Poindexter v. Burwell , 1886 Va. LEXIS 65 ( 1886 )

Richardson, J.

(after stating the case), delivered the opinion of the court.

The appellants assign several errors, of which the first is, that the chancery court overruled the demurrer to the bill and amended bill. As a ground of demurrer, they say that the chancery court of the city of Richmond, Virginia, did not have jurisdiction to hear and determine the case presented by the bill, because the land in controversy is situated in the State of Texas.

The question of jurisdiction may always be raised by demurrer, and though no objection has been so taken, the court will dismiss the bill at the hearing if it does not state a case proper for relief. Green & Suttle v. Massie, 21 Gratt. 356; Salamone v. Keiley, 80 Va. 86. And however raised, it is always the first question to be decided by this court in the consideration of a case brought before it for review. /The well settled general rule is, that the court of one State has no jurisdiction tn make a decree which will directly affect either the legal or equitable title to land situated in another State. The doctrine is, that if the person to do the act decreed is within the jurisdiction of the court, and the act may be done without the exercise of any authority operating territorially within the foreign jurisdiction, the court may act in personam, and oblige the party to convey, or otherwise to comply with its decree. But it is not competent to the court to decree touching a foreign subject, when the act to be done can be accomplished and perfected only by an authority operating territorially/ Thus a conveyance may be decreed of lands abroad, if the defendant is within the jurisdiction of the court, but not a partition of lands, as between joint tenants, tenants in common or co-parceners. Penn v. Lord Baltimore, 1 Ves. Sen. 444, and notes thereon; 2 L. C. in Eq. pp. 1806 to 1832 inclusive; Massie v. Watts, 6 Cranch, 148; Farley v. Shippen, Wythe’s R. 135; Guerrant v. Fowler and Harris, 1 H. & M. 5; Dickinson v. Hoomes, 8 Gratt. 353; 4 Minor’s Insts. 1201.

And if the courts of this State cannot make partition of lands lying in another State, although the parties live here, as was said by Chancellor Taylor in Guerrant v. Fowler & Harris, and as is fully sustained by the other authorities cited, supra, “because the process of the courts of this State could not be effectual beyond its limits,” and because the act to be done (the division of the land), could be accomplished only by an authority operating territorially, then it follows, a fortiori, that the courts of this State cannot decree a sale of lands lying in another State. Barger v. Buckland, 28 Gratt. 850, may be taken, at first glance, as an exception to the rule that lex loci rei sitae governs as to the sale as well as to the partition of land. But really that case constitutes such an exception as at once illustrates and proves the rule. That was the case of a deed of trust executed to secure a debt, on a tract of land situated in two counties, both then in Virginia, but one of which after-wards became part of West Virginia, the other remaining in Virginia. Upon default of payment,-there being no trustee to execute the contract of the parties to sell the land and pay the debt, under the circumstances the court, in order to perform the contract of the parties and to fulfill its own maxim, that “a trust shall not fail for want of a trustee,” decreed that unless the grantor should pay the debt within a prescribed period, then certain named persons should execute the trust by selling the land and applying the proceeds in payment of the debt. Such was the agreement of the parties, and to ■ it was applicable that most elementary principle of law relative to contracts, viz: modus et comientio vincunt legem.

Mr. Borer, in his work on Judicial Sales, sec. 39, says: “Lands lying in one State cannot be reached or sold under an order, license, or decree of a court of another and different State. The jurisdiction is local. The lex loci rei sitae governs.” For this proposition that author cites man}' high authorities; to which may be added the decision of the Supreme Court of Kentucky in the case of Snead v. Ewing, 5 J. J. Marshall, 460; and the decision of the Supreme Court of New York in Hanly v. James, 7 Paige Chy. 213; and of the Supreme Court of the United States, in McGoon v. Scales, 9 Wall 23.

Yet it is the settled law that a person may be decreed to convey lands lying in another State, because the decree operates only upon the person who is to make the conveyance and who is within the jurisdiction of the court. Hence, in a suit for specific performance against a defendant within the jurisdiction and duly served with process, it is no defence that the lands to be affected by the decree are in another State or country. See White and Tudor’s notes to Penn v. Lord Baltimore, 2 Lead. Cas. in Eq., 1823, et seq., and authorities there cited.

