The justice of the complainant's claim cannot be for a moment doubted, but the remedy by 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 be satisfied are situated without the limits of the State, and most of those persons concerned in interest are nonresidents.
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 *Page 197 jurisdiction of the court, as where a defendant has contracted to convey lands he may be compelled to do so by executing a deed; where he is a trustee he may be compelled to execute the trust, although the trust relates to lands without the limits of the State. The court proceeds against him personally, but will make no 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; although the person in whom the legal title is is a nonresident they may proceed in rem, 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 (377) 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 sellvirtue officii, or that the power to sell has devolved upon him by statute, 21 Hen. VIII, 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 executors having refused to sell, he could sell by virtue of any statute or act of their Legislature authorizing a sale in such cases, as the statute of the 21 Hen. VIII 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 *Page 198 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 (378) 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 handwriting of the deceased, 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 the 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 nonresidents, 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 when 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 in personam, 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 Thomas H. Blount to sell the lands in Tennessee. *Page 199