This is an appeal from a dismissal for lack of proper venue of a diversity case which presents somewhat arcane and technical issues involving the characterization of actions as local or transitory for venue purposes. For the reasons given below, we reverse and remand to the district court for further proceedings.
I
Defendant-appellee, Safeway Stores, Inc. (“Safeway”), undertook in 1961 a sale and leaseback arrangement of seven properties with a predéeessor in interest of the plaintiff-appellant, Raphael J. Musicus, Inc.
The plaintiff sued for several breaches of these lease agreements involving failure to provide liability insurance and sufficient fire insurance, failure to maintain the premises in good repair, adverse alteration of the premises, assignment of the leases beyond their original term or renewal term then in effect without the lessor’s approval and failure to pay rent. In addition, plaintiff alleged that Safeway made fraudulent misrepresentations, on which the plaintiff relied, about Safeway’s intent to perform material aspects of the sale and leaseback agreement. The relief which Musicus requests includes the voiding of the renewal options of both leases and the voiding of the respective subleases, an injunction to restrain a threatened breach of the Lincoln lease through assignment, compensatory and special damages, treble damages for wilful trespass and unlawful detainer under applicable Nebraska and Montana statutes and exemplary and punitive damages on the fraud count. The damages sought for alleged trespass depend entirely on the determination of the parties’ respective rights under the leases and the renewal options.
The district court had dismissed Musicus’ complaint on two prior occasions — the first time because the claim was not yet ripe for adjudication and the second for lack of subject matter jurisdiction. On the third occasion, the district court dismissed the second amended complaint for improper venue after finding that there was subject matter jurisdiction. Safeway does not appeal from this determination of jurisdiction, and we note that the district court’s determination appears correct. 1
The dismissal for improper venue was based on the characterization of the action as local under the law of the forum, Illinois. After observing that Illinois courts have never decided whether an action to cancel or void a lease is transitory or local in nature, the district court relied primarily on the Illinois venue statute and on decisions of other state courts. The district court concluded that the plaintiff seeks essentially to recover possession of the properties, a form of relief which would fall within the terms of the Illinois venue statute. That statute provides that an action to recover possession of real estate “must be brought in the county in which the real estate or some part of it is situated.” Ill. Rev.Stat. ch. 110, ¶ 2-103 (1982). Although a court without venue would normally transfer the action to the district in which venue properly lies, the district court in this case dismissed the action because venue would only be proper as to each property in the respective district in which the property in question is located.
II
This suit involves allegations of breach of contract, fraud and trespass based on the interpretation of a lease. In order to determine where proper venue would lie in a case such as this one, we must first characterize the action as either local or transitory. Generally, local actions are those which directly affect real property,
The federal venue statute, 28 U.S.C. §§ 1391 and 1392, sets out the rules for determining where proper venue lies depending on whether the action is local or transitory. These rules fail, however, to define “local” and “transitory” actions. Thus, while a determination of proper venue is clearly a matter of federal law, it is unclear whether the federal statute should be interpreted by reference to general law, including the decisions of both state and federal courts, or by reference specifically to the law of the forum state, in this case Illinois. Issues involving real property are often resolved by reference to state law, and thus a strong argument for adopting the law of the forum can be made. 2
There is also, however, some authority that general law should be applied, as in
Pasos v. Pan American Airways, Inc.,
Ill
Proper venue is determined by the characterization of the action as either local or transitory — a determination which, in turn, depends on the type of relief sought. As noted,
supra
Part II, the federal statute, 28 U.S.C. §§ 1391-1401, does not define either a local or a transitory action. The traditional and well-established distinction, however, is the same as that between
in personam
and
in rem
jurisdiction.
See, e.g., Mostyn v. Fabrigas,
1 Cowp. 161, 98 Eng.Rep. 1021 (K.B.1774);
Little v. Chicago, St. Paul, Minneapolis & Omaha Railroad Co.,
This rule was explained in
Massie v. Watts,
Where the defendant ... is liable to the plaintiff, either in consequence of contract, or as trustee, or as the holder of a legal title acquired by any species of mala fides practiced on the plaintiff, the principles of equity give a court jurisdiction wherever the person may be found, and the circumstance, that a question of title may be involved in the inquiry, and may even constitute the essential point on which the case depends, does not seem sufficient to arrest that jurisdiction.
******
This court is of opinion that, in a case of fraud, or trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree.
These principles have been generally followed and apply even to suits for specific performance of contracts where the subject of the contract is real property except when the court’s decree would itself operate as a conveyance of the property.
