82 Va. 507 | Va. | 1886
(after stating the case), delivered the opinion of the court.
The appellants assign several errors, of which the first is, that the chancery court overruled the demurrer to the bill and amended bill. As a ground of demurrer, they say that the chancery court of the city of Richmond, Virginia, did not have jurisdiction to hear and determine the case presented by the bill, because the land in controversy is situated in the State of Texas.
The question of jurisdiction may always be raised by demurrer, and though no objection has been so taken, the court will dismiss the bill at the hearing if it does not state a case proper for relief. Green & Suttle v. Massie, 21 Gratt. 356; Salamone v. Keiley, 80 Va. 86. And however raised, it is always the first question to be decided by this court in the consideration of a case brought before it for review. /The well settled general rule is, that the court of one State has no jurisdiction tn
And if the courts of this State cannot make partition of lands lying in another State, although the parties live here, as was said by Chancellor Taylor in Guerrant v. Fowler & Harris, and as is fully sustained by the other authorities cited, supra, “because the process of the courts of this State could not be effectual beyond its limits,” and because the act to be done (the division of the land), could be accomplished only by an authority operating territorially, then it follows, a fortiori, that the courts of this State cannot decree a sale of lands lying in another State. Barger v. Buckland, 28 Gratt. 850, may be taken, at first glance, as an exception to the rule that lex loci rei sitae governs as to the sale as well as to the partition of land. But really that case constitutes such an exception as at once illustrates and proves the rule. That was the case of a deed of trust executed to secure a debt, on a tract of land situated
Mr. Borer, in his work on Judicial Sales, sec. 39, says: “Lands lying in one State cannot be reached or sold under an order, license, or decree of a court of another and different State. The jurisdiction is local. The lex loci rei sitae governs.” For this proposition that author cites man}' high authorities; to which may be added the decision of the Supreme Court of Kentucky in the case of Snead v. Ewing, 5 J. J. Marshall, 460; and the decision of the Supreme Court of New York in Hanly v. James, 7 Paige Chy. 213; and of the Supreme Court of the United States, in McGoon v. Scales, 9 Wall 23.
Yet it is the settled law that a person may be decreed to convey lands lying in another State, because the decree operates only upon the person who is to make the conveyance and who is within the jurisdiction of the court. Hence, in a suit for specific performance against a defendant within the jurisdiction and duly served with process, it is no defence that the lands to be affected by the decree are in another State or country. See White and Tudor’s notes to Penn v. Lord Baltimore, 2 Lead. Cas. in Eq., 1823, et seq., and authorities there cited.
It is useless to spend more time in defining the law of this
It is plain that at its date, and at the date of the judgment, Alfred Poindexter owned no interest in said Texas lands, directly or indirectly, in law or in equity, so far as the record shows. It seems equally clear that the trustee, Charles Poindexter, under the trust deed of March 7, 1874, had no authority, as such trustee, to make the agreement to pay the amount of the said judgment out of the proceeds of the sale of the Texas lands, or otherwise to bind the interests of his cestuis que trust to pay the same. He was authorized to sell all or any of the property, and to raise money by mortgage or otherwise on the property, in order to provide the annuity for Mrs. Sarah A. Poindexter, and to pay off existing liens created by the several devisees on their individual interests, but not to pay off clebts created by a devisee who had parted with his entire interest, as Alfred Poindexter had done, not only before the agreement was made, but before the judgment was rendered. Yet Chas. Poindexter himself owned one-sixth of said Texas lands. He had the right, of course, to bind himself to pay to Burwell the amount of said judgment out of and to the extent of one-sixth of the proceeds of the sale of said lands. The language of the agreement does not point distinctly to his own one-sixth, but it is proper to give it that construction in order that effect be given to the instrument, and justice be done, on the principle of ut res magis valeat quarn per eat. Such an agreement does bind him personally, and is a charge upon his own undivided
It is true, the agreement, as asserted in the bill, and as held by the court below, as being intended to bind the interests of the other devisees besides Charles, was ultra vires, and beyond his power to make; but as it is alternatively set forth in the bill, and as it has herein been construed—that is, as binding
The decree must, therefore, be reversed, and, without con- ' sidering other assignments of error, the cause must be remanded to the chancery court of the city of Richmond for further proceedings to be had therein in conformity with the views expressed in this opinion.
Decree reversed.