45 Ga. 74 | Ga. | 1872
This was a bill, brought by defendants in error, to compel the defendant, the present plaintiff in error, to deliver a house and lot in the city of Columbus to complainants, and for an account of the rents. The material facts are that one Peter Nolan, the father of Sarah McCauley, on. his marriage with her mother, entered into a marriage contract, whereby he settled the premises in dispute upon his intended wife and her issue. Sarah McCauley was the only issue. Nolan left the State some short time after his marriage, which was in 1848, and has never been heard of since. Shortly afterwards, his wife died, and John B. Stroupper, her brother-in-law, took out letters of guardianship for the child, then two years old. The letters were granted in November, 1851. Before Nolan left the State, he employed one W. B. Robinson, a mechanic, to put repairs upon the house to the amount of $331 75. Robinson recorded his mechanic’s lien, and sued it to judgment against Nolan, under the Act of December 22d, 1834,' made general by Act of December 28th, 1837. The trustee, under the marriage settlement, was not a party to the suit, nor does it appear that he authorized the repairs.
In March, 1851, the property was sold under the fi. fa. issued upon the judgment, and bought by John B. Strouppor, and the title made to him, individually, by the sheriff. Stroupper died in possession of the property, and his wife, the plaintiff in error, became administratrix, and has possession of the property.
Henry McCauley married Sarah Nolan, and the bill is
There are several assignments of error, but the only one relied on by’counsel for plaintiff in error, was the refusal of the Court to give the following charge: “ That the said judgment, in favor of Robinson, to enforce his mechanic’s lien, is a judgment in rem, and is conclusive upon everybody, and a sale of the property mentioned in said judgment, under the same, divested the title of the true owner, although such owner may have been a married woman or minor, and passed the title to Stroupper.” If the premise of the counsel for the defendant is true, the conclusion he draws would necessarily follow.
What is ajudgmen in rem “Ajudgment in rem founded on a proceeding, not as against the person, as such, but against the thing or subject-matter itself, whose state or condition is to be determined. It is a proceeding [i. e., the Judge means to say the proceeding in rem is) to determine the state or condition of the thing itself, and the judgment is a solemn declaration upon the status of the thing; and it ipso facto renders it what it declares it to be. The probate of a will is a familiar instance of a judgment in rem. The judgment is upon the thing itself; and when the proper steps required by law are taken, the judgment is conclusive upon all the world, and makes the instrument just what the judgment of the Court dedares it ought to be.” “ Proceedings in rem may be, and often are, upon personal chattels, directly declaring the right to them, in such cases. The proceeding is for the supposed violation, by the property (so to speak) of some public law or regulation, by which it is alleged that the title of the former owner has become divested. The property being seized, a proceeding is then instituted against it, upon an allegation stating the cause for which it has been forfeited; upon which public notice is given, in some prescribed form, to all persons to appear and contest the allegation: Woodruff vs. Taylor, 20 Vermont, 65.
Again: “A judgment of outlawry not only declares the party an outlaw, but renders him so, and is, therefore, a judgment in rem : ” Herman’s Law of Estoppel, chapter I., p. 110, et seq.
“Proceedings in attachment are in the nature of) but not strictly a proceeding in rem. A proceeding in rem is that in which the process is served on the thing itself; and the mere possession of the thing itself, by the service of the process and making proclamation, authorizes the Court to decide upon it, without notice to any individual whatever.” “ The proceedings in attachment will not, in any way, affect the status of the property as to other persons than the parties to the record, and those claiming under them: ” Herman’s Law of Estoppel, chapter I.: “Judgments in rem” page 110 to 129; Drake on Attachment, section 5; Marshall, Chief Justice, in Mankin vs. Chandlee, 2 Brockenbrough, 125; Megee vs. Berme, 39 Pennsylvania State Reports, 50. “ The limited proceedings in rem, before mentioned, (in attachment) are not based on any allegation that the right of property is to be determined between any other persons than the parties to the suit; no notice is sought to be given to any other persons, and the judgment being only as to the status of the property, as between the parties of record, it is as to all other persons a mere nulity:” Woodruff vs. Taylor, 20 Verm., 76. “A foreign attachment, under the law of Virginia, (and I apprehend the same is true under the law of Georgia,) is not a proceeding in rem. It is a suit by a plaintiff against a defendant, and a decree in such a case is conclusive evidence only against parties and privies. In every
This is not the only purpose of a proceeding in rem, as already stated. There are two classes of judgments in rem, 1st. Judgments upon the status of individuals; as in judgments of outlawry, divorce, appointment of guardians, administrators, etc. And, 2d, judgments had on proceedings against property without suit against the owner. And these last seem to be confined to Courts of Admiralty, as the former are, (with the exception of outlawry) to the Ecclesiastical Courts. Indeed, the general rule is, that Courts of common law do not proceed in rem: 1 Kent’s Com., (8th Ed.) 379;
Judge Story, and Mr. Green leaf, after him, say proceedings in attachment “ are also treated as in some sense proceedings in rem, and are deemed entitled to the same consideration : ” Story’s Conflict of Laws, section 592; 1 Greenleaf, section 342. I think, however, the statement is to be taken with the qualifications laid down in the authors hereinbefore quoted. If, then, a judgment in rem is herein correctly set-out, it is very clear that the judgment under consideration.is not of that class. It was a suit against Nolen. Service doubtless effected on Aim, certainly not on the land. It was not an attack on the title of the land, but a proceeding to subject the land to the payment of Nolen’s debt, which necessarily presupposed Nolen’s titled valid. It was not a proceeding “ to ascertain the right of every possible claimant.” Nor was it “ instituted on an allegation that the title of the former owner, whoever he might be, had become divested.” It was levied on as the property of Nolen to answer for his debt. The proceeding sought to obtain a judgment (and did obtain it) by means of which, and by the usual process of a sheriff’s sale, Nolen’s title might be divested, not a judgment declaring that his title, as well as that of every one else, had become divested at the time of the institution of the proceedings against the property. It was certainly less of a proceeding in rem than an attachment, which we have seen only binds the parties and their sureties.
The principles of the maritime law were certainly not intended by the Legislature to apply so as to place the me
Had Nolen resided in a county different from the county in which the land lay, would not the suit, provided for by the 6th section of the Act of 1834, have been brought in the county of his residence, and service have, been perfected upon him, not on the property by seizure? If the position of plaintiff in error be correct, is not a foreclosure of a mortgage a proceeding in rem ? And of course if it is, it must conclude everybody. Indeed it is much more certainly a proceeding in rem than the present, if our universal practice of foreclosing in the Superior Court of the county where the land lies, instead of in the county of the residence of the mortgagor, when he resides in a different county from that in which the land is, is constitutionally correct.
Judgment affirmed.