TeNNaxt's Heirs v. Fretts El Al.
| Decision Date | 11 June 1910 |
| Citation | 67 W.Va. 569 |
| Court | West Virginia Supreme Court |
| Parties | TeNNaxt's Heirs v. Fretts el al. |
Equity has jurisdiction, at the suit of an owner of land who is in possession thereof under a good legal title, to remove a cloud from his title by a decree cancelling and expunging from the records of the county in which the land is situate, a void deed, or writing constituting a cloud upon, or menace to, his title.
The power of a court of equity to grant relief, in such case, is independent of any statute conferring jurisdiction, and rests on general equity principles and practice.
A suit to remove cloud and quiet title is local in its nature, and the jurisdiction of the court is determined by the situs of the land.
The decree for relief in such suit operates generally, if not always, in rem, and need not be in personam.
The statute, (sections 11, 12 and 13, ch. 124, Code 1906) providing for service of process on a non-resident by publication, or by personal service out of the state, can not authorize the rendition of a personal judgment, or decree, against a non-resident so served; but it does authorize any court, whether of law or of equity, to pronounce a judgment or decree binding in rem, in any case in which such court would otherwise be competent to do so if the defendant were personally served within the state.
Equity may, upon service of process on a non-resident by publication, remove cloud from title to land within its jurisdiction by a decree, binding only in rem.
Appeal from Circuit Court, Monongalia County.
Bill by the heirs of Peter Tennant against A. E. Fretts and others. Decree for complainants, and the mentioned defendant appeals.
Affirmed.
W. G. Bennett and Goodwin & Beay, for appellant. Terence D. Stewart and Charles E. Hogg, for appellees.
This is an appeal by A. E. Fretts from a decree of the circuit court of Monongalia county, made on the 19th of May, 1908, granting relief to plaintiffs upon a bill to remove cloud from title to land.
The following are the facts: On May 2, 1900, Peter Tennant executed to A. E. Fretts a writing under seal, which plaintiffs call an option, but which defendants insist is a contract of sale, agreeing to sell to him the "Pittsburg or River vein of coal"' underlying 163 acres of land in Monongalia county at $25 per acre. This writing was signed by both Tennant and Fretts, but was not acknowledged by Tennant. On the 4th of May, 1900, Fretts acknowledged it before a notary public in Pennsylvania, and on the same day, by writing indorsed on the back of the instrument, assigned his interest therein to Wm. Allison of Uniontown, Pennsylvania. He acknowledged this assignment also before a notary public in Pennsylvania. On the 22d of May, 1900, both the original contract and the assignment were recorded in Monongalia county, West Virginia. Nothing was ever paid to Tennant on the contract, except the one dollar consideration recited in it. Peter Tennant died in August 1904. On the 3d of November, 1905, his heirs sold the same vein of coal to Smith Hood, Jr., and Homer C. Price, for $95 per acre, to be paid, one third upon approval of title and acceptance of deed, and the balance in one and two years from acceptance of deed. Hood and Price discovered the Fretts contract on record, and refused to make payment until the rights of Fretts and Allison in the coal was determined. Thereupon the heirs of Peter Tennant brought this suit, praying to have the Fretts contract cancelled as constituting a cloud upon their title. Fretts and Allison are both residents of Pennsylvania, and were both personally served with original process in that state. Allison did not appear; but Fretts appeared by counsel and demurred, answered and filed a cross bill praying for specific execution of the contract.
