Johnson v. . Whilden

81 S.E. 1057, 166 N.C. 104, 1914 N.C. LEXIS 353

• Court: Supreme Court of North Carolina
• Decided: May 30, 1914
• Status: Published

Opinion

Hoke, J.,

after stating tbe case: It is now tbe well settled principle that no valid judgment in personam can be obtained against a nonresident or other for an ordinary money demand except on personal service of process witbin tbe territorial jurisdiction of tbe court or unless there bas been proper acceptance of service or a general appearance, actual or constructive, by wbicb tbe party submits bis cause to tbe court’s jurisdiction. Tbe position is modified, or, rather, a different rule obtains, where in such an action, duly instituted and on attachment issued, there bas been á valid levy of property of defendant in tbe jurisdiction, bringing tbe same witbin tbe custody of tbe court, in wbicb case tbe question of indebtedness may be considered and determined in so far only as tbe value of tbe property may be made available in satisfaction of the claim by sale under final process or further decree in tbe cause; beyond this value, no judgment in personam may be entered or enforced. Pennoyer v. Neff, 95 U. S., 714, and 9 Rose’s notes thereon, pp. 338-39 et seq.; Warlick v. Reynolds, 151 N. C., 606; Bernhardt v. Brown, 118 N. C., 701.

These and other authoritative decisions are to tbe effect that a court may acquire jurisdiction by publication of tbe summons to bear and decide suits to fix tbe status of property situate witbin its territorial jurisdiction or to determine tbe rights or interest of parties therein, when tbe action is brought and prosecuted directly for that purpose.

An interesting and instructive case of this kind appears in 134 U. S., 316, Arndt v. Griggs, that being an action to quiet title to realty, and tbe principle bas been frequently recognized and applied in this jurisdiction, as in Bernhardt v. Brown, supra; Vick v. Flournoy, 147 N. C., 209, an action to redeem land under a mortgage, and Lawrence v. Hardy, 151 N. C., 123, a suit for partition, etc.

It will be noted that when the action is one in ■personam and the jurisdiction is dependent solely on the attachment, there must be a valid levy on the property, and where, as in this State, this writ is only regarded as process ancillary to the main .or ultimate relief sought, unless the statutes regulating the matter otherwise provide, there can be no valid levy except on property which can be made available by sale under final process, and while the North Carolina statutes have very much extended the scope and vigor of the writ in reference to real estate, there has been no change as' to the character of the property liable to levy and sale, made by the statute, but, on perusal of sections 767 and 784, it appears that the writ, both in reference to the species of property and as to the levy and ultimate sale, is to be regarded as in the nature of an execution. This being true, it is the recognized position here and in other States having statutes of like purport, and both before and since the existence of our present civil procedure, that an attachment can only be levied on property which could be levied on and sold under execution, as the final process in the cause. Electric Co. v. Engineering Co., 128 N. C., 199; Davis v. Garrett, 25 N. C., 459; Gillis v. McKay, 15 N. C., 17; Courtney v. Carr, 6 Iowa, 238; Burns v. Lewis, 86 Ga., 591; Hillman Bros. v. Werner, 56 Tenn., 586; Lane v. Marshall, 48 Tenn., 30; and see note in 11 A. and E. Annotated Cases, p. 689, on case of Pelzer Manufacturing Co. v. Pitt, 76 S. C., 349, at page 669 ; Drake on Attachments, sec. 235; Shinn on Attachment, p. 415.

In- the case before us it appears that the suit of A. M. Frye against the Tuckaseegee Mining Company and its trustee was one strictly in personam to recover a sum for legal services rendered the company. No personal service was obtained upon either defendant, and the only basis of jurisdiction is the levy of an attachment on real property held by J. S. Burnette, one of the defendants in trust, to “sell, make title to purchasers by deeds in fee, and out of the proceeds to pay, first, the indebtedness of the Tuckaseegee Mining Company incurred both before and since the bringing this action, and to pay over to the stockholders any surplus, etc., etc.” ,

Under our statutes, and decisions construing same, sucb an interest is not the subject of levy and sale under execution. Mayo v. Staton, 137 N. C., 610; Tally v. Reid, 12 N. C., 336; McKeithan v. Walker, 66 N. C., 95. Nor could there be any valid levy made thereon under the ancillary process of attachment, and according to the authorities heretofore cited, and the principles' they uphold and illustrate, the judgment in case of Frye v. Manufacturing Co. was a nullity, and no title passed to the purchaser at the sale under final process in the cause.

It is urged for defendant that plaintiff and those under whom he claims are concluded by the judgment entered in the cause, which establishes the indebtedness, declares the land levied on subject to same, and adjudges that the interest of defendants be sold and applied to payment of the judgment. The position would be undoubtedly correct if the court had jurisdiction of the parties and had acquired any right to consider and pass upon the interest of the defendants in that suit; but the action was not one quasi in rem and in which plaintiff sought to establish his debt and enforce his right against the property as a cestui que trust, or one of them, under the terms of the deeds. It was, as we have seen, a suit strictly in personam, and there having been no personal service of process on either defendant within the jurisdiction, aud the levy on the attachment being of no effect, the property not being liable to service under that process, the court was entirely without jurisdiction to establish any debt in favor of plaintiff or to determine in any way the rights or interests of the nominal defendants. And the claim under and by virtue of the alleged tax title is without merit.

The affidavit filed by the purchaser shows that he was fully aware that the property was owned by J. S. Burnette, the trustee, and the notice, made an exhibit in the record, not only does' not purport to give notice to the trustee, the owner, but there is nothing in the record to show-that the publication was made either on the dates or the number of times required by section 2903 of the Revisal. In several recent decisions of the Court it has been held that the requirements imposed by this and cognate sections of the statute must be strictly complied with, and that a failure on the part of the purchaser to give the proper notices to the owner would avoid the deed. Rexford v. Phillips, 159 N. C., 213; King v. Cooper, 128 N. C., 347; Thomas v. Nichols, 127 N. C., 319.

Under the principle established by these and other decisions of like kind, we must hold, therefore, that the tax deed is void, and carries no -title to the purchaser. It may be well to note that the verdict on the second issue seems to 'establish by correct interpretation that defendant is owner of the beneficial interest of the Tirckaseegee Mining Company, under the decree establishing the trust, and plaintiff, not having appealed, is concluded by such finding, and the judgment below will be so far reformed as to declare and adjudge that such interest is had and owned by defendant. The costs of appeal will be paid by appellant.

Modified and affirmed.