Vick v. Flournoy, 147 N.C. 209 (1908)

March 25, 1908 · Supreme Court of North Carolina
147 N.C. 209

JOHN B. VICK, admr., v. W. S. FLOURNOY et al.

(Filed 25 March, 1908).

1. State Courts — Jurisdiction—Nonresident Defendants — Quasi in Rem.

The courts of this State have jurisdiction of the persons of nonresident defendants to the extent required in proceedings in rem or quasi in rem, when personal service is made by complying with the requirements of Revisal, sec. 448, and the property is situated here.

2. State Courts — Jurisdiction — Nonresident Defendants — Locus in Quo — Situs.

A motion, by special appearance of nonresident defendants, to dismiss the action for want of jurisdiction of the person will not be granted in a suit to redeem lands and to enforce a contract solely in respect of the same, when the locus in quo is situated within the State and personal service was made in compliance with Revisal, sec. 448.

*210S. Service — Summons—Nonresident Defendant — Seal of Clerk — Irregularity.

A summons issued without the seal of the Olerk of the Court, personally served upon nonresident defendants (Revisal, sec. 448), is an irregularity.

4. Service — Summons—Nonresident Defendant — Seal of Clerk — Irregularity Cured.

Objection made to the summons for that it was issued under Revisal, sec. 448, without the seal of the Clerk of the Court, to nonresident defendants, cannot be sustained when it appears that defendants have been actually notified of the time and place of the trial and informed of the nature and purpose of the action. Such defect may now be cured by the act of the Clerk in supplying the seal pursuant to order properly made in the cause.

AotioN beard on notice to dismiss, before Neal, J., at October Term, 1907, of EdgegoMbe.

Tbe facts upon wbicb said notice was. considered and determined were as follows:

On 1 August, 1884, John Vick, wbo was tbe owner of a tract of land in Edgecombe County, North Carolina, executed to O. 0. Earrar a mortgage on said land to secure a note for $1,474.34, wbicb be owed Earrar and wbicb was due and payable on 1 January, 1885. Tbis mortgage was put to record in tbe Edgecombe registry, in Book 59, at page 265.

On tbe . . . day of Hay, 1891, O. 0. Earrar died testate and G. B. Wrigbt qualified as bis executor.

On tbe . .. day of January, 1892, George B. Wrigbt, executor, etc., and John Vick made an agreement that tbe said Wrigbt, executor, should take possession of tbe land and work out tbe mortgage debt- then due, and, in pursuance of that agreement, Wrigbt, executor, did go into possession of tbe tract of land.

On tbe .... day of September, 1894, G. B. Wrigbt, executor, died, and E. S. Royster qualified as administrator d. b. n. c. i. a. of O. 0. Earrar.

On 11 April, 1898, John Vick, tbe owner of tbe land, died intestate, and on 23 August, 1907, bis son, John B. Vick, *211qualified as bis administrator. He was also tbe sole beir at law of tbe decedent.

In pursuance of tbe agreement by wbicb Wrigbt went into possession of tbe land, and after bis death, tbe succeeding administrator, E. S. Royster, remained in possession of tbe same till 14 April, 1898, receiving tbe rents and profits therefrom.

On 14 April, 1898, tbe land was allotted to Annie M. Par-rar as beir at law of O. O. Parrar in tbe division of bis lands among bis be'irs at law, and soon thereafter tbe said Annie M. Farrar was married to tbe defendant W. S. Flournoy.

Tbe said Annie M. Flournoy, from tbe time tbe land was allotted to her in tbe division of her father’s lands among his heirs at law, to-wit, 14 April, 1898, remained in possession of tbe same, receiving tbe rents and profits therefrom, till November, 1898, when, by regular proceedings begun by Mrs. Mary Vick (John Vick’s widow) against Annie M. Flournoy and John B. Vick (John Vick’s beir at law), dower was allotted in tbe tract of land to Mrs. Mary Vick. Tbe boundaries of tbe dower tract are specifically set out in tbe complaint, and the proceedings are duly recorded in tbe records of Edge-combe County.

After her dower was allotted, in November, 1898, Mary Vick, tbe widow of John Vick, went into possession of tbe dower part of said land and held tbe same, receiving tbe rents and profits, till 30 August, 1905, when she died.

F. S. Royster, tbe administrator d. b. n. c. t. a. of O. 0. Farrar, and Annie M. Flournoy and her husband, W. S. Flournoy, are all nonresidents of North Carolina, tbe former residing in Virginia and Mr. and Mrs. Flournoy in Missouri.