The first question presented is one of jurisdiction. Counsel for Fretts insist that the court is without jurisdiction to grant relief upon personal service of process upon defendants in Pennsylvania, which has no more effect than an order of publication, published in a newspaper. This question has never before been presented to this Court for adjudication. If relief in such case can not be decreed it might often happen that a party would be without remedy. It is not within the sovereign power of a state to give extra-territorial effect to the decrees and processes of its courts, nor is there any means by which a resident of one state can be compelled to submit himself to the civil jurisdiction of the courts of another. Consequently, it follows that, unless the circuit court of Monongalia county had jurisdiction to grant relief by means of an in rem decree, plaintiffs are practically remediless. The courts of Pennsylvania can not give them relief, because a decree of the court of that state could not affect title to land in this state. Wilson v. Braden, 48 W. Va. 196; Poindexter v. Burnwell, 82 Va. 507; Gibson v. Burgess, 82 Va. 650; Vaught v. Meador, 99 Va. 569; Cooley v. Scarlet, 38 Ill. 316; Fall v. Eastin, 215 U. S. 1. The relief in this case must come through the direct operation of the decree upon the subject matter, or not at all. It is not a case where the relief depends upon an act which a court of equity may compel a defendant to perform, such for instance as the execution of a deed in completion of a contract, or the surrender of title to land acquired in violation of trust or by some species of mala fides. In cases of that character the court having jurisdiction of the person of defendant, may grant relief by compelling the defendant to perform the act essential to accomplish it. The decree in such cases would be purely in personam, and while they could not directly affect real estate in another state, yet the relief could be obtained through the act of the party, even to the extent of conveying land in another state. In such case it is the act of the party that affects the land, not the court's decree. Waits v. Massie, 6 Cranch 148; Guerrant v. Fowler, 1 H. & M. 6; Farley v. Sliippen, Wythe (Va.) 254; Dickinson v. Hoomes, 8 Grat. 353; Wilson v. Braden, 48 W. Va. 196; W. U. Tel. Co. v. Western & Atl. R. R. Co., 8 Baxter (Tenn.) 54; Mullen v. hows, 94 IT. S. 444; Wood v. Warner, 15 N". J. Eq. 81. But in the present case the suit is to cancel, and expunge from the records of Monongalia county, a writing which constitutes a cloud upon plaintiffs' title to land in this state, and unless the decree of the West Virginia court can operate directly upon the subject matter, in other words unless the court can pronounce an in rem decree, plaintiffs are without means of relief. They are in possession of the land and have the legal title; there is nothing that a Pennsylvania court can compel defendants to do that will afford them relief. But counsel for appellant insist that a court of equity can not pronounce an in rem decree in the absence of a statute authorizing it to do so, and that we have no such statute. We must admit that there is no statute conferring jurisdiction on courts of equity to make an in rem decree in suits to quiet title, and the action of the lower court must be sustained, if sustained at all, upon principles of general equity practice. But can it be possible that a court of equity is powerless to grant relief by way of cancelling a recorded writing which affects title to land within its jurisdiction, without it can obtain jurisdiction of the defendant also? Is this the state of our law? Does equity never act except upon the person? Is a statute necessary to give equity jurisdiction to quiet title where it can not get jurisdiction of the person of defendant? We do not think so. Equity has exercised jurisdiction to grant such relief, independent of statute, both in England and in this countiw, for more than a century. Hayward v. Dimsdale, 17 Vez. 111; Grover v. Hugell, 3 Russ (Eng. Ch.) 428; Ward v. Ward, Hayw. (N. C.) 403 Petit v. Shepherd, 5 Paige 493; Apthorp v. Comstock, 2 Paige 482; Shattuck v. Carson, 2 Cal. 588; Norton v. Beaver, 5 Ohio 178; Groves v. Webber, 72 Ill 606; O'Hare v. Downing, 130 Mass. 16; Ambler v. Leach, 15 W. Va. 677; Waldron v. Harvey, 54 W. Va. 608; Smith v. O'Keefee, 43 W. Va. 172. This power is inherent in courts of equity. It needs no statute to confer jurisdiction on courts of equity to quiet title, any more than to set aside a fraudulent conveyance or specifically enforce a contract for sale of land. It was the rigid rules of the common law, and strict adherence to former decisions, simply as precedents, that made courts of equity necessary, and ever since their formation it has been the boast of the chancellor that there is no right which has not a corresponding remedy. 1 Pom. Eq., section 108. One of the principle grounds of original equity jurisdiction rests on the fact that courts of law are not always adequate to afford the relief, and in any case where, according to the principles of natural justice, there is a right to be protected, or enforced, and the law has not provided an adequate remedy, equity takes jurisdiction. Bowyer v. Creigh, 3 Eand. 25. We can not say that equity is impotent in the present case to grant relief, simply because defendants are beyond the jurisdiction of the court and can not be compelled to obey its process. Equity can remove a cloud from title to land within the court's jurisdiction without having before it the person of defendant. It has power to make a decree which may operate upon the subject matter of the suit, notwithstanding such a decree is, in its nature, in rem, It would indeed be a deplorable condition if...
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