
    IN EQUITY.
    Mary S. Blount v. Ex’rs and devisees of Tho’s. Blount.
    From Edgecombe.
    A, by his will executed in North-Carolina, appointed four executors, two of whom resided in. Tennessee, and devised to his nephews and nieces, certain lands in Tennessee, directing his executors, previous to a division of these lands among the devisees, to raise therefrom such sum as would be sufficient to pay all his debts. ’ The rest of his property he directed the executors to sell, and the money-arising therefrom he bequeathed to Complainant. Qn a bill filed against the executors and devisees, shewing that the acting executor in North-Carolina had applied a portion of Complainant’s residue in payment of testator’s debts, and praying that the lands charged might be sold, and she reimbursed ; it was held that as the lands Were without the limits of North-Carolina, no decree could be made by this Court against the acting executor here to sell those lands.
    The bill set forth that the Complainant was the widow of Thomas Blount, who died in the year 1812, having first duly made and published a will in writing, whereby he devised to the three sons and two youngest daughters of a deceased brother, ail his share of certain lands in Tennessee, owned by John Gray Bkmnt and himself, to he divided among such of the five c.ii, :dren of his deceased brother as should be living at testator’s death, with a declaration that out of said lands, before any division should be made, was to be raised by his executors in such manner as they should think best, a sum of money equal to all tiie just debts of the testator, which he di-‘ rected to be appropriated to the payment thereof. The rest of his property, the testator by a subsequent clause, directed his executors to sell, and the money arising from the sale thereof, together with such sums of money as might bo due to him, ho devised and bequeathed to Complainant. The will appointed four executors, whereof, two resided in North-Carolina, and two in Tennessee, and the bill alledged that one only of the four named, Thomas H. Blount, a resident of North-Carolina, had qualified. The bill then stated that the testator was at the time of his death considerably indebted, and that the acting executor had withheld a large portion of the estate bequeathed Jp her in the residuary clause, and as he alleged, applied the sum of S9,382 16, in payment of the debts of the testator; that the lands in Tennessee charged with the payment of the testator’s debts, consisted of many valuable tracts, and were, at the time of his death, fully sufficient for that purpose. The bill then complained, that the executors, on various pretences, evaded the claim made by the Complainant to have reimbursed as much of her legacy as had been absorbed in payment of the debts of testator, alleging among other reasons, that the lands had been sold, and the proceeds were to be applied to the payment of a judgment for twelve thousand dollars, confessed by Thomas H. Blount, the acting executor, to his father John Gray Blount, who was also made a Defendant in the bill. The bill further charged, that this judgment was confessed on a bond made by testator and John Gray Blount to one Sumner, to secure the payment of a sum of money advanced to them by Sumner : that John Gray'Blount received the benefit of Sumner’s loan, and upon a recovery effected by Sumner against him for this money, he prevailed on the executor, Thomas H. Blount, to confess a judgment in Ms fa-Tour for the amount of Sumner’s recovery $ notwitli-standing it was notorious, that had the debt been solely the testator’s, yet he had claims against the said John Gray Blount to a very large amount, which might have been set off against the recovery of the said John Gray Blount. And as to a release which it was alleged by the executors had been given by Complainant to John Gray Blount, of any demands which she might hqve against him on account of transactions between him and the testator ; the Complainant averred that she signed it without any consideration, and without knowing from what benefit she was excluding herself. The bill concluded with a prayer, that the lands charged in the will might be sold, and Complainant reimbursed the sum. withheld from her, and that if any part of the said sum had been disbursed by the.executor, that she might have satisfaction out of the. lands so far as he had disbursed, and a decree against him personally for the residue.
    The answer of Thomas H. Blount admitted the death of the testator, as charged in the bill, aud that he qualified as executor in North-Carolina, as did also Wm. G. .Blount in Tennessee. The devises in the will of the tes'tator, were as set forth in the bill, and as the testator was, at the time of his death, largely indebted, and this respondent could not raise money for the payment of these debts by the sale of the lands, he was obliged to pay them out of the property devised, to Complainant, which he was advised, was assets in his hands for that purpose. It was admitted in the answer, that there were lands in Tennessee owned in common by the testator and John Gray Blount, but this respondent admitted nothing as to the boundaries or value thereof, having no personal knowledge of them, and never having seen the title deeds. The management of the sale of these lands was left, by this respondent, to William G. Blount, from whom he had recently learned that a sale could not be effected. The respondent admitted that a judgment liad been rendered against him as executor of testator, in fa-vour of John Gray Blount, for S9267 10, with interest from June, 1815 ; which sum, the respondent averred, jie believed was justly due to John Gray Blount, who, as surety for his testator, paid the same after his death, in satisfaction of a bond given by testator and said-John Gray Blount to one Sumner, the brother of Complainant. That Sumner had presented the claim to this respondent for payment, alleging it to be the debt of his testator, and liad agreed, at one time, to accept a conveyance of the Tennessee lands as security for its payment, and that afterwards, as this respondent knew7, John G. Blount had been compelled to pay the debt ata considerable sacrifice. That this respondent knew of no set-off, of which he could avail himself, more especially as the Complainant had given him formal notice that she had executed a release to John Gray Blount, by which she acquitted him of all demands which she might have against him in right of the testator, and further, this respondent knew nothing of the accounts which had subsisted between bis testator and John Gray Blount, as the books were retained in the hands of the surviving partner.
    The answer of John Gray Blount set forth particularly, the origin of the tenancy in common in the Tennessee lands between his brother the testator, and himself, and stated that the testator was entitled to one-third part of about fifty thousand acres of land in Tennessee, of the situation or value of which, (as it w7as continually fluctuating) nothing could with certainty be said. That at the time of the testator’s death, this respondent expressed a belief that the lands charged with the payment of: his debts, v/oi'c sufficient for that purpose •, that at this time he had no knowledge of any debts except those due Sumner, and the firm composed of the testator and himself, and tha! this respondent did not expect or intend to demand payment of the debts due the firm, if an arrangement for the settlement of the partnership transactions entered into between the testator and this respondent, in testator’s life time, could be carried into effect after his decease, or if the Complainant would sign a release. The answer averred that Complainant did voluntarily sign the release without any practises of this respondent, and that the consideration therefor was a release of the. claim he had against his brother the testator; that the judgment obtained against Thomas H. Blount was fair and without collusion j that it was legally taken for monies which this respondent had paid Sumner as the security of Thomas Blount; that this respondent never received any money from Sumner or any other person, to secure the payment of which, the bond was given to Sumner; nor does he indeed know the, consideration of that bond, as it was given on some transaction in which he was no party ; nor is there any entry on the Books of the firm to shew that the money was applied to tiie use of John G. and Thomas Blount; and that Thomas Blount died indebted to the firm more than eleven thousand pounds. The respondent finally submitted, that as it appeared from Complainant’s bill that the lands are in Tennessee, an independent government, the Court could not entertain a suit with regard to them, or make any decree affecting them.
    Such of the five children of testator’s brother, as lived out of the State, were made parties Defendant to the, bill, and publication as to them was regularly made.
    
