Wimer v. Wimer , 82 Va. 890 ( 1886 )

Hinton, J.

delivered the opinion of the court.

The question in this case is one of importance, but of little intrinsic difficulty. It is this: Has a court in Virginia, when the defendants have appeared and answered, jurisdiction to partition lands, the maior part of which lies within another State?

Now, it is a fundamental maxim of international jurisprudence that every State or nation possesses an exclusive sovereignty and jurisdiction within its own territory, and the “direct consequence of this j;ule is,” says a learned author, “that the laws of every State affect and bind directly all property, whether real or personal, within its territory.” Story’s Conflict of Laws, 5, 18. Another consequence of this maxim is, that no State can, by its laws, and no court, which is but a creature of the State, can, by its judgments or decrees, directly bind or affect property beyond the limits of that State; and hence it is axiomatic that no writ of sequestration, or execution, or any order, judgment or decree of a foreign court, can be directly enforced against real estate situate without the limits of the foreign State.

Id. section 20, “such,” says Chief Justice Parker, in Blanchard V. Russell, 13 Mass. 4, “is the necessary result of the independence of distinct sovereignties, and it is absolutely incompatible with the equality and exclusiveness of the sovereignty of different States or nations that any one nation should be at liberty to exercise dominion over property within the territory of another State. But whilst j this is true, it is • undoubtedly well settled that in cases of fraud, trust or contract, courts of equity will, whenever jurisdiction over the parties has been acquired, administer full relief without regard to the nature or situation of the property isi which the controversy had its origin, and even where the rfelief sought consists in a decree for the conveyance of prope/rty which lies beyond the control of the court, provided it can/be reached by the exercise of its powers over the person, and (the relief asked is of such a nature as the court is capable of administering.” Penn v. Lord Baltimore and notes, 2 Lead. Cas. Eq. 1806, et seq.; Farley v. Shippen, Wythie’s R. 254; 2 Story’s Eq., sec. 1290, et seq.; Dickinson v. Hoomes, 8 Gratt. 353; Barger v. Buckland, 28 Gratt. 862; Poindexter v. Burwell, ante page 507. But even as to these cases it mm-t be borne in mind', that the decrees of the foreign comí, do not directly affect fjhe land, but operate upon the person of the defendant, and compel him to execute the conveyance, and it is the conveyance which has the effect, and not the' decree. Davis v. Headley, 7 C. E. Green. 115; 4 Min. Inst., pt. 2d, page 1201. If, however, the relief asked cannot be administered by \ a decree in persomam, without going further and acting upon / the land, the comrt will refuse to entertain the bill. As this4 court said in a case which has been often quoted: “The dis-V tinction is clearljy this, that where the decree is to affect the \ lands directly, así in the case of a suit brought at this court, to J divide lands in /another State, there the court would not have J jurisdiction, because the process could not be effectual. * * * But where the/ decree is to affect only the persons of the defendants, in ordter to a complete execution of it, if the plaintiff succeed, * / * * it is clearly held to be the settled law of the court, tinat jurisdiction thereof may be entertained.” Guerrant v. Fowler, 1 Hen. & Mun. 5; Morris v. Remington, 1 Parson’s Eq. 387; Westlake’s Private Internat. Law, page 58.

Now, tested by these principles, it is perfectly manifest that a court of chancery in Virginia has no jurisdiction to decree a partition of lands in another State, and this, for the plain reason before given that the right to transfer, partition and change real estate, belongs exclusively to Uhe State within whose territory it is situate. In order to niavke a partition the teourt must iiwadejiyjits officers the soil, of a\nother State, and divide up and allot its lands to suit the yiWs of a Jbreign_ jurisdiction. This cannot be done. Carterel v. Petty, 2 Swant. 323, note; Roberdeau v. Rous, 1 Atk., 543; Poindexter v. Burwell, supra; 2 Story’s Eq., sec. 1296, et seq.; 4 Min. Inst. 1201.

For these reasons the decree of the circuit colirt of Highland county must be reversed, and the bill be dismissed.

. / Decree reversed.