Clem v. Given's Ex'r

• Decision Date: 22 November 1906
• Citation: 55 S.E. 567,106 Va. 145
• Parties: CLEM . v. GIVEN'S EX'R et al.
• Court: Virginia Supreme Court

55 S.E. 567

106 Va. 145

CLEM .

v.GIVEN'S EX'R et al.

Supreme Court of Appeals of Virginia.

Nov. 22, 1906.

1. Courts—Jurisdiction—Real Property of Nonresident—Process—Publication.

It is competent for a state to provide by statute that the title to real estate within its limits shall be settled and determined by suit in which defendant, being a nonresident, is brought into court by publication.

[Ed. Note.—For cases in point see Cent. Dig. vol. 13. Courts, § 48.]

2. Process — Publication — Actions in Which Authorized — Specific Performance.

Va. Code 1904, §§ 3230-3232, providing for process by publication, and section 3232, declaring that "upon any trial or hearing under this section such judgment, decree, or order shall be entered as may appear just, " comprehend quasi proceedings in rem, the object of which is to reach and dispose of property within the state, and therefore in an action for specific performance of a contract of sale of real estate brought against a nonresident executor, and the widow and children of the vendor, it was proper to proceed against the executor by publication.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Process, § 100.]

Appeal from Circuit Court, Augusta County.

Bill by W. J. Clem against J. E. Givens, executor of W. C. Givens, deceased, and others. From judgment sustaining defendants' demurrer, plaintiff appeals. Reversed.

T. K. Hackman, for appellant.

Timberlake & Nelson, for appellees.

WHITTLE, J. The bill in this case was filed by the appellant, W. J. Clem, against J. E. Givens, executor of W. C. Givens, deceased, and the widow and children of the testator, five of the latter being infants, for specific performance of a written contract of sale, between the executor and the appellant, of real estate situated in Augusta county, Va.

By his will, which was probated in the county court of that county, in which court the executor also qualified, the testator empowered the executor to sell and convey his real estate at any time during the minority of his youngest child, and to distribute the proceeds among his children, paying the shares of minors to their duly qualified guardians. The widow and children are residents of the county of Augusta, but the bill alleges that the executor is a nonresident of the state, and he was proceeded against by publication.

The record shows that at the first calling of the case, by consent of all parties by counsel. It was submitted to the judge of the court for decision In vacation; but It is admitted that the agreement to this submission was not to be considered as a general appearance on the part of the nonresident executor. Subsequently, by demurrer to the bill, he denied the jurisdiction of the court to decree specific performance of the contract in question. The circuit court sustained the demurrer, and dismissed the bill, and the correctness of that ruling is now before us for review.

It may be conceded in the outset that a personal judgment against a nonresident upon substituted process is void, under the due process clause of the fourteenth amendment of the Constitution of the United States, even in the state where rendered. This was distinctly held in the leading case on the subject of Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, where it was adjudged indispensable to the validity of a proceeding in personam that personal service of process on the de-fendant be had within the jurisdiction, unless there has been a general appearance, which, of course, operates as a waiver of process. Huling v. K. R. & I. Co., 130 U. S. 559, 9 Sup. Ct. 603, 32 L. Ed. 1045; Haddock v. Haddock, 201 U. S. 562, 26 Sup. Ct. 525, 50 L. Ed. 867. If, on the other hand, the proceeding be in rem, or quasi in rem, where the res to be affected by the litigation is within the jurisdiction of the court, notice by publication is ordinarily sufficient

"Jurisdiction is acquired in one of two modes: First, as against the person of the defendant, by the service of process; or, second, by a procedure against the property of the defendant within the jurisdiction of the court. In the latter case, the defendant is not personally bound by the judgment, beyond the property in question. And it is immaterial whether the proceeding against the property be by an attachment or bill in chancery. It must be substantially a proceeding in rem. The 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, 9 How. (U. S.) 336, 13 L. Ed. 164.

Arndt v. Griggs, 134 U. S. 316, 10 Sup. Ct 557, 33 L. Ed. 918, is authority for the proposition, that "a state may provide by statute that the title to real estate within its limits shall be settled and determined by a suit in which a defendant, being a nonresident, is brought into court by publication."

That was an action to recover possession of land, and to quiet title. At pages 320, 321, of 134 U. S., at pages 558, 559, of 10 Sup. Ct, 33 L. Ed. 918, Mr. Justice Brewer, in response to the suggestion that an action to quiet title is a suit in equity, and that equity acts upon the person, observes: "While these propositions are doubtless correct as statements of the general rules respecting bills to quiet title, and proceedings in courts of equity, they are not applicable or controlling here. The question Is not what a court of equity, by virtue of its general powers and in the absence of a statute, might do, but it Is: What jurisdiction has a state over titles to real estate within its limits, and what jurisdiction may it give by statute to its own courts, to determine the validity and extent of the claims of nonresidents to such real estate?

"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 nonresident will remain for all time a cloud, unless such nonresident 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 subject to its rules concerning the holding, the transfer, liability to obligations, private and public, and the modes of establishing titles thereto. It cannot bring the person of a nonresident within its limits—its process goes not 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."

This is an instructive case, and reviews the authorities bearing on the subject under discussion, and it leaves no room to doubt the power of the states to provide substituted process in all proceedings relating to or affecting the titles to lands within their respective limits.

The subject is also interestingly treated in 5 Pomeroy's Eq. Jur. (Pom. Eq. Remedies, vol. 1) §§ 12, 13, 14 and 15. At section 15, the author says: "As a result of statute, it is held in many states that a decree removing a cloud from or quieting title to land within the jurisdiction may be based upon publication of summons. Citing Arndt v. Griggs, supra; Bryan v. Kennett, 113 U. S. 179, 5 Sup. Ct. 407, 28 L. Ed. 908; Ormsby v. Ottman, 85 Fed. 492, 29 C. C. A. 295; Morrison v. Marker (C. C.) 93 Fed. 692; Perkins v....