      Gaston, for the Complainant,
    contended, that if there was money in the hands of Thomas II. Blount, not disbursed in the payment of debts, the Complainant was entitled'to a decree for the amount. So, if he might have j^.id his testator’s debts by a sale of the lands, the Complainant was entitled to a decree for the amount of her bequest disposed of by him. And even if the bequest had been entirely applied to 1;hc payment of debts charge(] 011 the lands, and no culpable delay liad taken place in selling the lands, Complainant, might ask, that the executor should be decreed to execute this power of sale so as to be enabled speedily to refund to Complainant what was due to her; and this Court might compel him to call on iiis co-exccutPrs to aid in the transaction, and if they refused, to act without them.
    The land being in Tennessee, is not a circumstance which will prevent this Court from decreeing what is conscientious between Mrs. Blount and the acting executor — (1 Ves. 203, 447, 454 — 4 Inst. 213.) There is no Court but this that can give redress. If she applies to the Courts of Tennessee she may be told, no one in that State has ever acted as executor, and Thomas H. Blount is not within reach of thejr process.
    Where a power is not given nominaiim, but to executors, there, even at the Common Law, those who act may exercise the power — (Jenk. Cent, quoted 6 Johns. 79,) — Howell v. Barnes, (Cro. Car. 352, 8. C. — Sir W. Jones, 382— Vow. on'Hero. 307) — Yates v. Compton, (2 F. Wms. 308 — . 3 Dyer, 371, h. cited by Thurlow — 1 Bro. 137 — Co. Lit. 113. a. — 2 Hen. & Mum. 136.)
    Unquestionably it may be so done, since the stat. 21 H. 8 Ch. 4, which is a remedial act — (Co. Lit. 113, a— 4 Beeves, 241 — Cro. Elia. 80 — 11 East, 287.) Should any unexpected difficulty occur in carrying such a decree into' execution, it will be in the power of Thomas H. 'Blount to shew these by way of excilse.
    
