Von Hesse v. Mackaye

Barrett, J. This is not an action in personam against Mrs. Mackaye to recover “a sum of money only,” as damages for a breach of contract, or for the wrongful conversion of, or other injury to, personal property. It is consequently not an action in which she could be proceeded against by attachment as a non-resident. The case for publication therefore, depends upon subdivision 5, § 438, of the Code of Civil Procedure; and the question is, does the complaint show a sufficient cause of action against Mrs. Mackaye with regard to “specific personal property within this state?” The subject of the action is 60 coupon bonds of certain foreign corporations. The plaintiff claims these bonds as part of the estate of his testator, James Mackaye. He avers [895] that they are also claimed by Mrs. Mackaye, the appellant, under an alleged gift from her husband, the said James Mackaye, made in his life-time. Mackaye died a resident of Paris, France. In the codicil to his will, executed on the 20th day of April, 1887, he declared his Paris residence. The complaint states that he died in that city, and the plaintiff, in the affidavit upon which publication was ordered, says that he “ had spent most of his time there for some years prior to his death.” Mrs. Mackaye resided in Paris with her husband, and still so resides. The bonds are in Paris, in the possession of bankers there, named Hottinguer & Co. There is no allegation or proof that the bonds were ever in this state, nor that they are payable here. It appears that the plaintiff and Mrs. Mackaye are now litigating their respective claims to these bonds before the French courts. The plaintiff admits that he has intervened there; and it seems to be undisputed that the foreign tribunal has acquired full jurisdiction over the parties and the,subject-matter. What, then, it may well be asked, is the plaintiff doing here? His complaint is framed as a bill in equity. The foreign corporations, the foreign bankers, and Mrs. Mackaye are made parties defendants. The prayer is that these foreign corporations, who are said to have offices here for the regular transaction of business, refrain from paying the principal or interest of the bonds; that a receiver be appointed to collect such principal and interest;- that Mrs. Mackaye be required to interplead concerning her.claim; and that it be adjudged that the bonds belong to the estate of the plaintiff’s testator. Distrust of the French courts seems to be one of the alleged equities of this bill. The plaintiff, in substance, avers that if the proceedings in France terminate unfavorably to his contention, and if Mrs. Mackaye should thus obtain possession of the bonds, he, as executor, might be remediless, and be unable to recover the possession of such bonds for the estate of James Mackaye, and, further, that if the corporations should pay her either principal or interest, that, too, might be lost to the estate. It is not necessary to consider whether this complaint shows any cause of action against Mrs. Mackaye entitling the plaintiff to the relief demanded. The jurisdiction of the court as to non-residents proceeded against otherwise than for a money demand on contract, or for specific pecuniary damages, is quasi in rem, and the complaint must not only show a sufficient cause of action generally, but a sufficient cause of action with regard to “specific personal property within the state.” Indeed, the learned judge at special term conceded, and correctly so, that the order of publication could not be upheld if the 60 bonds in Paris were to be treated as the subject of the action. He sustained the order solely upon the ground that the bonds were only evidences of debt, and that the obligation of the corporations to pay the principal and interest was the real subject of the action. That obligation he held to be “specific personal property within the state, ” because the corporations had offices here for the regular transaction of business, and because process had been served upon their agents here, resulting in their general appearance in the action. Thus he necessarily held that the situs of the corporate obligation was not the locality of the corporate being, but followed its agencies wherever established, and was inseparable, so to speak, from the debtor’s person. The underlying objection to this view of the case is that the bonds, though evidences of corporate obligation, are themselves essentially personal property. They are such both at common law and by statute. Trover could be maintained for their conversion. They could be specifically replevied. They were accounted part of the movable estate of a deceased owner. Ersk. Inst. bk. 8, tit. 9, § 4. Money could be borrowed, and liens effected, upon them. They passed from hand to hand, upon purchase and sale, by mere delivery. The Code declares them to be “personal property capable of manual delivery,” and, as such, the subject of attachment; the sheriff being required to take them into his actual custody. Code Civil Proe. § 649, subd. 2. They can be attached in no other [896] manner, being expressly excepted from the provision whereby other obligations, not similarly evidenced, may be.attached, namely, by leaving a certified copy of the warrant, and an appropriate notice, with the person against whom such demand exists. Id. subd. 3. And, further, “evidences of debt” are expressly defined to be “personal property” by the seventh subdivision of section 3343. Then, too, such negotiable instruments are plainly contemplated by the phrase,.in the section under consideration, “specific personal property,” the title to which may be affected by the action. That section speaks of a demand of judgment “excluding the defendant from a vested or contingent interest or lien upon” this specific personal property within the state; a judgment enforcing, regulating, defining, or