After the decision in Silver Camp Mining Co. v. Dickert,31 Mont. 488, 78 P. 967, 67 L.R.A. 940, 3 Ann. Cas. 1000, holding that a suit for the specific performance of a contract to convey real estate was one in personam, the legislature *Page 429 amended section 9117 by inserting the following: "The provisions of this action shall apply to all actions and proceedings in which personal service of summons is not required to be made in order to obtain relief, including every action or proceeding commenced in any district court of this state to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrance, or lien, or cloud, upon the title of real or personal property within this state."
The first part of this added paragraph indicates a legislative purpose to extend the right to service by publication the extreme limit permissible by legislative Act. The latter part of the added paragraph simply specifies certain actions that the legislature intended should surely be covered but it does not thereby restrict the former part of the added paragraph.
The statute is broader than the Federal statute considered in Ladew v. Tennessee Copper Co., CC., 179 F. 245, 250, relied upon in the majority opinion. In that case the court pointed out that the statute contained no general terms but specifically enumerated the actions to which it related by saying:
"It is clear that this section does not extend either to all suits of a local nature or to all local actions in rem or in the nature of proceedings in rem, but is definitely limited to suits brought for the enforcement of certain specific rights. The suits which it includes are not described by reference to their general character, but by reference to their object. It contains no general descriptive phrase such as `suits of a local nature,' used in sections 741 and 742, Rev. St. [28 U.S.C.A. secs. 115,116] (U.S. Comp. St. 1901, p. 588), in regard to suits brought in a state having more than one judicial district, or `proceedings in rem' or other like phrase; on the contrary it definitely enumerates the suits to which it relates, namely, those brought `to enforce any legal or equitable lien upon or claim to, or to remove any incumbrance or lien or cloud upon, the title to real or personal property.' In view of this specific enumeration of the suits to which it relates, and the absence of any general phrase extending its provisions to any other action, local or *Page 430 otherwise, its scope cannot be extended by any process of construction, there being nothing in its language upon which such extension can be based.
"Where a `statute specifies certain classes of cases which may be brought against nonresidents, such specification, doubtless, operates as a restriction and limitation upon the power of the court.' Roller v. Holly, 176 U.S. 398, 406, 20 S. Ct. 410, 413,44 L. Ed. 520."
Our statute does not specifically enumerate the cases wherein summons may be served by publication and does contain the general clause that the statute applies "to all actions and proceedings in which personal service of summons is not required to be made in order to obtain relief."
Hence if the suit for specific performance of a contract to convey real estate is not one to enforce a "claim to" the title of real property, service on a nonresident by publication is still permissible under the first part of the quoted paragraph of section 9117 if it is the kind of action where personal service is not required in order to obtain relief. In other words, the first part of the added paragraph of section 9117 is sufficiently broad to include an action for specific performance of a contract to convey real estate and it must be construed as specifically naming such an action if it is competent for the legislature to make such an action one quasi in rem. In other words, the first part of that paragraph went as far as it was competent for the legislature to go and it seems to me the only question before us is, was it competent for the legislature to make such an action one quasi in rem where substituted service is permissible?
I think the answer to that question must be in the affirmative. Many courts throughout the country have so held. In Light v. Doolittle, 77 Ind. App. 187, 133 N.E. 413, 414, the court in so ruling said:
"Conceding that a suit for the specific performance of a contract to convey real estate is in personam and not in rem, with the result that a court having personal jurisdiction of the parties may entertain the suit in respect to land outside of the *Page 431 state, and that a court without personal jurisdiction of the parties may not entertain such suit in respect to land within its territorial jurisdiction, it does not necessarily follow that the Legislature of the state within which the land is situated does not have power to give such suit the character of a suit in rem or quasi in rem, so as to sustain the jurisdiction upon constructive service against a nonresident. Upon the contrary, the power of the state in this respect has been expressly affirmed in a number of cases which recognize the general principle that such a suit is in personam and not in rem. Boswell's Lessee v. Otis, 9 How. 336, 13 L. Ed. 164; Hart v. Sansom, supra, 110 U.S. 151, 3 S. Ct. 586, 28 L. Ed. 101; Arndt v. Griggs, supra, 134 U.S. 316, 10 S. Ct. 557, 33 L. Ed. 918; Single v. Scott Paper Mfg. Co., C.C., 55 F. 553; Adams v. Heckscher, C.C., 83 F. 281; Clem v. Given's Ex'r, 106 Va. 145, 55 S.E. 567; Felch v. Hooper, 119 Mass. 52; Horner v. Ellis, 75 Kan. 675,90 P. 275, 121 Am. St. Rep. 446.
"It seems to us that, notwithstanding the general principle that a suit for the specific performance of a contract to convey real property is a suit in personam and not in rem, so that jurisdiction cannot rest upon constructive service of process against a nonresident who does not appear, yet such a suit may, by statute, be given the character of a suit in rem or quasi in rem, so as to sustain jurisdiction upon this character of service even as against a nonresident. If a statute providing forservice by publication upon nonresident defendants speciallynames suits for specific performance, or describes the class ofactions in which such service may be had in terms which clearlyembrace suits for specific performance, that in itself issufficient to characterize the suit as one in rem or quasi in remfor this purpose." (Italics mine.)