      Seawell for the executor,
    contended, that it appeared from the bill itself, that the Complainant was not entitled to the relief she sought j the bill stated, that no steps had yet been taken to execute the trusts of the will; that the devisees and all the executors, except Thomas H. Blount, resided out of the State, and that the land was out of the State. No bill could be so framed, as not to bring the devisees before the Court; because, by the allowing of the bill they were interested in the land. If this Court should order the executor to sell the land, they could not protect a purchaser under such sale.
    
      Ruffin for the Defendants.
    The lands in Tennessee cannot be sold by a decree of this Court. If they were situated in this State, under existing circumstances, there could not be a decree of sale. The devise passes no estate to the executors ; the will gives them a bare power, and at Common Law, all the executors must join in the execution of a bare power, though that power be given to them as executors, and they are to act eic officio— (Co. Lit. 113, a.) The case of Howell v. Barnes, is differently reported by Crake and Jones, and as it was deci - ded after the stat. 21 II. 8, was probably governed by it — (vide Pow. I)ev. §0/.) The stat. 21, 71. 8,provides only for the case of a refusal to act by one executor. Here there has been no refusal. An executor cannot refuse by an act in pais ; it must be in open Court, and entered of record — f Toller 42.J The Court ¡will not decree that Thomas H. Blount alone should sell, for he cannot make a good title.
    But this Court wants jurisdiction in this case. The land is in Tennessee, as are also Win. G. Blount and his brothers and sisters, the devisees of this land. The subject and the persons to be affected, are both beyond the jurisdiction of this Court. No case can be found, where a bill has been sustained, and relief granted under such circumstances ,* for the jurisdiction of Chancery is always founded upon the presence, or rather, having within its reach either the person or subject matter of litigation. Indeed, the jurisdiction of alí Courts must be founded on one or other of those circumstances, as there can be no other mode of giving the party concerned, notice that his interest is sub judice. This is more particularly the case with a Court of Equity, the primary jurisdiction of which is, agere in personam. — (1 Fonb. 
      
