168 Ga. 15 | Ga. | 1929
This is a case in which a verdict and decree for specific performance of an executory contract for sale of land located in this State, based on substituted service on a non-resident vender, not excepted to when rendered, was subsequently attacked in a petition by the vendor to set aside the verdict and decree. That petition was dismissed on demurrer. One question is whether the verdict and decree for specific performance, based solely on service by publication, were outside of the jurisdiction of the court, and consequently void as against the vendor. The recent- case of Edwards Mfg. Co. v. Hood, 167 Ga. 144 (145 S. E. 87), was an
In Arndt v. Griggs, 134 U. S. 316 (10 Sup. Ct. 557, 33 L. ed. 918), it was held: “A State may provide by statute that the title to real estate within its limits shall be settled and determined by a suit in which the defendant, being a non-resident, is brought into court by publication. The well-settled rules, that an action to quiet title is a suit in equity, that equity acts upon the person, and that the person is not brought into court by service by publication alone, do not apply when a State has provided by statute for the adjudication of titles to real estate within its limits as against non-residents, who are brought into court only by publication.” This decision rests upon the principle that a State has inherent power to make and enforce laws for regulation and control of property that is within the limits of the State. In the opinion the court commented ripon the decision in Boswell’s Lessee v. Otis, 9 How. 336, 348 (13 L. ed. 164), and quoted approvingly therefrom the following: “‘Jurisdiction is acquired in one of two modes: first, as against the person of the defendant, by the service of process; or, secondly, by a procedure against the property of the defendant within the jurisdiction of the court. In the latter case the defendant is not personally bound by the judgment, beyond the property in question. And it is immaterial whether the proceeding against the property be by an attachment or bill in chancery. It must be substantially a proceeding in rem. A bill for the specific execution of a contract to convey real estate is not strictly a proceeding in rem, in ordinary cases; but where such a procedure is authorized by statute, on publication, without personal service or process, it is substantially of that character.’”
In Harris v. Palmore, 74 Ga. 273, it was said: “1. Where a bill was filed in this State, alleging the purchase of land therein, the payment of the purchase-money, a refusal by the vendor to make a title to the vendee, and that the former was a non-resident of the State, and seeking to enforce the purchase and quiet the title and possession, the rule that a defendant in equity in this State must be sued in the county of his residence is inapplicable; and the question of jurisdiction is, whether any court of equity in the State has jurisdiction. . . In such a case a court of equity of
The foregoing statutes afford the courts of equity authority to decree, which authority is as ample to decree specific performance of contracts against non-resident vendors upon service by publication, relatively to property within the limits of this State, to the extent that in a proper case made .the decree shall operate as a conveyance of the property to the vendee, as the statutes provide for the subjection of property in this State- of non-resident persons by seizure under a writ of attachment and the like, without personal service, for collection of debts. In such cases the judgment will be binding upon the non-resident in so far as it relates to the specific
In the suit for specific performance in question, the land was located in Floyd County, Georgia, where the suit was brought. The contract provided that upon payment of a specified purchase-price within a designated time, the vendor would convey the property to the vendee with general warranty of title. The contract did not mention an outstanding security deed to the land executed by the vendor to a bank whose principal office was in the county where the land was located, which in fact existed. The petition in the suit for specific performance addressed to the superior court of the county where the land was located was brought in the name of the vendee and a corporation in whose interest it was alleged that the purchase was made. It was brought against the vendor and the bank, and it was alleged that it was necessary to pay off the bank to enable the vendor to convey a good title to the property; also that the vendor concealed herself to prevent a lawful tender of the purchase-price from being made, and consequently that the vendee tendered the amount of the purchase-price in court.
The rulings announced in headnotes two to seven, inclusive, do not require elaboration.
Judgment affirmed.