Various and sundry payments have from time to time been paid on tbe mortgage debt of John Vick prior to bis death, and these payments, with tbe rents and profits collected by Wrigbt and Royster, are sufficient to discharge tbe mortgage debt.

On 11 August, 1906¿ J. B. Vick brought bis suit in tbe *212Superior Court of Edgecombe County to redeem tbe said land and to enforce tbe contract made in respect of tbe same witb bim by tbe said Wright, executor, by virtue of wbicb be went into possession.

All tbe defendants being nonresidents, personal service could not be bad, and plaintiff made service in compliance witb provisions of subsection 8, section 218, Clark’s Code, or section 448 of tbe Revisal of 1905. Witb tbe requirements of tbis statute strict compliance was made.

Wben tbe case came on for bearing, tbe defendants, througb tbeir counsel, who bad entered special appearance, moved to dismiss tbe action, upon tbe ground that tbe court bad “no jurisdiction of tbe persons of tbe defendants, for want of proper service of tbe process.” Motion sustained, and tbe plaintiff appealed.

F. 8. Spruill, W. 0. Howard and J". B. Gasleill for plaintiff.

W. Stamps Iloiuard and G. M. T. Fountain for defendants.

Hoke, J.,

after stating tbe case: Tbe principal question presented in tbis appeal, on tbe right of plaintiff to proceed' as a matter of jurisdiction in tbe court, has been resolved against tbe defendants’ position in several decisions of tbis Court, notably tbe case of Bernhardt v. Brown, 118 N. C., 701 et seq. In that well-considered opinion tbe present Chief Justice points out tbe different methods by wbicb a court may acquire jurisdiction of a cause and of parties litigant, and, among other rulings, bolds as follows: “1. There are three modes for tbe ‘due service of process’ — (a) by actual service, or, in lieu thereof, acceptance or waiver by appearance; (b) by publication, in cases where it is authorized by law, in proceedings in rem, in wbicb case tbe court already has jurisdiction of tbe res, as to enforce some lien on or a partition of property in its control; (c) by publication of tbe summons, in cases authorized by law, in proceedings quasi in rem, in wbicb cases tbe court acquires jurisdiction by attaching property of *213a nonresident, absconding debtor, etc. A judgment obtained under process served by tbe two last-named methods has no personal efficiency, but acts only on the property. 2. A proceeding to enforce a mechanic’s lien being in rem, the service of summons by publication is authorized by section 218 (4) of The Oode, if defendant cannot after due diligence be found in the State, whether he is a nonresident or a resident. 3. In an action to enforce a mechanic’s lien and in all other proceedings in rem it is not necessary, as in proceedings quasi in rem, to acquire jurisdiction by actual seizure or attachment of the property, the mere bringing of the suit in which the claim is sought to be enforced being equivalent to seizure.” And, in Graham v. O’Bryan, 120 N. C., 463, the same Judge, for the Court, said: “A service by publication on a nonresident, in an action affecting property, is valid without attachment.” And again, in Long v. Insurance Co., 114 N. C., 465, and in other cases, it has been held that, while personal service of process in another State on a nonresident defendant is in lieu of service by publication and only available in cases where such service would be sufficient, yet, when the statute so provides and its terms are complied with, both methods are valid as to actions substantially in rem or quasi in rem, and where the relief sought is restricted to an application of the property seized by process in the cause or to a judgment affecting the title to property or some interest therein or lien thereon which had its situs within the limits of the court’s jurisdiction.