      jEq. 34 — 1 Harr. Ch. 59 — 2 Tow. Con. 7, 8_) — Hopkins v. Bridges — (4 lien. & Mun. 413. J
    Tliis subject has been most debated in suits affecting lands without the limits of the country of the Court, and so far as the jurisdiction depends upon the locality of the land, it is determined by the object or purpose of the bill. If the bill be to obtain partition, or in any other way to operate directty upon the. laud, it must be within the country of the Court, so that the decree may be enforced by the writ of assistance — (2 Corn. Big. “ Chancery E.”) Petits case, cited in Kildare v. Eustace, (1 Verm 421) — Guerrant v. Fowler, (1 Hen. & Man. 5)— (2 Madd. Eq. 361 — 1 Ves. 454.)
    So a bill was dismissed which prayed the Court to put Complainant kilo possession of land in St. Kits — Jto-lerdean v. Bouse, (1 Aik. 543.) it is admitted, however, that in cases of contract, trust, fraud, in relation to land out of the State, the Court of the country, where the Defendant may be found, may decree ; but it is only where lie person of the Defendant is within the State, that such decree can be made. All the text books, and all the cases, go upon that circumstance. — (2 Madd. Eq. 361 — 1 Font). Eq. 34) — Kildare v. Eustace, (1 Vern. 405J— Arglasse v. Muscliwmp, ('1 Vern. 75) — Toller v. Cosieut, (2 Vern. 494) — Foster v. Vassal, (3 Atk. 589 — 2 Com. Big. 543) — Massie v. Watts, (6 Crunch 157-8.J
    
    In saying that, no relief has been granted, unless the subject or person was within the jurisdiction of the Court, it is meant relief against absent Defendants. The utmost extent to which the Courts have gone, has been from necessity in certain cases, to relax the rule requiring all interested to be brought before the Court, so far as to permit the Complainant to proceed against those within the jurisdiction, leaving the others out, and then no decree is made against those who are absent; and in fact, this mode of proceeding will only be allowed when a perfect decree can be made as to those before the Court, and justice done so far as they are concerned — (Finch’s Ch. 83 J — Smith v. Hibernian Co. (1 Sch. & Lef. 240J— Williams v. Whinyates, (2 Bro. Ch. 399J — Ingram v. Lanier, (1 Hay. Bey. 22.J
    The act of 1787, ch. 22, does not aid this case. By the 6th proviso, the ground or cause of action, or transaction on which the bill may be brought, must take place within the limits of this State. Here the ground of suit is, a breach of trust in not selling lands in Tennessee.
    
    The body of the act relates to two classes of cases, 1st, those arising upon personal duties, upon which the decree might be satisfied by execution against the estate or body. 2dly, those affecting lands within this State, of which the Court could deliver the possession to the Complainant. Whenever lands out of the State, or the disposition of them, are in controversy, tiie foundation of the action necessarily arises out of the State.
    The want of jurisdiction need not be pleaded, but if it appear on the hearing, the Court can make no decree, even though an answer has been put in — (2 Mad. Eq. 225, 239 — 1 Ves. 447 — Milford 100 — 1 Hen. & Man. 5— 6 Cranch 157-8.) The lands are in Tennessee, and the Lex loci must govern them. Foreign Law cannot be taken notice of by this Court. It is matter of fact, and as such should be proved — ■(" Cranch 115) — Church v. Hubbart, (2 Cranch 236.) This Court is not necessarily to know what the Law of Tennessee may be on this subject.
    
