
    ABRAHAM BALDWIN, et al., Plaintiffs and Respondents, v. SAMUEL S. TALMADGE, Defendant and Appellant.
    SPECIFIC PERFORMANCE OF CONTRACT FOR THE SALE OF REAL ESTATE.
    Jurisdiction or supreme and superior court.
    
      Where the eont/raet by its terms was to be performed in New Tori: city, and the lands which were the subject of purchase in the contract, were situated in another State,
    
    The superior court, asa court or equity, has the same jurisdiction as the late court of chancery of this State, in actions to compel the specific performance of contracts for the purchase and sale of real estate, where the parties to the action have been brought within its jurisdiction by service of process or otherwise.
    The late court of chancery exercised such a jurisdiction (see the cases cited in the points of counsel and the opinion of the court).
    The provisions of the code are not applicable, when land which is the subject of the action lies out of the state (Newton v. Bronson, 13 N. T. 587).
    Before Monell, Ch. J., Curtis and Speir, JJ.
    
      Decided May 3, 1875.
    The action is brought to compel defendant to perform a certain agreement to purchase real estate, and to pay the purchase money therefor.
    The complaint sets forth the terms of sale, the failure of defendant to comply, waiver of deed by defendant, and the refusal to pay the purchase money.
    The answer sets up want of title to the property ; that the sale was fictitious ; that defendant’s bid was for six lots laid out on a map as being one hundred and fifty-five feet on one side, and one hundred and fifty feet on the other; that he has tendered the amount of his bid to plaintiffs and refusal.
    The case was tried by the court without a j ury. The court found that the defendant should perform his contract, and gave judgment for the plaintiff. Defendant appeals.
    The principal question in the case was, that of the jurisdiction of the court. The counsel’s points on that subject are inserted.
    
