Tigrett v. Taylor

MoCLELLAN, j.

(dissenting).- — In order to reverse the decree of the learned chancellor, who affirmed *306by his ruling the jurisdiction of the chancery court of Colbert county, as invoked in this bill, it is necessary for this court to assume the purely legislative function of amending Code, § 3054, which, in the presently pertinent particular, is thus written in the codification: “Courts of chancery must take cognizance of cases in equity: * * * 2. Against non-residents Avhen the object of the suit concerns an estate of, lien, or charge upon, lands, or the disposition thereof, or any interest in, title to, or incumbrance on personal property Avithin this state, or where the cause of action arose, or the act on Avhich the suit is founded, was to have been performed in this state.”

The amendment of the quoted statute effected by the ruling now made is to interpolate before the word “object,” in the quoted statute, the words “chief, main, or paramount,” or to ingraft a proviso thereon that if the object of the suit only incidentally or collaterally concerns an estate of, lien or charge upon, lands, etc., the chancery courts shall not have jurisdiction thereof. I am unwilling to approve the method or the result.

In Sayre v. Elyton Land Co., 73 Ala. 85, 98, delivered 30 years ago, where the quoted statute was under review, Chief Justice Brickell said: “The jurisdiction of a court of equity over defendants not residing in the state, and consequently not subject to be personally served with process, is statutory and limited. It is not in every case of equitable cognizance against such defendants that the court may take jurisdiction. The statute defines with precision the cases in which the court may intervene. The object of the suit must concern lands or personal property situate in the state,” etc.

The definitive word, in presently important connection, in the statute is “concerns.” It is not provided *307that tbe title, interest, or estate in or tbe lien or charge upon, lands shall be tbe sole object of tbe suit, nor tbe chief, main, or paramount object of tbe suit. It is sufficient, for jurisdictional purposes in that connection, that tbe object of tbe suit concerns lands, etc.

When tbe statute was considered in the Elyton Land Co. Case, supra, it was not thought proper to pronounce, in its interpretation, that it did not mean what its unambiguous language only imports. .“Concerns,” as there employed, obviously means “relating or pertaining to” an estate of, lien or charge upon, lands, etc. It is too plain to admit of doubt that tbe statute’s provision, in this regard, does not hinge or condition tbe jurisdiction of equity upon a contingency. If one must be entitled, as of palpable right, against a non-resident, to an interest in, or lien or charge upon, etc., there would be no need to provide for a forum to determine that which is not contestable.

My opinion is the decree should be affirmed.