or made the foundation of legal proceedings. When properly or regularly obtained, by a court having jurisdiction of the person and the subject-matter, they are not to be questioned, unless it can be shown that they have been discharged, or that they were fraudulently obtained, or were founded upon a penalty or forfeiture, or that they are within the statute of limitations. Rice, Ev. § 142, where the limits of the rule, as well as the fullest scope claimed for it, are presented, and the authorities relied upon. 1 Greenl. Ev. §§ 546-548. In this last section, Prof. Greenleaf, using the language of Mr. Justice Story, says: "The constitution did not mean to confer any new power upon the states, but simply to regulate the effect of their acknowledged jurisdiction over...