McLaughlin v. McCrory

• Decision Date: 13 February 1892
• Parties: MCLAUGHLIN v. MCCRORY
• Court: Arkansas Supreme Court

18 S.W. 762

55 Ark. 442

MCLAUGHLIN v. MCCRORY

Supreme Court of Arkansas

February 13, 1892

CERTIORARI to Woodruff Circuit Court in chancery, MATTHEW T SANDERS, Judge.

Petition dismissed.

J. C Hawthorne for petitioner.

1. The judgment is void for want of jurisdiction over the person of the petitioner. This was not brought for the recovery of land or any interest therein (Mansf. Dig., sec. 4994, sub-division 1), but to cancel title or remove a cloud, and is transitory, and the court must have jurisdiction of the person. 6 Cranch, 148; 18 How., 263; 42 Ark. 446; 4 Pet., 466; 9 Wall. 812; 95 U.S. 714; 6 Whart. (Pa.), 392. See also 47 Ark. 86.

2. The decree of a State court for the removal of a cloud upon title to land in the State rendered against a citizen of another State cited by publication only, as directed by local statutes, is no bar to an action by him in the United States courts to recover the land against the former plaintiff. 110 U.S. 151; 72 Iowa 245; 17 F. 873; 27 id., 355; 35 id., 86. Generally, if not universally, equity jurisdiction is exercised in personam and not in rem, and depends upon the control of the parties, and not upon the place where the land lies; and a bill to remove a cloud or cancel a deed for fraud is a proceeding in personam and not in rem; and, in the absence of express provisions of the statute, the proceeding in rem by publication is void. 3 Sandf. Chy., 185; 7 N. Y. Ch. (Co-op.), 818; 20 Tex. 334; 110 U.S. 151.

W. R. Coody for appellee.

The venue is local. Mansf. Dig., sec. 4994. Non-residents may be proceeded against by publication; and the courts act in rem. Ib., secs. 4989, 4992, 4993; Acts 1887, page 53; 42 Ark. 446; Mansf. Dig., sec. 3953; 38 Ark. 181.

OPINION

COCKRILL, C. J.

This is a petition to this court for a writ of certiorari presented by McLaughlin to quash a judgment against him, rendered by the Woodruff circuit court. McCrory was the judgment plaintiff. He filed his complaint against McLaughlin, alleging that the latter had obtained from him through fraud a deed to lands lying in Woodruff county, of which he, McCrory, was the owner.

The facts in relation to the fraud were specifically set forth. It being made to appear that McLaughlin was a non-resident of the State, he was summoned by warning order. He failed to appear; the court found that the allegations of the complaint were true; adjudged the cancellation of the deed which McCrory had executed, and that the title be revested in him. McLaughlin now seeks to quash that judgment, arguing that the court could act in personam only in cancelling his title, and that, as it did not have jurisdiction of his person, the judgment is void. To sustain that contention, he relies upon the case of Hart v. Sansom, 110 U.S. 151, 28 L.Ed. 101, 3 S.Ct. 580. The syllabus of that case is misleading. It is to the effect that "a decree of a State court for the removal of a cloud upon the title of land within the State, rendered against a citizen of another State, who had been cited by publication only, as directed by the local statutes, is no bar to an action" by the non-resident defendant to recover the land in ejectment from the plaintiff in the suit prosecuted upon service by publication.

The conclusion announced in the syllabus is correct only where there is an absence of legislation conferring power upon the courts where the lands lie to exercise jurisdiction upon citation by publication, as in the nature of a proceeding in rem. Anciently, courts of equity exercised jurisdiction exclusively over the person of the defendant, refusing to interfere with or act upon the corpus of his estate. Pickett v. Ferguson, 45 Ark. 177. It is not probable that any such court is now so confined in its jurisdiction. If, however, the court which enters the decree in a given case is authorized to act therein in personam only, it acquires no jurisdiction by publication to grant relief. That is well settled, and that is the full extent to which it can be said the authority of the decision goes in Hart v. Sansom.

Judge Brewer reviews the cases upon this subject in Arndt v. Griggs, 134 U.S. 316, 33 L.Ed. 918, 10 S.Ct. 557, and announces for the court that the decisions of the Supreme Court of the United States coincide with the decisions of the various State courts in maintaining that a State possesses the power "to provide for the adjudication of titles to real estate within its limits as against non-residents who are brought into court only by publication," even though a court of equity where the defendant is found might be competent to force him to execute a release of his claim of title. That is the settled law. If it be conceded then that a suit to set aside a deed upon the ground that it was obtained by fraud is one that a court of equity could entertain by acting upon the person of the party who committed the fraud without regard to the situs of the land, it is only necessary to ascertain whether the Woodruff circuit court has been empowered to divest title by force of its decree upon citation by publication.

Since 1837 the following provisions, found in Mansfield's Digest, have been the law of this State: "In all cases where the court may decree the conveyance of real estate, or the delivery of personal property, they (it) may, by decree pass the title of such property without any act to be done on the part of the defendant, where it shall be proper, and may issue a writ of possession, if necessary, to put the party in possession of such real or personal property, or may proceed by attachment or sequestration." Sec. 3953. "When an unconditional decree shall be made for a conveyance, release or acquittance, and the party required to execute the same shall not comply therewith, the decree shall be considered and taken to have the same operation and effect, and be as available as if the conveyance,...