In Garfein v. McInnis, 248 N.Y. 261, 162 N.E. 73, the court in construing the statute involved as covering a suit for specific performance said: "The language of the statute is sufficiently broad to cover an action for specific performance. Service without the state is sufficient to give the court jurisdiction to grant *Page 432 a judgment in rem binding upon a nonresident defendant so served." And continuing, the court said: "A court of equity, undoubtedly, may by constructive service, in accordance with statute, acquire jurisdiction over a nonresident in an action for specific performance whenever it has power, whether granted by statute or inherent, to make a decree which will result directly, or through conveyance by an officer, in the transfer of title or interest in land." It then referred to a statute identical with our section 9310 which in part reads: "Where a judgment directs a party * * * to convey real property, if the direction is disobeyed, the court, by order, besides punishing the disobedience as a contempt, may require the sheriff * * * to convey the real property, in conformity with the direction of the court." Civil Practice Act N.Y., sec. 979.
To the same effect is Hawkins v. Doe, 60 Or. 437,119 P. 754, 755, Ann. Cas. 1914A, 765, where the court among other things said: "A contract to purchase land would be a hazardous proceeding, if the purchaser were required to search the civilized world and sue each heir in the place of his residence, in case of the vendor's death, before performance, and we cannot concede that the law requires such an absurd proceedure."
In Bush v. Aldrich, 110 S.C. 491, 96 S.E. 922, 924, it was held that jurisdiction against a nonresident for specific performance of a contract to convey land in the state might be obtained by constructive service. The court said: "The subject of the action is real property within this state, and defendant has an interest in it, and the relief demanded consists, wholly or partly, in excluding him from any interest therein." The court in that case also stressed the fact that the court had the power to frame its judgment so as to vest the legal title to the land in plaintiff without the performance of any act from defendant.
The above cited cases are all referred to in an exhaustive note on the subject in 93 A.L.R. 621. The author of that note stated: "The rule adopted by the weight of authority is that such statutes embrace suits for specific performance of contracts *Page 433 to convey land in the state, and authorize in such suits constructive service of process (by publication or without the state) upon nonresidents * * * particularly where another statute provides that the property may be conveyed by the mere force of the decree ordering its conveyance, so that in decreeing specific performance the court may frame its decree in a form purely in rem * * *."
The rule which I think applies here was summarized by the author in the note in 126 A.L.R. 651, 667, wherein he said:
"However, under statutes expressly authorizing specific performance of a contract to convey land in a suit upon constructive service of process, or statutes which, in broadly specifying the character of suits in which constructive service may be had, embrace suits for specific performance, or statutes enabling equity courts to convey the local property of a nonresident through a master in chancery, or providing that the decree itself shall be sufficient to operate as a conveyance, suits for specific performance of contracts to convey local property of nonresidents have been regarded as sufficiently in rem or quasi in rem to justify assumption of jurisdiction by constructive service of process. Boswell's Lessee v. Otis, 1850, 9 How. 336, 13 L. Ed. 164; Waters v. Southern Brighton Mills, 1929, 168 Ga. 15, 147 S.E. 87; Light v. Doolittle, 1921,77 Ind. App. 187, 133 N.E. 413; Hollander v. Central Metal Supply Co., 1909, 109 Md. 131, 71 A. 442, 23 L.R.A., N.S., 1135; McVoy v. Baumann, 1922, 93 N.J. Eq. 638, 117 A. 725; Garfein v. McInnis, 1928, 248 N.Y. 261, 162 N.E. 73; Safarik v. Greenwald, 1903, 1 Ohio Cir. Ct. R. (N.S.) 219, 24 Ohio Cir. Ct. R. 607; Hawkins v. Doe, 1921, 60 Or. 437, 119 P. 754, Ann. Cas. 1914A, 765; Bush v. Aldrich, 1918, 110 S.C. 491, 96 S.E. 922; Clem v. Given's Ex'r, 1906, 106 Va. 145, 55 S.E. 567; Annotation in 93 A.L.R. 621."
The statutes in the above cited cases were not the same as ours but the outstanding difference between our statute and those involved in the above cited cases is that ours is broader than any of the others. It is evident from a reading of our *Page 434 statute that the legislature intended to go as far as it possibly could in authorizing constructive service on nonresidents and hence used the general language in the first part of the quoted paragraph from section 9117.
The case of Winnett Times Pub. Co. v. Berg, 82 Mont. 141,265 P. 710, 712, relied upon in the majority opinion, does not militate against the view herein expressed. In that case the court quoted with approval from the leading case on this subject, that of Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565, as follows: "Substituted `service may also be sufficient in cases where the object of the action is to reach and dispose of property in the state, or of some interest therein, by enforcing a contract or a lien respecting the same.'" (Italics mine.)
I think the court erred in quashing service of the summons and that the order should be set aside and annulled and defendant be allowed a reasonable time to further plead.
Mr. Justice Metcalf:
I concur in the above dissenting opinion of Mr. Justice Angstman.
Rehearing denied December 2, 1947.