      Gaston, in reply.
    It is objected that the Courts of North-Carolina have not jurisdiction of this case. By the act of 1787, ch. 22, Defendants made parties pursuant to that act, are as completely parties for the exercise of jurisdiction, as though they had been personally served with process j “ the Court may thereupon decree as shall be thought just, and issue process to compel performance,’'' &c. It cannot be denied, but that the Legislature was competent to vest jurisdiction in tliis way, and it is certain that it has done so ; the words are unequivocal ,• and that it designed to do so, is not singular. jn J5rtg]allt|) the rule was, if any person interested was out of the reach of process, not to make him a party, but to proceed against the others — (2 Mail. Eq. 144 — 1 Sch. Sf Lef. 240.) Here a different rule was adopted, because of our different situation ; all interested were to be made parties, some by personal process, others by publication. And abundant provisions were made to prevent any pernicious effects from the exercise of this jurisdiction over non-residents. The present case is undoubtedly of the number of those comprehended in the 6th proviso, and if so, there is no good objection to the jurisdiction. But independent of our statute, on English Chancery principles the objection is not well-founded. Wherever the Court of Chancery acts directly in personam, and not in rein, the locality of the thing cannot give, nor does it take away jurisdiction. It does not give, for unless there be a conscience, to be coerced, on which the Court can act, it acts not at all — (2 Madd. 144.) Nor will it take away jurisdiction — Lord Cranstoun v. Johnston, (3 Ves.jr. 182 — 5 Ibid. 182) — Jlrglasse v. Mnschamp, (l Vern. 75-135) — Kildare v. Euslace, (1 Ferre. 419) — (1 Salk. 404— l Eq. Ca. M. 133 — -l Hen. & Mm. 5.) The cases quoted by Defendant’s counsel are all consistent with this position. Tennessee can have no other jurisdiction than North-Carolina, founded on the personal subjection of the parties, and if North-Carolina Courts want jurisdiction, no Court can have it.
    But if is objected further, that a Court cannot have jurisdiction when it cannot enforce the decree; and this Court, it is said, cannot enforce a decree of sale, but the Courts of Tennessee may. The Courts of Tennessee can have no more power to force Thomas H. Blount to sell, than this Court has to compel William G. Blount to sell. This Court may enforce its decree personally against Thomas H. Blount, and by sequestration against the others, of any effects they have here — (1 Vern. 135.)
    
    
      It is further objected that this Court cannot judicially know whether a sale by the Defendants, or one of them, will convey a good title, and Courts of Equity never order sales, but when they can make purchasers safe.
    If, by decreeing a sale, be meant a judicial sale, a decree in rem, the proposition may be admitted, though even then it has many modifications but if by the expression, be meant a decree that her should sell who has been entrusted to sell, the proposition is denied. Perhaps it would not decree the execution of such a power, if it knew the power could not be effectually executed; but the authorities do not go beyond this.
    But it is said, that even if the Court has jurisdiction, the Complainant is not entitled to relief; for this Court cannot compel any to convey, but the two executors within this State; and that conveyance alone can answer no purpose, as the power is joint. To this it is answered, that the power is given virtnte officii ; and he who undertakes the office, is competent to the performance of it. The argument on this point does not turn, as is supposed, on controverting the distinction between a devise to sell, and a devise of lands to be sold: admitting that a power, not an interest, is given, the enqui-ry is here, how and to whom is that power given ?
    It is contended, that when given, either in words or by plain intent, to executors officially, such a power is a mere adjunct of the office, as though the testator had said, to such only of them as shall act — And if those words are used, the one qualifying may execute it — (9 Cranch, 152 — Co. Lit. 113, a.) This position is conclusively proved by Jenk. Ceni. 43, 44, Howell v. Barnes, according to the report either in Broke or Jones, (Pow. Bev. 306-7) — case of Isabel Goodcheap, {Ibid. 307, 308)— cases of 2 Leon. 220, and Byer, 371, b, as explained by Powell, 298, 299. But at all events, this objection is cured by stat. 21 H. 8. As to the objection that the bil- does not state a refusal by the other executors to act, it states what is tantamount in a bill in Equity, though jt would not be on a special verdict — {Powell 309, Sid.) But the Court may decree in the alternative, that the executor in Norlh-Carolina, who has qualified, shall sejj aionCj jf the other executors refuse to join him.
    The Reporter regrets, that lie has it not in his power to present the argument made in behalf of some of the devisees residing in Tennessee, by P. M. Miller, Esquire, of that State.
   Hart,, Judge.

The justice of the Complainant’s claim cannot be for a moment doubted, but the remedy b.y which it is to be asserted, is matter of more difficulty. This arises from the circumstance, that the-lands out of which her claim is to he satisfied, arc situated without the limits of the State, and most of those persons concerned in in tere st are non-residents.

Nothing can be hazarded in saying, that in many cases a Court of Equity may proceed against the person, although the lands which may be the subject of controversy are not within the jurisdiction of the Court j as where a Defendant has contracted to convey lands, he may he compelled to do so, by executing a deed : — where he is a trustee, he may be compelled to execute the trust, although tiie trust relates to lands without the limits of the State. The Court proceeds against him personally, but will make uo decree to bind the title of the land.

