Light v. Doolittle

• Decision Date: 21 December 1921
• Docket Number: 11,311
• Citation: 133 N.E. 413,77 Ind.App. 187
• Parties: LIGHT v. DOOLITTLE ET AL
• Court: Indiana Appellate Court

133 N.E. 413

77 Ind.App. 187

LIGHT v. DOOLITTLE ET AL

No. 11,311

Court of Appeals of Indiana

December 21, 1921

From Newton Circuit Court; C. W. Hanley, Judge.

Action by Alvia B. Light against Angie Stewart Doolittle and another. From a judgment for defendants, the plaintiff appeals.

Reversed.

R. R Cummings, Truman F. Palmer and George Marvin, for appellant.

T. B Cunningham, for appellees.

OPINION

MCMAHAN, J.

Complaint by appellant against appellees, who are husband and wife, alleging that appellee Angie Stewart Doolittle, being the owner of certain real estate in Newton county, Indiana, entered into a written contract, whereby she agreed to convey said real estate to appellant upon certain terms; that appellant has at all times been ready to perform all the conditions required of him, and has tendered full performance and demanded that appellees convey said real estate in accordance with said contract; and the refusal of appellees to convey the real estate. The prayer of the complaint is that appellee be required to perform her contract; that a commissioner be appointed to convey said real estate to appellant and for all other proper relief.

A summons was issued to the sheriff and returned "not found," after which an affidavit was filed, stating that appellees were nonresidents of this state, and that "this cause of action is founded upon and connected with a contract in relation to real estate in the state of Indiana." Notice having been given by publication appellees appeared specially and filed a motion to set aside and quash the notice on the ground that the cause of action is such that service cannot be had by publication. This motion was sustained and appellant appeals.

The only question presented by this appeal is--Can an action for specific performance of a contract to convey real estate in this state be prosecuted in the county in which the land is located against a nonresident defendant served by publication only?

The general rule is that in the absence of any statutory modifications a suit to compel the specific performance of a contract to convey real estate is a suit in personam, and not in rem. It has frequently been held that the venue of a suit for specific performance of such a contract is not necessarily in the county in which the land is located. Coon v. Cook (1855), 6 Ind. 268; Dehart v. Dehart (1860), 15 Ind. 167; Bethell v. Bethell (1884), 92 Ind. 318; Close v. Wheaton (1902), 65 Kan. 830, 70 P. 891; Johnston v. Wadsworth (1893), 24 Ore. 494, 34 P. 13; Morgan v. Bell (1892), 3 Wash. 554, 28 P. 925, 16 L.R.A. 614. These cases illustrate the principle that such a suit is regarded as in personam and not in rem, and in so far as the question of local venue is concerned the matter is subject to statutory regulation. Parker v. McAllister (1859), 14 Ind. 12; Epperly v. Ferguson (1902), 118 Iowa 47, 91 N.W. 816; Bradford v. Smith (1904), 123 Iowa 41, 98 N.W. 377; Collins v. Park (1892), 93 Ky. 6, 18 S.W. 1013.

This rule is well stated in Epperly v. Ferguson, supra, where it is said:

"It is the general rule that an action for specific performance is primarily in personam, and that a party to such a contract may be sued wherever found. But it does not necessarily follow that such actions must be brought at the residence of the defendant, whether the court there has jurisdiction of the property or not; and, while the general rule is as stated, the action is transitory, unless made local by statute, and may be brought in court having jurisdiction of the property, or in one having jurisdiction of the person only, at the option of the plaintiff."

An action to foreclose a mortgage is in rem, but an action to foreclose the mortgage and for judgment for the indebtedness secured thereby is both in rem and in personam and must be brought in the county where the land is situated and a personal judgment in such an action may be rendered against a defendant personally served in any county in the state. Of course no personal judgment can be rendered against a nonresident defendant served by publication in such an action. Those sections of the statute requiring all actions to be commenced in the county where the defendants, or one of them reside applies to transitory actions, the cause of which is distinct and not necessarily connected with any other subject or cause of action. Collins v. Park, supra.

The principle has been frequently applied by upholding the jurisdiction of a court of equity having personal jurisdiction of the parties, by personal service within the state or by appearance, to entertain a suit for the specific performance of a contract to convey real property situated in another state and outside the territorial jurisdiction of the court. Bethell v. Bethell, supra.