      S. B. Brague, attorney for appellant; Charles S. Truax, of counsel:
    I. The court has no jurisdiction of the subject matter of the action. The land is situated in the state of New Jersey; the contract was made in the state of New Jersey; the defendant resides in the state of New Jersey. It is admitted that the jurisdiction of this court is as fall, ample, and complete as that of the supreme court. It is claimed that no case can be found where courts have made decrees affecting land, unless the land was within the jurisdiction, or some evidence of title, or the contract was made within the jurisdiction, or the parties to be affected were residents within the jurisdiction (Ring v. McCoun, 3 Sand. 524). The question in Williams v. Fitzhugh (37 N. Y. 444) was, will the courts of this state entertain a bill to declare void and compel the cancellation of a mortgage of land lying in another state, and executed there, in pursuance of a contract entered into in this state to secure loans made and payable in this state. The whole contract was entered into and to be performed in this state (p. 451). In Newton v. Bronson (13 N. Y. 587), the parties were residents of this state, and subject generally to the jurisdiction of its courts (p. 591). The judgment in Gardner v. Ogden (22 N. Y. 331), was that the defendants pay to the plaintiff fifteen thousand dollars, or, instead of paying that sum, Smith, one of the defendants, if he should elect so to do, might re-convey to the plaintiff such portions of the lots as he bad not sold, and the court of appeals affirmed this judgment. All the parties in Bailey v. Ryder (10 N. Y. 363), lived in this state, and the court held that they had power to compel a judgment debtor to convey to a receiver lands situate in another state for the benefit of his creditors. The case of Dale et al. v. Roosevelt (5 Johns. Ch., 174), does not touch the question. In that case, the executors of Robert Fulton prayed for an injunction to stay a suit at law upon a contract entered into by said Fulton to buy certain lands in Ohio. It does not appear where the contract was made, or in what, state the action on it was brought; but the fact is, that both Fulton and Roosevelt were inhabitants of this state, and probably the action at law was brought in this state, and the contract made here. Nothing was said by the chancellor (Kent) as to jurisdiction ; this case is not an authority on that point. Ward v. Arredondo holds that jurisdiction may be upheld whenever the parties or the subject, or such a portion of the subject, are within the jurisdiction, that an effectual decree can be made and enforced so as to do justice. The facts of the case are ¡these :—The plaintiff, a citizen of New York, had entered into a contract with the defendants in Havana for the purchase of a large tract of land in Florida, and had paid a large amount on account of said contract; the defendants had transmitted to the defendant Thomas, at the city of New York, a deed executed by them, with instructions to Thomas not to deliver it unless he was paid a further sum, and, if he was not paid that sum, to return the deed. The plaintiff prayed, amongst other things, that Thomas be restrained from sending the deed out of jurisdiction; Chancellor Walworth held that the deed was subject to the jurisdiction of the court, but said that his opinion was to be considered a provisional one, and as applicable to the state of the question as represented on a motion to dissolve the injunction, in which some weight may be allowed to the circumstance that a dissolution of the injunction would, in effect, be final. In the case of Mead v. Merritt (2 Paige Ch. 402), the same chancellor held that where a party is within the jurisdiction of the court of chancery, so that on a bill properly filed here this. court has jurisdiction of the person, although the subject-matter may be situated elsewhere, it may, by the ordinary process of injunction and attachment for contempt, compel him to desist from commencing a suit at law, either in this state or in any foreign jurisdiction. And (this is obiter) it may in the same manner compel him to execute a conveyance or release of property in another county. But he dissolved the injunction which had been issued restraining the. defendants from prosecuting their action in court. Mitchell v. Bunch (2 Paige Ch. 606) was an application to discharge a ne exeat. Chancellor Walworth said that it was not necessary to inquire whether under the 39th section of the title of the revised statutes, which relates particularly to this court and its proceedings, real property out of the jurisdiction of the court can be applied in satisfaction of the complainant’s judgment. He further said that, independent of the statute, this was a case in which a court had jurisdiction to compel a debtor, whose body is exempt from execution at law, to discover his property, so that it may be applied in satisfaction of his just debts. Whether the defendant has any part of his property vested in lands, &c., can not be ascertained until the coming in of the answer. It will then be time to raise the objection that this court can not make a decree concerning real estate which is situate in a foreign country. In Sutphen v. Fowler (9 Paige Ch. 280), the same chancellor held that the court of chancery had jurisdiction to decree the specific performance of a contract for the sale of lands situate in another state where the defendant is within reach of its process. In that case the defendant was domiciled within the state, and it is fair to infer from the statement of facts that the contract was made here. In Shattuck v. Cassidy (3 Edw. Ch. 152) the contract was made here, and the defendant had voluntarily submitted to the jurisdiction of the court, and came within the jurisdiction voluntarily to be served with process. The cause of action in De Klyn v. Watkins (3 Sandf. Ch. 185), arose in this state ; all of the defendants were served in the state ; all of the defendants except one, resided in the state, and part of the land was within the state. In the late case of Morris v. Chambers (29 Beavan, 253), a suit to enforce a personal demand on property in a foreign country, both parties residing in England, and the defendants had been served in England, Lord Romily said, “ that the bare statement of such a proposition requires that some special state of circumstances should exist in order to enable the court to give any relief of this description.” He did not pass upon the single point at issue in this case, but decided against the plaintiff on other-grounds. In the later case of Cookney Anderson (31 Beavan. 452), the question of the jurisdiction of the court of chancery was fairly before the court. Lord Romily said, “ that if it were not for the question of jurisdiction, on proof of the allegations of the bill, he would not have hesitated to have made a decree in accordance with the prayer.” “That the principles which govern the jurisdiction of the court is analogous to that of the civil law ; that these consist of three circumstances, any one of which will give jurisdiction ; the first is where the domicile of the defendant is within the county ; the second, where the subject-matter in dispute is within the jurisdiction ; and the third, where the contract in question was entered into within this jurisdiction and he defines jurisdiction to be “the topographical limits, within which, the compulsory process of the court operates to compel obedience to its decrees and orders.” He further ¡said, “ that if he should give plaintiff a decree, the only way in which it could be enforced would be to proceed in Scotland—where the land was—as in a case of a foreign judgment.” He said, “that he could find no case which would maintain such an exercise of the jurisdiction of the court; and sustained the demurrer to the jurisdiction.” The case was affirmed by the lord chancellor (see Cooking v. Anderson, 1 De G. Jones & Smith, 365; Huenermund v. The Erie Railroad Company, Daily Register, October 27, 1874).
    