It is useless to spend more time in defining the law of this case, which is well settled. The difficulty here is in determining the true meaning and effect of the agreement of July 13, 1877, and the extent to which its enforcement would be incompatible with the rule regulating the jurisdiction of the local court over persons within and lands without the State. In order to arrive at its proper construction on the pivotal point touching the jurisdiction of the court below, it is necessary to analyze it.

It is plain that at its date, and at the date of the judgment, Alfred Poindexter owned no interest in said Texas lands, directly or indirectly, in law or in equity, so far as the record shows. It seems equally clear that the trustee, Charles Poindexter, under the trust deed of March 7, 1874, had no authority, as such trustee, to make the agreement to pay the amount of the said judgment out of the proceeds of the sale of the Texas lands, or otherwise to bind the interests of his cestuis que trust to pay the same. He was authorized to sell all or any of the property, and to raise money by mortgage or otherwise on the property, in order to provide the annuity for Mrs. Sarah A. Poindexter, and to pay off existing liens created by the several devisees on their individual interests, but not to pay off clebts created by a devisee who had parted with his entire interest, as Alfred Poindexter had done, not only before the agreement was made, but before the judgment was rendered. Yet Chas. Poindexter himself owned one-sixth of said Texas lands. He had the right, of course, to bind himself to pay to Burwell the amount of said judgment out of and to the extent of one-sixth of the proceeds of the sale of said lands. The language of the agreement does not point distinctly to his own one-sixth, but it is proper to give it that construction in order that effect be given to the instrument, and justice be done, on the principle of ut res magis valeat quarn per eat. Such an agreement does bind him personally, and is a charge upon his own undivided one-sixth part of the Texas lands. He has the option to sell said sixth, and apply its proceeds to the judgment, so far as necessary. If said proceeds do not suffice to pay the judgment and costs, Burwell can demand no more of Chas. Poindexter— who, however, must either sell and apply the proceeds, so far as requisite, or he must pay. the judgment out of his pocket. .And he must evidently sell or pay within a reasonable time. If he does not sell or pay within a reasonable period, then the chancery court, having jurisdiction over his person, may compel. him to convey his said one undivided sixth part of the Texas lands to the complainant below. There is no jurisdiction in the chancery court to decree the sale of said one-sixth,. nor to set it apart from the remaining five-sixths by partition. But there is jurisdiction to pronounce personal decree against Charles Poindexter for the amount of said judgment and costs, to be paid within a prescribed period, and in the event of its non-payment, directing that he shall convey his said undivided one-sixth part of said Texas lands to said Burwell. There could be no hardship in such a decree. It gives Charles Poindexter the option to convey the land and keep the money, or to keep the land and pay the money. In view of his agreement, he has no just claim to keep both. Applying these, principles, then, to the agreement as thus construed, the demurrer seems to have been properly overruled. The case made by the bill, with the prayer for general relief, was a case proper for the jurisdiction of the court below, although that court could not rightfully afford all the relief that was asked for; nor, in fact, all that it decreed.

It is true, the agreement, as asserted in the bill, and as held by the court below, as being intended to bind the interests of the other devisees besides Charles, was ultra vires, and beyond his power to make; but as it is alternatively set forth in the bill, and as it has herein been construed—that is, as binding only his own undivided one-sixth interest in the Texas lands, that agreement does entitle the complainant below to some relief in a court of equity; yet, certainly, not to the relief decreed him by the court below in the decree complained of here. Therefore, the court is clearly of opinion that the said decree is erroneous. The court below not only exceeded its jurisdiction by directing sale to be made by its own officers of land lying outside this State, but also in ordering the sale of lands belonging to persons who are not at all bound by the agreement sued on by the complainant.

The decree must, therefore, be reversed, and, without con- ' sidering other assignments of error, the cause must be remanded to the chancery court of the city of Richmond for further proceedings to be had therein in conformity with the views expressed in this opinion.

Decree reversed.