White v. White

Buchanan, Ch. J.

delivered the opinion of the court.

The bill in this case was filed for the sale of the real estate of Abraham White, deceased, and the distribution of the proceeds among his heirs, after deducting the amount of a subsisting lien, by mortgage, on a part of it; on the ground that it will not admit of an advantageous division, and that it would be to the advantage of all the parties interested, that it should be sold, which is admitted by the answers. A tract of land, part of this estate, is stated in the bill, to lie in the State of Pennsylvania, as to- which the chancellor dismissed the bill for the want of jurisdiction, and decreed a sale of that portion of the property, which lies in this State, appointing a trustee for that purpose. And the only question is, whether he should not also have decreed a sale by the trustee, of the tract of land in Pennsylvania.

It would be rather an idle thing in Chancery, to entertain jurisdiction of a matter not within its reach, and make a decree which it could have no power to enforce, or to compel a compliance with. And the absence of that very power is a good test, by which to try the question of jurisdiction. It would be a solecism to say, that the chancellor has jurisdiction to decree in rem, where the thing against which the decree goes, and is alone the subject of, and to be operated upon by it, is beyond the territorial jurisdiction of the Chancery court, and not subject to its authority, and the decree if passed, would itself be nugatory for the want of power, or jurisdiction to give it effect. Chancery can have no jurisdiction, where it can give no relief. Now what jurisdiction *211 Las the Chancery court of Maryland over lands lying in a foreign country, or in another State; and having no jurisdiction of lands so situated, what authority has it to decree a sale of them, and impart to its trustee authority to go into such State, or foreign country, to carry its decree into effect, by making sale of them.

It is true, that where the decree sought, is in personam, and may be carried into effect by process of contempt, the court of Chancery here, may have jurisdiction, although it may affect land lying in another State, the defendant being in the State of Maryland, as in a case of trust, or fraud, or of contract. As where a bill is filed against a person in this State, for the specific performance of a contract, or agreement, relating to land in another State. In such a case, the decree does not act directly upon the land, but upon the defendant here, and within the jurisdiction of the court. So where the land itself, that is sought to be affected, lies within the State, and the proceedings are against a person residing out of the State.

But in this case, the bill seeks a sale of land in Pennsylvania, not within the jurisdiction of the court of Chancery of Maryland ; and the decree if made would not be in personam, but for the sale of the land, through the instrumentality of a trustee, and could not be enforced by any process from that court. It is not like the case of Penn vs. Lord Baltimore, 1 Ves. Sr. 444, where the bill was for the specific performance of articles concerning the boundaries of the then provinces of Maryland, and Pennsylvania, Lord Baltimore the defendant being in England, and subject to the compulsory process of Chancery there. Nor like the other cases to t»e found in the English -Chancery reports, affecting lands not lying in England, where the proceedings were in personam, the defendants residing there, and subject to process of con- ,; tempt, &c.

DECREE AFFIRMED WITH COSTS.