It is equally clear, that where the land lies within the jurisdiction of the Court, it may become the subject matter of a decree j although the person in whom the legal title is, is a non-resident, they may proceed in rein, as in the case before put. they may proceed in personam. But the difficulty here is, that the lands, and the persons who have the legal title to them, are in the State of Tennessee. In every independent government, the right to the soil is vested in the sovereign power ; and it belongs to that power to grant titles to lands, and regulate the transfer of titles from one individual to another, in any way it may think proper ; and to declare that all conveyances not conformable to such regulations, are null and void. Hence it follows, that all laws, judgments, and decrees, made in any other government, relative to such lands, have no binding force.

I think it will be admitted, that a Court of Equity ought not knowingly to do a vain thing; make a decree which it cannot enforce. We cannot, therefore, make a decree to bind the land, because it is not within our jurisdiction. Suppose we direct that Thomas Blount, one of the executors, should sell the land, either upon the ground that he may sell xirtute offiái, or that the power to sell lias devolved upon him by stat. 21 Hen. 8, in consequence of the refusal to sell of the other executors,, which statute is in force in North-Carolina. If a purchaser from him should bring an ejectment to recover the lands so purchased, as the State of Tennessee has a right by law to regulate and lay down the mode by which the titles to land in that State shall be acquired, would it not be competent for her Courts to judge whether Thomas Blount, as executor and eo nomine, could sell the lands or not ? Whether, the other executory having refused to sell, he could sell by virtue of any statute, or act of their Legislature, authorising a sale in such cases, as the statute of the 21 Hen. 8 does ? If their Courts should be of opinion, in either case, against the validity of the sale, the purchaser could not recover. If the lands were in this State, a Court of Equity here would have it in its power to protect a purchase made under its own decree.

Again' — Suppose by the laws of Tennessee, three witnesses were necessary to a will of lands, and only two should be necessary in North-Carolina, (as is the case,) and lands were directed to be sold by decree of this Court, which lay in Tennessee,* and suppose that the executor clearly had a right to sell by the words of the will, will it be for a moment contended that a sale of lands under such authority would be valid ? Our law says, that a last will found among the valuable papers and effects of a deceased person, or lodged in the hands of any person for safe keeping, if it be in the hand writ-jng. yje (Jeceaged^ proved by the requisite number of witnesses to be so, shall be good and valid,: but suppose there is no such law in Tennessee, would a devise in such will here, be valid there ? or a sale of lands in Tennessee, by an executor clothed with authority for that purpose, be valid ? If we direct a sale to be made by Thomas Blount, whether such sale would be good or not, would depend upon the laws of Tennessee. No decree made by us, then, would, or could be enforced, unless it should be sanctioned by the laws and by the Courts of Tennessee. It might be enforced, not because we made it, but because they approved of it — It would derive no authority from us, and therefore, I think we would be doing a vain thing to make any decree respecting tire sale of the lands. I think the laws of Tennessee must be consulted, in order to raise money out of those lands, as directed by the will, and perhaps they can be consulted in no better way, than by. applying to'the Courts of that State. 'But it has been argued that all necessary parties are before the Court, because publication has been made as to non-residents, and that is an adequate substitute for the service of subpoena. ’Tis true that the law prescribes that mode of giving notice, (where actual notice cannot be given,) and no decree can be made without observing it: but w hen the property lies out of the State, relative to which a bill in Equity is brought, and the Defendant is not actually before the Court, but publication has been made only, how is a decree to be enforced ? Not in rem, because the property is not within the jurisdiction of the Court, nor inmerso-mm, because process of attachment, or of any other sort, cannot reach the person of the Defendant, so as to compel a compliance with the decree. There surely can be nothing in this argument.

No decree, therefore, ought to be made against Tilo-mas H. Blount, to sell the lands in Tennessee.  