See, e.g., Sax v. Sax,
Illinois courts have followed this same general rule in characterizing suits as either local or transitory for purposes of interpreting the state venue statute. In
Bevans v. Murray,
“Where the relief sought could be effected by acting directly upon the person of the defendant, the court of chancery has never hesitated to entertain the bill where the defendant is found within its jurisdiction, whether the subject matter of the controversy be within its control or not. Of this character are those cases where the courts have compelled specific performances of contracts for the conveyance of or relating to land which is situate beyond its jurisdiction, and in such case the court will compel a conveyance to be executed in such manner and form as may be prescribed by the laws ofthe country where the land is situate ____”
* * * * * *
“The decree in such cases settles the rights of the parties before the court with respect to some contract, conveyance, trust or fraudulent conduct, and by attachment or other coercive means compels the offending party to comply with the requirements of the decree or simply declares the transaction complained of void, and thereby removes an obstruction to the enforcement of his legal remedies.”
Federal law and Illinois law thus agree that a wide variety of types of actions which affect lands, from the conveyance of real estate to the enforcement of lease provisions, are nonetheless considered transitory actions requiring only
in personam
jurisdiction over the defendant. The determinative element in defining a transitory action is whether the type of relief requested is of a “personal” nature so that the court, in acting upon the person or personal property of the defendant which is within its control, need not act directly upon the lands involved. Rather, as the Illinois Supreme Court stated in
Bevans v. Murray,
The plaintiff's prayer for compensatory and special damages under Counts I and II (the two counts involving breach of contract) are clearly attempts to obtain a personal money judgment against the defendant. The prayer for compensatory, special, punitive and exemplary damages on the fraud count (Count III) is of a similar nature. The requests for treble damages under the Montana unlawful detainer statute and the Nebraska wilful trespass statute are apparently of a similar nature, but, because they may fall into a special exception, they will be treated separately.
The plaintiff has also requested that the renewal options of both leases and the alleged subleases entered into by the defendant be voided, and it seeks an injunction to restrain a threatened breach of the Lincoln, Nebraska lease through assignment.
The district court had characterized the plaintiff’s request for a voiding of the leases and of the renewal options as an action to recover possession of real estate. The plaintiff, however, has asked for various kinds of relief, including money damages and injunctive relief, but not including recovery of possession of the properties. The issue whether it may ultimately wish to attempt to recover possession of the properties is not now before us. It is not, therefore, for us to second-guess the plaintiff’s choice of remedy. The adjudication of the parties’ respective rights under the leases is the sole issue confronting us and, as our discussion of both general law and Illinois law demonstrates, such actions, even those concerning construction and enforcement of leases, are considered transitory.
We therefore conclude that the plaintiff’s action to recover various types of damages caused by the defendant’s alleged breaches of the two leases and its fraudulent misrepresentations and to adjudicate the respective rights of the parties under the leases would be characterized as transitory under both Illinois and federal law. The federal venue provisions of 28 U.S.C. § 1391(c) therefore apply, and venue is proper in the Northern District of Illinois.
Finally, we turn to the exception we have noted above involving the plaintiff’s attempt to recover treble damages under the Nebraska and Montana statutes. From the face of the complaint, it appears that the prayer for this relief is based upon alleged injuries to the plaintiff’s land caused by the defendant’s trespass, which would have occurred if the district court should void the options to renew and therefore the leases as well. Such an action for monetary damages for injury to land caused by trespass has been treated as an exception to the general rule favoring characterization as transitory actions which we have discussed. In this situation, the court in which the action is brought may be required to have in rem jurisdiction over the land affected, even though, if that court does not also have in personam jurisdiction over the defendant, the plaintiff is left without a remedy-
The rule governing this exception entered American jurisprudence from earlier English law in Livingston v. Jefferson, 15 Fed.Cas. 660, No. 8,411 (C.C.D.Va.1811), a decision authored by Chief Justice John Marshall riding circuit. That case involved a suit by a landowner in Louisiana against former President Jefferson for injuries caused to his land when a federal marshal, acting upon Jefferson’s order while president, ejected Livingston from his land. Justice Marshall acknowledged the well-settled rule that actions based in contract and tort, even if requiring the court to act upon the land, could be brought wherever the court had in personam jurisdiction over the defendant. He also recognized that adoption of the English rule which excepted actions based in trespass would often work an injustice upon the plaintiff by denying a remedy.
