Bush v. Aldrich

• Decision Date: 23 September 1918
• Docket Number: 10092.
• Citation: 96 S.E. 922,110 S.C. 491
• Parties: BUSH v. ALDRICH.
• Court: South Carolina Supreme Court

96 S.E. 922

110 S.C. 491

BUSH v. ALDRICH.

No. 10092.

Supreme Court of South Carolina

September 23, 1918

Appeal from Common Pleas Circuit Court of Barnwell County; Thomas S Sease, Judge.

Action by James Julian Bush against Robert M. Aldrich. From an order denying motion to vacate the service, defendant appeals. Affirmed.

Watts and Gage, JJ., dissenting.

R. A Ellis and J. O. Patterson, Jr., both of Barnwell, for appellant.

E. A Brown, of Barnwell, for respondent.

HYDRICK J.

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. 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 personam, as, indeed, all proceedings in equity were. One of the maxims of equity is, æquitas 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 allotted, and otherwise adjust the equities of the parties with respect to the land without an actual sale or conveyance; as, for example, where one of the cotenants has made improvements on a part of the land, that part may be set off to him in the partition, and the legal title thereto be vested and confirmed in him by the judgment of the court, without resort to the ancient and cumbersome method of requiring a conveyance by the other cotenants.

And at a very early period in the history of this state it was held that the court of equity had jurisdiction in an action precisely like this for specific performance, and that it would enforce its judgment by putting the plaintiff in possession if the defendant should prove to be contumacious. Telfair v. Telfair, 2 De Saus. 271. See, also, Bowder v. Schatzell, Bailey, Eq. 360, 366, 23 Am. Dec. 170, where the court said:

"But our courts do not always act in personam. It seems that they may act directly on the property, without the intervention of other parties; and the title may be changed by the mere act of the court, without any act of the party." (Italics added.)

See, also, Hurt v. Hurt, 6 Rich. Eq. 114. A large percentage of the titles to real estate in this state rests upon such decrees and judgments, and to hold now that they were ineffectual to transfer the legal title would be productive of great mischief and much litigation.

The Constitution and statutes of this state have vested in the court of common pleas all the jurisdiction that was exercised by the courts of common law and equity prior to the adoption of the reformed procedure, and that court has jurisdiction "in all civil cases" (Const. art. 5, § 15), with power to render judgment, which is defined by the statute to be "the final determination of the rights of the parties in the action" (Code of Civil Procedure, §§ 304, 335), and power to enforce such judgment by execution against persons and property (Code Civ. Proc. § 342 et seq., 303). We do not doubt, therefore, the power of the court to act directly upon property within its jurisdiction, and by its judgment to divest one party of the legal title and vest it in another, if that be necessary or proper to a final determination of the ultimate rights of the parties.

The statutes provide that sales and conveyances made under the judgments and orders of the court shall be effectual to pass the rights and interests of the parties. Code of Civil Proc. § 345. In Dinkins v. Simons, 97 S.C. 269, 81 S.E. 638, it was held that the judgment in an action for specific performance might be for the sale of the land; and in 97 S.C. at page 269, 81 S.E. 638, the court quoted with approval the following from 20 Enc. Pl. & Pr. at pages 479 and 480:

"Where equity has once acquired jurisdiction, by reason of the claim for specific performance, it may retain jurisdiction and proceed to a complete adjudication, even to the extent of establishing legal rights. Thus, in addition to decreeing specific performance, the court may give judgment for possession. Where specific performance of an agreement is impracticable, the plaintiff may have approximate relief, in some other form, which will secure to him the substantial advantages of his contract. The court is bound to see that it does that complete justice at which it aims and which is the ground of its jurisdiction."

But, aside from this power of the court to render such a judgment, when the property is within the territorial jurisdiction of the court, and the parties in interest are before it, upon due and legal service of process, we think there can be no doubt that where the defendant is a nonresident and cannot be personally served with process, the power to render such a judgment has been conferred by section 185 of the Code of Civil Procedure. The relevant provisions of that section, as amended by the act of 1914 (28 Stat. 534), read:

"Where the person on whom the service of the summons is to be made cannot, after due diligence, be found within the state, and that fact appears by affidavit to the satisfaction of the court, or a judge thereof, the clerk of the court of common pleas, master, or the probate judge of the county where the trial is to be had, and it in like manner appears that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a proper party to an action relating to real property in this state, such court, judge, clerk, master, or judge of probate may grant an order that the service be made by the publication of the summons in either of the following cases: 1. * * * 3. Where he is not a resident of this state, but has property therein, and the court has jurisdiction of the subject of the action. 4. Where the subject of the action is real or personal property in this state, and the defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding the defendant from any interest or lien therein."

It will be noted that the statute is general in its terms. It does not mention any particular action or actions by name, but merely describes several classes of actions which may be brought under it. But that is no objection to the statute, for, clearly, if the Legislature has power to enact such a statute at all, it may do so in general as well as in specific terms, and if the action comes within any one or more of the classes described it may be maintained, just as if it had been named.

Therefore, in passing, we may say that the cases relied upon by appellant which hold that, where a statute specifies certain actions or certain kinds of actions that may be commenced and prosecuted on constructive service of process, others, not included, cannot be so brought, are not in point, because the actions so excluded did not come within the purview of the statutes as construed. This action comes within the class described in each subdivision of the section above quoted. The facts fulfill the requirements of subdivision 3 because defendant is not a resident of the state, but has property therein, and the court has jurisdiction of the subject of the action.

In this connection we hold that "the subject of the action," as those words are here used in the statute, is not, as contended by appellant, the specific performance of the contract. That is only one of the objects of the action--one of the things sought to be attained by the judgment; but the subject of the action is the property involved in the litigation. Barrett v. Watts, 13 S.C. 441; Pom. Rem. § 475. The statute itself makes that plain in subdivision 4, where it speaks of the subject of the action as real property within the state.

It is equally clear that the facts satisfy the requirements of subdivision 4. The subject of the action is real property within this state, and defendant has an interest in it, and the relief demanded consists, wholly or partly, in excluding him from any interest therein.

Therefore we must conclude that, if the court shall find and adjudge that the plaintiff is entitled to specific performance of the contract, it has the power to frame its judgment so as to vest the legal title of the...