In the absence of a statute changing the rule, the principle has been applied conversely so as to prohibit a court from acquiring jurisdiction of a suit for the specific performance of a contract to convey land within its territorial jurisdiction by the service by publication or personal service outside of the state upon a nonresident who did not appear. Worthington v. Lee (1884), 61 Md. 530; Spurr v. Scoville (1849), 3 Cush. (Mass.) 578; Silver Camp Mining Co. v. Dickert (1904), 31 Mont. 488, 78 P. 967, 67 L.R.A. 940, 3 Ann. Cas. 1000.

But it has been held under a statute authorizing the appointment of a trustee to convey land in an action for specific performance where the defendants were nonresidents, that the proceeding was in rem and notice might be given the nonresidents by publication. Hollander v. Central Metal Co. (1909), 109 Md. 131, 71 A. 442, 23 L.R.A. (N. S.) 1135; Hart v. Sansom (1884), 110 U.S. 151, 3 S.Ct. 580, 28 L.Ed. 101; Arndt v. Griggs (1890), 134 U.S. 316, 10 S.Ct. 557, 33 L.Ed. 918.

The statute of Maryland provided that in any suit in chancery respecting the sale, partition, conveyance, or transfer of any real or personal property in that state, or to enforce any contract or lien relating to same, the court might order notice to be given to nonresidents. Another statute authorized the court, whenever the execution of a deed was decreed to appoint a trustee to execute it. In discussing the effect of these statutes the court in Hollander v. Central Metal Co., supra, said:

"The prayer of the bill and the covenant here sought to be enforced is for conveyance to the appellee of the lot described in the lease, and while the Court could not enforce a decree requiring a non-resident to execute a deed for the property, its decree may be made effective under the provision of the Code, by the appointment of a trustee to convey the title of the appellants, and to that end the proceedings are in rem and not in personam."

Conceding that a suit for the specific performance of a contract to convey real estate is in personam and not in rem, with the result that a court having personal jurisdiction of the parties may entertain the suit in respect to land outside of the state, and that a court without personal jurisdiction of the parties may not entertain such suit in respect to land within its territorial jurisdiction, it does not necessarily follow that the legislature of the state within which the land is situated does not have power to give such suit the character of a suit in rem or quasi rem, so as to sustain the jurisdiction upon constructive service against a nonresident. Upon the contrary, the power of the state in this respect has been expressly affirmed in a number of cases which recognize the general principle that such a suit is in personam and not in rem. Boswell v. Otis (1850), 9 HOW 336, 13 L.Ed. 164; Hart v. Sansom, supra; Arndt v. Griggs, supra; Single v. Scott Paper Mfg. Co. (1893), (C. C.) 55 F. 553; Adams v. Heckscher (1897), (C. C.) 83 F. 281; Clem v. Givens (1906), 106 Va. 145, 55 S.E. 567; Felch v. Hooper (1875), 119 Mass. 52; Horner v. Ellis (1907), 75 Kan. 675, 90 P. 275, 121 Am. St. 446.

It seems to us, notwithstanding the general principle that a suit for the specific performance of a contract to convey real property is a suit in personam and not in rem, so that jurisdiction cannot rest upon constructive service of process against a nonresident who does not appear, yet that such a suit may by statute be given the character of a suit in rem or quasi in rem so as to sustain jurisdiction upon this character of service even as against a nonresident. If a statute providing for service by publication upon non-resident defendants specially names suits for specific performance or describes the class of actions in which such service may be had in terms which clearly embrace suits for specific performance, that in itself is sufficient to characterize the suit as one in rem or quasi in rem for this purpose.

There is no necessary inconsistency on the part of courts in assuming jurisdiction of suits for the specific performance of contracts in respect to real property beyond the territorial jurisdiction, if the parties are personally subject to their jurisdiction, upon the theory that such suits are in personam and not in rem and at the same time assuming jurisdiction of such suits in respect to land within the territorial jurisdiction upon constructive service against nonresidents upon the theory that such suits have by virtue of the statute become for the time being or for the occasion a suit in rem or quasi in rem. This theory is supported by Burrall v. Eames (1856), 5 Wis. 260 involving a question of local venue in a suit for specific performance where it was held that such a suit may be of a twofold character, partly in rem and partly in personam; and that the court may enforce the contract either by operating upon the person to compel a conveyance or may pass the title of...