Harris v. Upham

94 S.E.2d 370 (1956)

244 N.C. 477

T. D. HARRIS v. Charles M. UPHAM.

No. 34.

Supreme Court of North Carolina.

September 19, 1956.

*371 M. B. Simpson, Elizabeth City, for plaintiff, appellee.

John H. Flail, Elizabeth City, for defendant, appellant.

HIGGINS, Justice.

The question presented is whether the Superior Court acquired jurisdiction *372 over the 50-acre tract of land and over the defendanta nonresident to the extent necessary to bind his interest therein by the method of service here employed. It must be conceded that no judgment in personam can be rendered on such service. The defendant contends the court could acquire jurisdiction over the land only by a levy thereon under a writ of attachment. Attachment would be necessary if the suit involved matters aside from the land itself. But where the controversy involves the title to or interest in land, the bringing of the action in the jurisdiction where the land lies is sufficient to enable the court to exercise dominion over it. "It such cases the court has the power to determine who is entitled to the property and to vest title by decree". Voehringer v. Pollock, 224 N.C. 409, 30 S.E.2d 374, 376; Foster v. Allison Corp., 191 N.C. 166, 131 S.E. 648, 44 A.L.R. 610; White v. White, 179 N.C. 592, 103 S.E. 216; Lawrence v. Hardy, 151 N.C. 123, 65 S.E. 766; Vick v. Flournoy, 147 N.C. 209, 60 S.E. 978; Heidritter v. Elizabeth Oil-Cloth Co., 112 U.S. 294, 5 S. Ct. 135, 28 L. Ed. 729.

A decree of specific performance of a contract to convey land goes no further than to operate on the land and on the parties to the extent necessary to carry out that contract. The decree is effective to vest and to divest title. When the land is in the jurisdiction of the court, constructive service on adverse claimants is sufficient. "Such service may also be sufficient in cases where the object of the action is to reach and to dispose of property in the State, or of some interest therein by enforcing a contract or lien respecting same." Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565; Bernhardt v. Brown, 118 N.C. 700, 24 S.E. 527, 715, 36 L.R.A. 402; Long v. Home Ins. Co., 114 N.C. 465, 19 S.E. 347. The plaintiff served process both by publication and by an officer outside the State. That both methods of service were followed cannot detract from the efficacy of either.

The Superior Court entered an order denying the defendant's motion to quash the service and to dismiss the action, and allowed 30 days in which to answer. The defendant excepted and appealed as he had a right to do under G.S. § 1-134.1. For the reasons assigned, the order of the Superior Court of Camden County is

Affirmed.

JOHNSON, J., not sitting.