Cocke v. Brewer

| Miss. | Apr 15, 1891

Campbell, C. J.,

delivered the opinion of the court.

The gravamen of the bill is that Cocke & Co., citizens of Tennessee, hold the notes which evidence the debt owed by Mrs. Murphy for the land, and which she will not .pay without a surrender of the notes, and which the complainant cannot produce because they are withheld from her by the non-residents mentioned, who refuse to give them up, without payment of some demand which the complainant is not willing to recognize. The real controversy is as to the right to the notes, and that is between the complainant and the non-resident holders of them. The adjudication of that controversy in favor of the complainant is a condition precedent to a decree for payment to her by the debtor. While the end sought is to enforce payment of the notes out of the' lands, an essential to the attainment of that end is to award the ownership of the notes to the complainant.

The. thing in dispute was not in Mississippi, but in Tennessee. The debtor was here, and the land on which the notes are charged by a deed of trust is . here, but the debt is where the creditor is, and that was Tennessee. Klein v. French, 57 Miss. 662" court="Miss." date_filed="1880-04-15" href="https://app.midpage.ai/document/klein-v-french-7985405?utm_source=webapp" opinion_id="7985405">57 Miss. 662 ; Speed v. Kelly, 59 Ib. 47.

In this condition of things the chancery court could not acquire jurisdiction of the non-resident defendants, by publication, so as to render a valid decree against them. Neither the person nor the res being in this state, its courts could acquire jurisdiction only by the appearance of a party. The-decree rendered upon proof of publication, without the appearance of the parties, was without jurisdiction, and must be reversed.

Reversed and remanded.