It is admitted, that on a contract respecting lands, an action is sustainable wherever the defendant may be found: yet, in such a ease, every difficulty may occur which presents itself in an action of tres-pass____ [Y]et these difficulties have not prevailed against the jurisdiction of the court. They have been countervailed, and more than countervailed by the opposing consideration, that if the action be disallowed, the injured partymay have a clear right without a remedy in a case where the person who has done the wrong, and who ought to make the compensation, is within the power of the court.
Id. at 664. Justice Marshall nevertheless held that Livingston’s action to recover damages for Jefferson’s alleged trespass was in rem and therefore could only be brought in Louisiana. 5
This exception involving actions based in trespass has been generally followed, although also generally criticized, in subsequent eases.
See, e.g., Ellenwood v. Marietta Chair Co.,
Illinois courts have apparently not directly addressed the issues raised by the
Livingston
doctrine. However, in
Alexander v. Tolleston Club of Chicago,
Venue is therefore proper in the Northern District of Illinois for the plaintiff to bring this suit based on breach of contract, fraud and injury to land arising from trespass. Although this action may have an indirect effect upon lands lying outside the jurisdiction of the district court, the action is transitory in nature and the court is required only to have in personam jurisdiction over the defendant. Because the venue provisions of the federal statute, 28 U.S.C. § 1391, are otherwise satisfied, venue in the court appealed from is proper. The dismissal of the action is reversed and the case is remanded for further proceedings not inconsistent with this opinion. Circuit Rule 18 shall apply to this case upon remand.
Notes
. Musicus has alleged in the second amended complaint damages in excess of the $10,000 jurisdictional amount. The first amended complaint was dismissed because the breaches, at the time the suit was filed, were either anticipatory or only technical and, hence, no amount of damages could be alleged or determined to the court’s satisfaction. In the current complaint, the plaintiff has alleged that the breaches by assignment were more than merely technical and so the jurisdictional requirement is satisfied. Musicus v. Safeway Stores, Inc., No. 82 C 2726, slip op. at 2-4 (N.D.Ill. Sept. 20, 1983).
. Some courts have cast this controversy in terms of the doctrine of
Erie Railroad Co. v. Tompkins,
. We note that the federal venue statute does not provide for the precise situation in this case if the action were to be characterized as local. Section 1392(b) concerns only the situation in which property is located in different districts in the same state but not that in which property is located in different states. In light of our holding below, however, we do not need to attempt to fill this gap in the federal venue provisions.
. In his first opinion in this case, Judge Marshall found that venue was proper saying that
as we read plaintiff’s responsive memorandum, it does not seek to have us adjudicate either party’s title or right of possession to the land in question. Rather, plaintiff seeks only a determination that defendant has breached its contractual obligations under the lease and must compensate plaintiff for its losses due to the breaches.
Musicus, Inc. v. Safeway Stores, Inc., No. 82 C 2726, slip op. at 1-2 (N.D.Ill. Dec. 21, 1982). Despite the changes in plaintiff’s complaint, this statement remains applicable to the complaint as it is currently phrased.
. In Mostyn v. Fabrigas, 1 Cowp. 161, 98 Eng. Rep. 1021 (K.B.1774), Lord Mansfield held that an action for trespass and false imprisonment, which had occurred in Minorca, was transitory and could be brought in England. In so doing, he equated local and transitory actions with, respectively, in rem and in personam jurisdiction and criticized the rule that actions alleging injury caused by trespass to land were to be characterized as local. However, in Doulson v. Matthews, 4 Term Rep. 503, 504, 98 Eng.Rep. 1143, 1144 (K.B.1792), Lord Kenyon held that an action for trespass to land in Canada could not be brought in England and thus refused to depart from the well-established English precedents, despite Lord Mansfield's dictum urging that such precedent be discarded. Chief Justice Marshall adopted the same course in Livingston v. Jefferson when he rejected Lord Mansfield’s reasoning, despite acknowledging its correctness, because he felt bound by English precedent.
However, the application of this rule is very different in the United States from its application in England. In England, there is service of process throughout the country and so a plaintiff is not denied an opportunity to prove a claim because of inability to achieve both personal jurisdiction and proper venue within the same county or district. Straight application of the doctrine in American jurisprudence can result in an injustice when, as in
Livingston v. Jefferson,
it prevents the plaintiff from suing the defendant altogether. The only actions which operation of the doctrine bars in England are those alleging trespass to lands in foreign countries, and one may well imagine that there are other sound reasons of policy for limiting the ability to bring such suits.
See also Little v. Chicago, St. Paul, Minneapolis & Omaha Railroad Co.,
. In
Ellenwood v. Marietta Chair Co.,