Close v. Wheaton

• Decision Date: 06 December 1902
• Docket Number: 12,823
• Citation: 70 P. 891,65 Kan. 830
• Parties: WILLIAM B. CLOSE et al. v. GEORGE E. WHEATON et al
• Court: Kansas Supreme Court

70 P. 891

65 Kan. 830

WILLIAM B. CLOSE et al. v. GEORGE E. WHEATON et al

No. 12,823

Supreme Court of Kansas

December 6, 1902

Decided July, 1902.

Error from Trego district court; LEE MONROE, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

CONTRACT -- Specific Performance -- Venue. An action to compel the specific performance of an agreement to convey land, if the defendant's obligation is in contract merely, without any element of trust, is an action in personam, and must be brought in the county where the defendant resides, and not of necessity in the county where the land is situated.

F. C Elliott, and W. R. Hazen, for plaintiffs in error.

L. C. Poehler, and Bishop & Mitchell, for defendants in error.

DOSTER C. J. All the Justices concurring.

OPINION

DOSTER, C. J.:

This was an action of specific performance to compel the execution of a deed to land situated in Trego county. The action was brought in that county, but the defendants of whom performance was asked were non-residents of the state, and other defendants of whom relief of an incidental character was asked, though residents of the state, were nonresidents of the county. Seasonable objections to the jurisdiction of the court over the persons of the defendants were made and overruled. A trial was had and judgment rendered for plaintiffs, to reverse which error has been prosecuted to this court. The jurisdictional subject only need be considered.

There is no doubt that specific performance, looking alone to its nature, operates in personam entirely, and that, as a consequence, independently of statute, a suit to compel the execution of title papers can be brought only in the county of the defendant's residence. The case of Spurr and others v. Scoville, 3 Cush. 578, is a pointed authority on the subject. The endeavor there was to compel a resident of Connecticut, on whom personal service had not been obtained, to execute a contract for the conveyance of lands in Massachusetts. Among other things, including a review of many of the authorities, the court said:

"But this suit is a proceeding in personam merely, in which a decree is sought against the person and not against the property, and it is wholly immaterial whether the land which was the subject of the complaint be or be not within the jurisdiction of the court. It is sufficient if the parties to be affected and bound by the decree are within the jurisdiction. An inability to enforce the decree in rem would constitute no objection to the right to entertain the suit. If, however, the defendant were within the jurisdiction, and should refuse to perform a decree against him, if the lands also were within the jurisdiction, in addition to proceedings in personam the court might perhaps put the plaintiff in possession of the land. (2 Story's Equity, § 744.) . . . This is a proceeding strictly in personam, and the party must be, not technically or constructively, but actually and really, before the court and within its jurisdiction. An appearance by attorney to object to the jurisdiction cannot give jurisdiction in a case like this."

The character of an action for specific performance as in personam entirely is so well established that courts having jurisdiction of the parties frequently entertain suits to compel the execution of contracts for the conveyance of lands in other states in which, of course, their decrees as to the res cannot operate. (Lindley v. O'Reilly, 50 N.J.L. 636, 1 L. R. A. 79, 15 A. 379, 7 Am. St. Rep. 802.)

Sometimes a question may exist as to whether the complaining party may not have such peculiar interest in the property as to entitle him to the enforcement of a trust, and not of contract merely (Merrill v. Beckwith, 163 Mass. 503, 40 N.E. 855) in which event the action might be local and not transitory, but the plaintiffs in this case have neither stated in their pleadings nor claimed before us such character of right. We are, therefore, well convinced that the inherent nature of the ordinary proceeding to compel a vendor to comply with his contract, as contract, by the execution of a deed, makes the action one in personam, which can be brought only where the defendant resides or may be legally served with personal process. Does our statute authorize it to be elsewhere brought? The provisions having relation thereto are ...