83 W. Va. 752 | W. Va. | 1919
From a decree of the circuit court of Hancock county denying relief and dismissing plaintiff’s bill without prejudice, she has appealed.
The suit is by the vendee of land in Hancock county for specific performance of the written contraét of sale. The bill avers payment in full of the consideration for the land and that defendant refuses to make her a deed conveying said land according to the terms of the agreement, although often requested to do so, and prays that he may be required by a decree of the court to execute and deliver to her such deed or, upon his failure to do so, that a special commissioner be appointed with power to execute and deliver to her .a good and lawful conveyance.
The defendant is a non-resident and made no appearance, but was proceeded against by order of publication according to sections 11, 12 and 13, chapter 124 of the Code.
The question presented is, has the court jurisdiction and
In view of this statute the court had the power to appoint
The question here presented was decided in the case of Tennant’s Heirs v. Fretts, 67 W. Va. 569, wherein we held that a court of equity, having jurisdiction over the land, -could decree against non-residents on order of publication cancellation of a deed constituting a cloud upon plaintiff’s title. That a court having jurisdiction of the person of a defendant may compel performance of a contract for the sale of land situate outside of its jurisdiction, by a decree operating in personam, does not militate against the right of another court hawing jurisdiction only of the subject matter to give similar relief, in a proper case, which operates only in rem.
"A suit for specific performance by a vendee of land within the jurisdiction against a vendor out of the jurisdiction is, by the weight of authority, sufficiently a proceeding ■in rem to validate a decree founded on service of process by publication, and the passing of title by the' decree or by an •officer appointed by the court.” 36 Cyc. 772. The following cases are in point and support the text: Rourke v. McLaughlin, 38 Calif. 196; Loaize v. Superior Court for San Francisco, 85 Calif. 11, 9 L. R. A. 376; Felch v. Hooper, 119 Mass. 52; Burrall v. Eames, 5 Wis. 260; Matteson v. Scofield, 27 Wis. 671; Hollander v. Central Metal Co., 109 Md. 131; Single v. Scott Paper M’f’g. Co., 55 Fed. 553; Epperly v. Ferguson, (Iowa), 91 N. W. 816; Boswell’s Lessee v. Otis, 9 How. (U. S.) 336; and 20 Encyc. Pl. & Pr. 409.
The decree is reversed and the cause will be remanded for 'further proceedings therein to be had according to the prin•ciples herein announced and further according to- the rules and principles governing eourts of equity.
Reversed and remanded.