Eaton v. McCall

• Decision Date: 31 March 1894
• Parties: EATON v. McCALL.
• Court: Maine Supreme Court

29 A. 1103

86 Me. 346

EATON

v. McCALL.

Supreme Judicial Court of Maine.

March 31, 1894.

Report from supreme judicial court, Kennebec county.

Bill in equity by Estelle Foster Eaton against Jessie A. McCall to foreclose a mortgage. Heard on report. Bill dismissed without prejudice.

Harvey D. Eaton, for plaintiff.

WISWELL, J. Bill in equity between parties resident in this state to foreclose a mortgage upon real estate situated in Nova Scotia.

The defendant failing to appear, the bill was taken pro confesso. Afterwards, on motion for a decree, the justice presiding at nisi prius, being doubtful as to the jurisdiction of this court, with the consent of counsel for the complainant reported the case to the law court to determine whether the bill should be sustained, and what decree, if any, should be made.

It is a familiar maxim of equity jurisprudence that equity acts against the person. Where the subject-matter is situated within another state or country, but the parties are within the jurisdiction of the court, any suit may be maintained and remedy granted which directly affects and operates upon the person of the defendant, and not upon the subject-matter, although the subject-matter is referred to in the decree, and the defendant is ordered to do or refrain from certain acts towards it, and it is thus ultimately, but indirectly, affected by the relief granted. Pom. Eq. Jur. § 1318.

Common instances of such an exercise of equity powers are where courts having jurisdiction of the person decree the specific performance of contracts to convey lands, enforce and regulate trusts, or relieve from fraud, actual or constructive, although the subject-matter of the contract, trust, or fraud, either real or personal property, be situated in another state or country. A leading case upon this subject, and one often cited in modern cases, is that of Penn v. Lord Baltimore, 1 Ves. Sr. 444, decided in 1750 by Lord Chancellor Hardwicke.

The fact of the situs of the land being without the commonwealth does not exempt defendant from jurisdiction; the subject of the suit being the contract, and a court of equity dealing with persons, and compelling them to execute its decrees and transfer property within their control, whatever may be the situs. Pingree v. Coffin, 12 Gray, 288.

The principle is thus stated by the federal supreme court: "Where the necessary parties are before a court of equity, it is immaterial that the res of the controversy, whether it be real or personal property, is beyond the territorial jurisdiction of the tribunal. It has the power to compel the defendant to do all things necessary, according to the lex loci rei sitae, which he could do voluntarily to give full effect to the decree against him. Without regard to the situation of the subject-matter, such courts consider the equities between the parties, and decree in personam according to those equities, and enforce obedience to their decrees by a process in personam." Phelps v. McDonald, 99 U. S. 298.

Our court, in Reed v. Reed, 75 Me. 264, sustained a bill and made the necessary decrees to redeem from a mortgage lands situated in the state of Wisconsin; and the court has, in many cases, proceeded and granted relief upon the maxim, "Equitas agit in personam."

The English chancery courts, regarding the right to redeem as a mere personal right, and the decree for a foreclosure a decree in personam, have often decreed the foreclosure of mortgages upon lands beyond the jurisdiction of the court Toller v. Carteret, 2 Vern. 495; Paget v. Ede, L. R. 18 Eq. 118.

In this country the question has frequently arisen as to the power of an equity court to decree the foreclosure of a mortgage upon property situated both within and without the jurisdiction of the court. The doctrine is sustained by the highest authorities that a court having jurisdiction of the person of the...