The cases are in accord with the decisions of the Supreme Court of the United States ón the same subject. Penoyer v. Neff, 95 U. S., 715; Arndt v. Griggs, 134 U. S., 316. In this last case, being an action to determine the interest of certain claimants to real estate situated within the State of Nebraska, and to quiet the title thereto, Mr. Justice Brewer, delivering the opinion of the Court, quotes with approval from the case of Beebe v. Doster, 36 Kan., 666, 675, 677 et seq., as *214follows: “Mortgage liens, mechanic’s liens, materialmen’s liens and other liens are foreclosed against nonresident defendants upon service by publication only. Lands of nonresident defendants are attached and sold to pay their debts; and, indeed, almost any kind of action may be instituted and maintained against nonresidents to the extent of any interest in property they may have in Kansas,-and the jurisdiction to hear and determine in this kind of cases may be obtained wholly and entirely by publication. Gillespie v. Thomas, 23 Kan., 138; Walkenhorst v. Lewis, 24 Kan., 420; Rowe v. Palmer, 29 Kan., 337; Venable v. Durch, 37 Kan., 515, 519. All the States,' by proper statutes, authorize actions against nonresidents and service of summons therein by publication only, or service in some other form no better; and, in the nature of things, such must be done in every jurisdiction, in order that full and complete justice may be done where some of the parties áre nonresidents.” And again, quoting from Boswell’s Lessee v. Otis, 9 How., 336, 348: “Turning now to the decisions of this Court: In Boswell’s Lessee v. Otis, 9 How., 336, 348, was presented a case of a bill for a specific performance and an accounting, and in which was a decree for specific performance and accounting, and an adjudication that the amount due on such accounting should operate as a judgment at law. Service was had by publication, the defendants being nonresidents. The validity of a sale under such judgment was in question. The Court held that portion of the decree and the sale made under it void, but, with reference to jurisdiction in a case for specific performance alone, made these observations: ‘Jurisdiction is acquired in one of two modes — first, as against the person of the defendant, by the service of process, or, secondly, by a procedure against the property of the defendant within the jurisdiction of the court. In the latter case the defendant is not personálly bound by the judgment beyond the property in question. And it is immaterial whether the proceeding *215against the property be by an attachment or bill in chancery. It must be substantially a proceeding in rem. A bill for the specific execution of a contract to convey real estate is not strictly a proceeding in rem in ordinary cases; but where such a procedure is authorized by statute on publication, without personal service or procéss, it is substantially of that character.’ And on the question before them the Court held: ‘(1) A State may provide by statute that the title to real estate within its limits shall he settled and determined by a suit in which the defendant, being a nonresident, is brought into court by publication. (2) The well-settled rules that an action to quiet title is a suit in equity, that equity acts upon the person, and that the person is not brought into court by service by publication alone, do not apply when a State has provided by statute for the adjudication of titles to real estate within its limits as^ against nonresidents, who are brought into court only by publication.’ ”

This is an action to establish plaintiff’s title to a tract of land4 situated within the jurisdiction of the court, and to relieve the same from any and all liens that the defendants may hold on same. The terms of the'statute providing for personal service beyond the State have been duly complied with. -Revisal, sec. 448. And a correct application of the principles announced in the foregoing decisions clearly determines that, if the facts ,are established as alleged, the court has jurisdiction to afford the relief demanded. There is no doubt of the correctness of the position urged upon us by the defendants’ counsel, that a valid judgment strictly in 'per-sonam cannot be had unless there has been a voluntary appearance by defendant or there has been service of process upon him within the jurisdiction of the court, and that personal service of process beyond the jurisdiction does not affect the principle or render such a judgment valid. But the relief sought here is not strictly in personam, and, while it may not be with exactness a proceeding in rem, the decisions all treat *216it as substantially in rem, and the question of the court’s jurisdiction comes deafly within the principles we hold to be controlling, and the facts bring the ease within the express terms of our statute providing for service by publication. Revisal, sec. 442. Such service may be had whenever defendant is a proper party relating to real property, and (subsection 3) “where he is not a resident of this State, but has property therein and the court has jurisdiction of the subject of the action”; (subsection 4) “where the subject of the action is real or personal property in this State and the defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding the defendant from any lien or interest therein.”

Objection is further made to the summons served for that same is not under seal of the court. We are inclined to the opinion that, under section 431, Revisal, a seal is required— certainly it is always desirable — when a summons is sent to a distance. Its presence may serve to assure the officer of another State that the proceedings are in good faith and under official sanction; but when it appears that the defendants have been actually notified, as in this case, not only of the time and place when they are required to appear, but also fully informed of the nature and purpose of the action, the objection that there is no seal to the summons is not of the substance. If the officer has acted without it, the absence of a seal is only an irregularity, which may be cured now by having the seal affixed, and the same may be said as to the form of the summons. It is sufficient to notify the parties, and is a substantial compliance with the statute, accompanied as it is by a sworn statement of the nature of the action. The power of amendment to the extent indicated has been upheld by express decision. Henderson v. Graham, 84 N. C., 496; Clark v. Hellen, 23 N. C., 421.

We hold that the court had acquired jurisdiction and there was error in dismissing the action.