(dissenting):
I cannot concur in the disposition of this case by my associates.. The opinion of the court states that the first question “ then is, can this action be maintained against the defendant individually.” .It seems to me that the first and only question in the case is, can this action be maintained to foreclose the lien of the plaintiff on the securities mentioned in the transfer or pledge made by Collins, whereby he substituted those securities in place of the bonds of the plaintiff that 'he had misappropriated by pledging them as security for his note ? Assuming that by that transfer or agreement to substitute, a lien was created in favor of the plaintiff on these securities, it seems to me clear. that she has the right to resort to a. court of equity to foreclose that lien and require the application. . of these securities to the redemption of her property pledged by Collins.
■ The rule is, as stated in the American and English Encyclopaedia, of Law (Yol. 18, p. 667): “ Outside of agreement by the parties, and the operation of statute law, the right of the pledgee to foreclose-the title of the pledgor is enforced by filing a bill in chancery and having a judicial sale under a regular decree in foreclosure, or by selling without judicial process upon giving reasonable notice to-redeem.” And in Briggs v. Oliver (68 N. Y. 339) Andrews, J., says: “■ In case of a pledge, the right of a pledgee to come into-equity to obtain a decree for the saje of the pledge exists, although, a valid sale may be made without judicial action or decree.”
I do not understand it to be questioned but that plaintiff had such, a cause of action, and that such a cause of action is transitory, not' dependent upon the residence of the parties. The plaintiff is a resident of this State, and the stock upon which the lien exists is within the jurisdiction of the court. The plaintiff having a plain right: to commence an action to foreclose her lien upon the property,, she makes the person in whose custody the property is, who claims, to own it as a foreign executor, a party defendant. The owner of the property, who created the lien, is dead. He cannot be made a party to the action. His title to the property has vested in the-defendant, his executor, under letters issued by a foreign State, and. this title to the property is set forth in the complaint, and defendant’s appointment as the foreign executor and the claim under which *290he holds the property are alleged. ' The pleadings themselves clearly show the title he claims, and under which he threatens to remove the property from the State and to compel the plaintiff to resort to :a foreign tribunal to enforce her right in the property over which she has, a lien.
It seems to me that it is entirely immaterial whether or not the. ■defendant is described in the summons as the executor of Collins. The fact that he is in possession of the property, that he claims to ■own it'and the right, to dispose of it, and that such claim arises because of the grant of letters of administration in a foreign State, to me is a plain statement of his title'to the property and his interest therein. The cause of action having existed in favor of the plaintiff, the plaintiff having made a party to the action all persons interested or claiming an interest in the property, the plaintiff being a resident of this State, the property being within this State, the defendant being engaged in business here, and having been served with process in this State, I can see. no reason why the court should refuse to entertain the action, and to give the plaintiff the relief to which it is conceded she is entitled. The opinion of the court holds' that she, is bound to go to the State. in which this defendant was appointed executor and obtain there the relief to which she is entitled. Upon what principle, however, c'an a resident of this State be refused relief because a foreign State has appointed an executor who has an interest in the property sought to be affected by the decree? The fact that this foreign State adjoins our State is hot material. The court would be bound to follow the same course if the decedent had been a resident of Australia, Africa or Asia; and thus a citizen and resident of this State would be compelled to resort to a court of any foreign country of which the deceased happened to be a resident to enforce a lien on securities in his favor created in this State, and when the property subjected to this lien is located here, and the court has jurisdiction over the person of the individual in whom the legal title is vested. Such a rule, I believe, has never before been enforced in any court.
The general rule that letters testamentary, or of administration, give no authority to sue or be sued in a jurisdiction other than that :in which the letters were granted is not disputed. The right, however, of such a foreign executor or trustee to resort to the courts *291of another jurisdiction, in which property belonging to the estate of which he is executor or trustee is located, to recover possession of such property, is well settled, and in such an action he does not sue in his representative capacity, but in his own right as the legal owner of the property. It might be necessary for him upon the trial of such an action to prove the will and put it in evidence for the purpose of showing his title, but it would not have been necessary for him to have the will admitted to probate in this State. (See Toronto General Trust Co. v. C., B. & Q. R. R. Co., 123 N. Y. 45.) His right to sue depends upon his being the legal owner of the property, the title to which has vested in him by virtue of the decree of the foreign court granting the administration.
Now what is the position here? The plaintiff has a lien upon certain specific property in this State, said property being held by the defendant who has the legal title in consequence of the grant of letters testamentary by the courts of New Jersey. The plaintiff having an equitable lien upon such property, comes into the courts of this State making the defendant, the legal owner of the property, a party to the action, and asking for the enforcement of such lien. If this property had been in the possession of the plaintiff,. the defendant, as the legal owner of the property, not as executor of the estate, could have sued her to recover possession, upon the principle stated in the case above cited. The position being reversed, and the defendant as such legal owner being in possession of the property and claiming to own it, with power to maintain as such owner an action in the courts of this State to recover its possession, why is he not the proper and only necessary party in an action to enforce a lien upon such specific property and have it applied to the satisfaction of such lien ? The distinction between this cause of action and the cause of action by which a claim against the estate generally is sought to be enforced seems to me clear; and while I agree with my associates that an action against, the estate to recover a claim against it cannot be maintained here in the absence of ancillary letters issued in this State, I think the cause of action that asked for the enforcement of this equitable lien upon this specific property was properly brought and that the defendant was á proper party defendant individually; and certainly as there is no objection in the answer to the non-joinder of the representative of the estate, *292the objection that snch representative is not a party to the action has been waived.
The result of the principle- adopted' by the majority of the; court is this: We will allow a- non-resident executor to come into the courts of this State and’recover possession of property the legal title to which was vested in the testator without requiring him to receive authority to act from the' courts of this state. He having thus obtained snch possession ■ as owner, we refuse to allow one of our own citizens to enforce a lien which she has upon such property, sending her to the foreign jurisdiction under which the executor was appointed. In other words, the title which the executor acquired by the issue of letters testamentary is sufficient to enable him to sue in the courts of this State for the recovery of the property which had belonged to his testator, but is not sufficient to pub- ’ ject him to an action by which it is sought to recover from him such property. From this I dissent. .
I am of the opinion, therefore, that the judgment should be modified by directing that the property mentioned in the third ■ clause of the judgment, which is the property described in the instrument of March 14, 1889, be sold, and the proceeds thereof applied towards the payment of Collins’ note to the bank, and that the balance of the property described in the complaint be delivered to the defendant.
Judgment reversed and complaint dismissed, without costs.