43 La. Ann. 397 | La. | 1891
The opinion of the court was delivered by
Plaintiff institutes this action against the defendants for specific performance of an agreement of exchange, dated 14th day of October, 1874.
' The plaintiff bound herself to pay the mortgages and liens on the property transferred in exchange, and to pay defendants, on terms of credit, the sum of $10,000. In accordance with the agreement, she entered into possession on the-day of--, 1874, and is in possession since. She has made a deed transferring the property she bound herself to transfer in exchange.
The exchange never was consummated. The plaintiff alleges and has introduced evidence to prove that she has complied with the terms of the agreement, but that defendants have refused to comply.
In 1876 she placed them in default.
Decision is for plaintiff, from which the defendants appeal.
The defendants being absentees and not represented by agent,, a curator ad hoc was appointed to represent them, in pursuance of the provisions of Article 56 and other articles of the C. P., upon whom substituted service of citation was made.
The only defence he makes and the only issue presented, is the following:
That an absent defendant can not be brought into court by substitute service on a curator ad hoc, unless property is subjected to the control of the court by attachment.
Crops have been made and' gathered, and plaintiff has exercised unquestioned.all the rights of an owner these many years.
When called upon to execute a deed, defendants had promised to execute prior to March, 1876, or as soon thereafter as possible, they silently remained in default and made no attempt to comply with their obligation, and to carry out the agreement of exchange.
’ It is not to the interest of any one, nor the policy of thé law, that the title to property should remain unsettled and undetermined so great a length of time.
If there be any cause to oust the plaintiff, and to set aside and annul the agreement of exchange, it should have been pleaded long since. The agreement having remained without objection of record, we conclude that plaintiff has title bo the Audubon plantation, and
Contradictorily with a curator ad hoc we prefer to limit the effects of the'decree to that property, and to especially reserve to the defendants any rights they may have, and to the plaintiff any rights she may have to set np in defence to any action defendants may bring for the recovery of claims other than the title settled by this judgment.
The defendants are bound, by the judgment appealed from, in so far as relates to the property described therein, and for which they have received property in exchange.
We are led to make that limitation from the fact that the evidence does not enable us to determine the rights of the parties further than above stated. Thus limited, the action becomes one strictly in rem and the absentees were validly cited, through a curator ad hoc, to answer in the court within whose territorial jurisdiction is situated the property belonging to them.
The purpose of the action is to. enforce a real right against the property and to enforce a contract relating to it.
Attachment is not necessary to vest a court with jurisdiction.
In the leading case of Pennoyer vs. Neff, 95 U. S. 730, the Supreme Court announced the principle that substituted service of citation is effectual “ when the action is in the nature of a proceeding in rem."
A nón-resident can be brought into court by constructive service to perfect the 'title to real estate; otherwise a cloud upon it by a claim of a non-resident will never be removed, unless he chooses to consent to an adjudication. But no such imperfections attend the sovereignty of the State. It has control over property within its limits; and the condition of ownership of real estate therein, whether the owner be stranger or citizen, is subject to its rules concerning the holding, the transfer, liablility to obligations private or public, and the modes of establishing title thereto.
“ It can not bring the person of a non-resident within its limits— its powers goes not out beyond its borders, but it may determine the extent of his title to real estate within its limits, and for the purpose of such determination may provide any reasonable methods of importing notice.”
The constructive servicé contemplated by certain articles of the Code of Practice is ample when complied with to give reasonable notice to an absentee, and until the contrary appears the court must presume that the attorney appointed to represent the absentees as curator ad hoc has complied with the law’s requirements.
If the defendants were not absentees an action could compel them to deliver a deed in accordance with the terms of the-agreement of exchange.
To that extent it would refer strictly to the property.
By constructive service, being absentees, they are made to comply with their obligation so far as relates to the property.
Delivery of the property has been made, and other conditions of the contemplated exchange complied with.
It only remains to determine whether the plaintiff has title to the property. This can be decided contradictorily with a curator ad hoc; the sole object of the suit is property within the court’s jurisdiction.
In the case of Young vs. Upshur et. al., 42 An. 365, this court announced the governing principle to be that substituted service is legal and will bind defendants as to the property affected. “That a judgment pronounced thereon contradictorily with a curator ad hoc will bind the absentee defendant quoad the property in controversy.”
The object of the proceedings was to define the status of the property in order to enforce a contract respecting it. The court decided: “He can not be reached by personal service, and we therefore hold that he was validly cited through service on the curator, and will be concluded by the judgment. Duruty vs. Mussacchia, 42 An. 360.
The judgment appealed from is limited to the title to the property. This leaves the other issues not affecting the title, which may arise, undecided, and secures as to them to the parties, their rights.
Judgment is therefore affirmed.