      Isaac L. Miller, attorney for respondents:
    I. In the estimation of plaintiff’s counsel, the main if not the only question to be determined on this appeal is : Has this court jurisdiction of this action % In connection with that proposition of law, certain undisputed facts are to be considered, viz. : that defendant signed a certain agreement, which by its terms was to be performed in New York city ; that defendant was served with a summons in this action, and that he transacts business in New York city ; that two of the plaintiffs reside in and four of them do business in this city. Starting with these facts, the following authorities are submitted as to jurisdiction. The doctrine is that the court having jurisdiction of the person of the defendant will, by its process of injunction and attachment, compel him to do justice, by the execution of such conveyance as will affect the title of the property in the jurisdiction within which it is situated (Newton v. Bronson, 3 Kernan, 587; see 3 Abb. Pr. 20, note). It is perfectly well settled that the supreme court has jurisdiction to decree the ¡specific performance of a contract for the purchase of lands lying in another state. Such a jurisdiction existed in the court of chancery and passed to the supreme court by the provisions of the present constitution (Massie v. Watts, 6 Cranch, 148; Shattuck v. Cassidy, 3 Edw. C. R. 152; Ward v. Arrando, 1 Hopk. C. R. 213; Mead v. Merritt, 2 Paige, 402; Mitchel v. Bunch, 2 Id. 606; Sutphen v. Fowler, 9 Id. 280; Gardener v. Ogden, 22 N. Y. 327; Bailey v. Ryder, 10 Id. 363; Fenner v. Sanborn, 37 Barb: 610; Cleveland v. Burrill, 25 Id 532; Myers v. De Mier, 4 Daly, 343). By the act of 1873 (Laws of 1873), chap. 239, the superior court, and each of the judges thereof, “ has henceforth in court and out of court, power, authority and jurisdiction, co-extensive and concurrent with that of a justice of the supreme court, in court or out of court, as the case may be, in all actions and special proceedings of a civil nature, except those pending in the supreme court.”
   Bt the Court. —Speir, J.

The learned judge has found all the issues of fact, made by the pleadings in favor of the plaintiffs ; and it is quite clear that the-evidence fully justifies his conclusions.

The question principally discussed by the counsel, is whether the court has jurisdiction of the subject-matter of the action. The land was situated in New Jersey ; the contract was made in New Jersey ; the defendant, resides in the state of New Jersey. The contract was to-be performed in the city of New York. Counsel for the-appellant concedes that this court has as full and complete jurisdiction as that of the supreme court. This-jurisdiction, moreover, is established by the act of 1873,. chapter 239.

It will not be denied but that such a jurisdiction existed in the late court of chancery, nor that the same-passed, to the supreme court by the provisions of the-present constitution. In this respect the jurisdiction of this court can not be questioned. That concession could not be avoided consistently with a settled course of adjudications. The appellant’s counsel claims that the courts have never made decrees affecting land, unless the land was within the jurisdiction, or some evidence of title, or the contract was made within the jurisdiction, or the parties to be affected were residents within the jurisdiction.

A court of equity has uniformly decreed the performance of the sale of lands lying in another state, where the party who is to make the conveyance is within the jurisdiction of the court, and has been served with process, and is therefore competent to make a decree respecting the delivery of the deed according to the contract of sale, to be enforced by process in personam (Shuttrick v. Cassidy, 3 Edw. Ch. R. 152; Sutphen v. Fowler, 9 Paige, 280).

It also has power to compel a judgment debtor residing out of the state, after obtaining jurisdiction by process, to execute a conveyance of lands in another state for the benefit of creditors (Bailey v. Rider, 10 N. Y. 363).

It is enough to say that the provisions of the code are not applicable, when land which is the subject of the action lies out of the state (Newton v. Bronson, 13 N. Y. 587).

The judgment should be be affirmed, with costs.

Monell, Ch. J., and Cuktis, J., concurred.  