State ex rel. Barrett v. Dist. Court of Pine Cnty.

• Decision Date: 10 March 1905
• Citation: 102 N.W. 869,94 Minn. 370
• Parties: STATE ex rel. BARRETT et al. v. DISTRICT COURT OF PINE COUNTY et al.
• Court: Minnesota Supreme Court

94 Minn. 370

102 N.W. 869

STATE ex rel. BARRETT et al.

v.DISTRICT COURT OF PINE COUNTY et al.

Supreme Court of Minnesota.

March 10, 1905.

Application by the state, on the relation of John D. Barrett and Carrie Zimmerman, for writ of mandamus to the district court of the county of Pine and W. C. Williston, judge, and others. Granted.

Syllabus by the Court

An action to cancel a contract for the sale of land on the ground of fraud, and for the recovery of the purchase price paid by the vendee before the discovery of fraud, in which it does not appear that the vendee had title to the land, and in which no relief as to any real estate record is involved, is a transitory, not a local, action. O'Brien & Albrecht, for petitioners.

Robert C. Saunders, for respondents.

JAGGARD, J.

In this case, plaintiff commenced an action in the district court of Pine county against the relators, as defendants, to cancel, on the ground of fraudulent misrepresentations, a contract for the purchase of land in Pine county, and to recover the purchase money paid by plaintiff to defendants before the discovery of the fraud. The complaint contains no allegation that the vendors had any title to the land. Demand for change of venue from Pine county to Ramsey county, together with affidavit of residence of the relators at the time of commencement of the action in the latter, was duly served. Plaintiff noticed the cause for trial at the September general term of the district court in Pine county. Thereafter relators answered, and moved that the clerk be ordered to transmit all the files and records in the case to Ramsey county. The district court of Pine county denied this motion. Thereupon the relators petitioned this court for an alternative writ of mandamus, setting forth the pleadings and the facts aforesaid, so as to present the entire record here. Pursuant thereto, an alternative writ was granted by this court. The respondents appeared, and moved to quash and dismiss the same, on the grounds that the petition did not state facts sufficient to justify its issuance, or to entitle relators to the demands of their petition and writ. This practice properly presents on the merits the contentions of the respective parties. State v. District Court of Meeker County, 77 Minn. 302, 79 N. W. 960;State v. District Court of Chippewa County, 85 Minn. 283, 88 N. W. 755.

The question here presented is whether an action to cancel a contract for the sale of real estate on the ground of fraud, and for the recovery of the purchase price paid by the vendee before the discovery of the fraud, must be tried in the county where the land is situated, or in the county where the defendant, the vendee, resides, where it is not made to appear that the vendee had title to the land, and where no relief as to any real estate record is involved. The common law applied the maxim ‘debitus et contractus sunt nullius loci.’ Blackstone describes local actions as being those in which ‘possession of land is to be recovered, or damages for an actual trespass or waste, etc., affecting land’; and transitory actions as being those which are brought for ‘injuries that might have happened anywhere, as debt, detinue, slander, and the like.’ 2 Black. Com. 594. The recognition of the right of trial at place of residence was very greatly extended by the courts of equity. In overruling an objection to the jurisdiction of an English court in setting aside a rent charge on Irish lands on the ground of fraud, Chancellor King said: ‘This is surely only a jest put upon the jurisdiction of this court by the common lawyers; for when you are about to bind lands and grant a sequestration to execute a decree, then they readily tell you that the authority of this court is only to regulate a man's conscience, and ought not to affect the estate, but that this court must agere in personam only; and when, as in this case, you prosecute the person for fraud, they tell you that you must not intermeddle here, because the fraud, though committed here, concerns lands that lie in Ireland, which makes the jurisdiction local, and so wholly elude the jurisdiction of this court.’ Arglasse v. Muschamp, 1 Vern. 75. And see Penn v. Lord Baltimore, 1 Ves. 444, 2 W. & T. Lead. Cas. Eq. 1806; Brett's Lead. Cas. Eq. 254; Ewing v. Ewing, L. R. 9 App. Cas. 34. The same rule was early adopted and has been substantially enforced in the United States. In Massie v. Watts, 6 Cranch, 148, 160, 3 L. Ed. 181, Chief Justice Marshall said: ‘In a case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree.’ And see Watts v. Waddle, 31 U. S. 389, 8 L. Ed. 437.

The limitations imposed upon the jurisdiction of state courts by state boundaries have not affected the substance of the rule, but have merely restricted the extent of its application in fact, and the operation of decrees, to imposing personal obligation only, as distinguished from creating, transferring, or vesting title to lands outside the state. Lindley v. O'Reilly, 50 N. J. Law, 636, 15 Atl. 379,1 L. R. A. 79, 7 Am. St. Rep. 802. And see Spurr v. Scoville, 3 Cush. 578;Merrill v. Beckwith, 163 Mass. 503,40 N. E. 854;Hawkins v. Ireland, 64 Minn. 339, 67 N. W. 73,58 Am. St. Rep. 534. As to lands within the various states, the courts generally have recognized that, when a court of equity acts upon a matter over which it has jurisdiction, it is immaterial that real estate may be indirectly involved. A court of equity will afford proper relief to parties to contract in cases of equitable cognizance; the fact that the relief granted may incidentally concern land does not at all determine the subject-matter before the court. Accordingly, a suit to set aside a deed and obtain a specific enforcement of a contract has been held to be transitory. Hayes v. O'Brien, 149 Ill. 403, 37 N. E. 73,23 L. R. A. 555. And see Maduel v. Tuyes, 30 La. Ann. 1404; Copley v. Berry, 12 Rob. 79; Phillips v. Oil Co., 48 La. Ann. 404,19 South. 258; Lindley v. O'Reilly, supra; Spurr v. Scoville, supra; Merrill v. Beckwith, supra. And, where an action on covenant broken is founded on privity of contract between the parties, it is transitory; but where it is founded on privity of estate, it is local, and must be sued in the county where the land lies. Lienow v. Ellis, 6 Mass. 331;Clark v. Scudder, 72 Mass. 122;White v. Sanborn, 6 N. H. 220;Birney v. Haim, 2 Litt. 262.

Various statutes have affected this common-law rule. However different in terms, they substantially re-enact it, and incline rather to enlarge than to restrict the right of trial at residence. Under the New York statute, upon which the Minnesota section is based, Johnson, J., in holding that an action to rescind a contract for the purchase of land on the ground of fraud was transitory and not local, said: ‘The inquiry is, what is the cause of action? Is it an alleged fraud which vitiates the contract, or is it an alleged right or interest growing out of the contract, that is to be tried and determined? The two things are essentially and radically different; it...