limiting such an interest or lien in favor of either party, “or otherwise affecting the title to such property.” The purpose of this legislation is apparent, and it produces a reasonable and harmonious system. There is no attempt to drag non-residents into our jurisdiction in money actions, or with regard to pecuniary demands of a strictly personal character. Jurisdiction over property within the state is asserted and provided for. If the property of a non-resident is here, it may be attached in an action in personam for money or damages. There the action itself has no relation to the property, yet its sole purpose is the subjection of the property to the demand. If, however, there be no such demand, then the court may proceed quasi in rem, though in form in personam, to adjudicate upon conflicting interests in specific real or personal property within the jurisdiction. But, clearly, the corpus must be within the state,—the actual thing upon which the judgment can properly and adequately act. It seems clear that this “actual thing,” in the case at bar, is not the intangible obligation which lies behind the bonds,—the mere jus incorpórale,—but the bonds themselves. It is the title to these bonds which the complaint questions, not the title to the jus incorpórale. With regard to the corporate obligation to honor its bonds there is no possible controversy. The corporations do not dispute that obligation, and they are ready to meet it, upon the production of the true subjects of the controversy. In our judgment, then, an intangible obligation, evidenced by a tangible bond, is not, apart from the instrument, “specific personal property,” within the meaning of that phrase, as used in the section in question. It is the tangible bond, and that alone, which constitutes such property; and, unless that is alleged to be within the state, the court is without jurisdiction to order publication against a non-resident claimant. ' , It is not necessary, therefore, to determine whether an ordinary debt, evidenced by no written instrument, follows the situs of the debtor, and, so following it into this state, comes within the expression “specific personal property,” as used in this section. Still less is it necessary to determine that question when applied to the situs of a foreign corporation. Doubtless, such debts may ordinarily be attached by the service, in a proper case, of a certified copy of the warrant, with a notice showing what is attached, upon the debtor. But that is a very different thing from asserting jurisdiction over conflicting claims of title to, the debt, and for that purpose treating it as specific personal property within the state, under this section 438. IIow can the court lay hold of the corpus of sucha debt? How enforce interests therein, or liens thereon ? The respondent proceeds upon the notion that the body of the debtor is the corpus of the debt, or, rather, in the present case, the body of the debtor’s local agent. The debt has no corpus until collected, or otherwise reduced to possession. By a legal fiction, it is given a situs, for the purpose of regulating transmission, and fixing the rights of creditors and others. But it is a mere chose in action. Any one claiming to own the debt may, it is true, sue the debtor wherever he finds him; but can he follow him in his travels, and file a bill in a locality which is neither the domicile of the debtor nor of the rival claimant to the debt, to have it determined who is en [897] titled to be paid, and, when that is so determined, to enforce such payment in favor of the adjudicated owner? To this question should be added the possibility of the debtor’s denying that he owes the money to either party, and contesting with both. These suggestions suffice to indicate that if the question depended upon our treating the corporate obligation which is evidenced by these bonds, and not the bonds themselves, as the specific subject of the action, it would be by no means free from doubt. The illustration serves to show that the corpus of the property must be actually within reach of the court, to be dealt with as the facts and circumstances demand. Our views are fortified by the principle enunciated in Bryan v. Publishing Co., 112 N. Y. 382, 19 N. E. Rep. 825. The case there made for jurisdiction was, in our judgment, stronger than that presented by the facts now before us. The order of publication was vacated, although Earl, J., stated in his dissenting opinion that “some of the property, at least, was within this state.” The opinion of the majority, delivered by Danforth, J., proceeded upon the ground that, as an assignment of copyrights to a citizen of Massachusetts could not be effectually set aside-as fraudulent by the courts of this state, “the impropriety of issuing an order which, if it leads to a judgment, ‘would operate on nothing in the state, and be regarded by nobody out of it,’ becomes apparent,” and that “the defendant is entitled to make the motion, rather than submit to the hardship of coming into them [this state] to defend the action.” The same doctrine applies here. The court- could not compel the corporations to pay the principal or interest of their bonds to a plaintiff who had not possession of them. The bonds could be delivered to Mrs. Mackaye by the French courts, regardless of our decree; and she could transfer them to a purchaser, who would be entitled to principal and interest, equally regardless of our decree. Thus our decree would operate on nothing in the state, and be regarded by nobody out of it. Here there is no question whatever of any part of the property being within the state, and our conclusions are fully supported even by the dissenting opinion of Earl, J. The order appealed from should therefore be reversed, with $10 costs, and the usual disbursements, and the motion to vacate the order of publication granted.