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statements in the application, sufficient to work VENUE IN FORECLOSURE SUITS. an avoidance of the policy, must be of facts substantially material to the risk. In the recent case The General Rule as to Venue in Chancery. of Kansas Mutual Life Insurance Co. v. Pinson,
-As the foreclosure proceeding, in the form 63 S. W. Rep. 531, the Supreme Court of Texas held that an application for life insurance recited
we are bere considering, is essentially a suit that the applicant agreed that his statements to
in chancery' the rules which govern its venue, the medical examiner were true, and were offered have their source in that forum. The preto the company as a consideration of the con vailing doctrine is that all equity suits were tract. The policy stipulated that the insurance
once transitory. Hence, chancery would en. was granted in consideration of the statements
tertain a bill for specific performances or for and agreements in the application, “wbich are made a part of the contract." The applicant
redemption' where the defendant was served stated to the medical examiner that he had five within the realm, though the suit involved sisters, aged, respectively, 52, 50, 47, 45, and 36 land in a foreign jurisdiction. There are. years, but their ages were in fact, respectively, indeed, decisions in which a contrary opin49, 46, 44, 36, and 33 years. The court held that
ion is expressed, but the above is the doctrine the provisions of the policy constituted a warranty of the truth of tbe statements in the application,
prevalent in England when the law as to and that the discrepancy forfeited the contract. venue originated, and is also the one most in The court makes this peculiar statement of the harmony with the maxim that "equity acts law: "There is nothing in the facts stated in con in personam." nection with the question which will take this
Strict Foreclosure a Transitory Proceeding. case out of the general rule that the breach of a
– The original foreclosure proceeding shared warranty in an insurance policy works a forfeiture of the contract. The rule that a substantial per
this characteristic of the other remedies of formance of a warranty is sufficient does not chancery, for it was a proceeding in personam. apply in this case, and we are not called upon to
But the proceeding of which this was true say what would be the effect if the variance be
was not the modern foreclosure and sale; it tween the actual ages and the ages warranted was very slight. Lest this opinion might be mis
1 Price v. State Bank, 14 Ark 50. understood, we will state that we do not intend
Georgia: Clements v. Tillman, 79 Ga. 451, 11 Am. to assert that a literal compliance with such a St. Rep. 441. Maryland: Carroll v. Lee, 3 G. & J. Warranty would be necessary, but, in our opinion, (Md.) 604, 22 Am. Rep. 350; Keyser v. Rice, 47 Md. the facts do not justify the court in assuming that 203, 28 Am. Rep. 448, Tennessee: Newman v. Stuart, the discrepancy in the ages is so irrelevant as to
Cooke, 339. Virginia: Dickinson v. Hoomes, 8 Gratt. avoid the effect of the warranty. To the ques
(Va.) 410. Canada: “The foreclosure suit bas come
down from the chancery practice, and in that prac. tion, we answer tbat the provisions of the policy
tice there never was any tixed locality of venue ap. constitute a warranty of the truth of the state
plying to certain actions as in the common law prac. ments made in the application, and that the dis tice.” Seymour v. De Marsh, 11 Ont. Prac. Rep. 472. crepancy between the ages of the sisters as stated 3 Pern v. Lord Baltimore, 1 Ves. 444 (1750). and their actual ages caused a forfeiture of the * Kanawba Coal Co. v. Kanawba, etc. Coal Co., 7 contract of insurance." The court's reference to Blatcbf. (U. S.) 416; Cf. Cholmondeley y. Lord Clin. å rule of law stating that a substantial perform
ton, 2 Jac. & W. 134. . ance of a warranty is sufficient, fails to find sup
5 Dunn v. McMillen, 1 Bibb (Ky.), 409, the court port from the autborities. The latter are all
saying: “Analogous to this distinction at law be
tween actions local and transitory, it has been held in agreed that if the statements in tbe application,
chancery, that where the decree is to affect the land have by express agreement been made a part of
directly, as in the case of a suit brought for partition, the policy, and given the effect of warranties, or for dower, then the court cannot entertain juris. they must be literally complied with. Hartford diction only where the land lies.” Cf. Parker v. Insurance Co. v. Gray, 91 11. 159; Connecticut McAllister, 14 Ind. 12; Gill v. Bradley, 21 Minn. 16; Mutual Life Insurance Co. v. Pyle, 44 Ohio St. 19;
Collins v. Park (Ky.), 18 S. E. Rep. 1013; Cbapin v. Alabama Insurance Co. v. Garner, 77 Ala. 210;
Circuit Judge (Mich.), 62 N. W. Rep. 351; Neal v. Blooming Grove Insurance Co. v. McAnerney,
Reynolds, 38 Kan. 432.
6 Federal Cases: Pepnoyer y. Neff, 95 U. S. 714; 102 Pa. St. 335. It is only when the statements
Armdt v. Griggs, 184 U. 8. 316, 326; Deck v. Whit. have simply the effect of representations and are
man, 96 Fed. Rep. 873, 889. California: Fallon v. not made . -- of the montrac that a substantial | Rutler 91 Cal 94 22 Tlorida: Indge v. Foreuth. 11
was the ancient remedy of strict foreclosure. system, was wholly immaterial, so far as the This was in truth a suit in personam, because locus of the suit was concerned. And conthe relief obtained operated not to affect the versely the fact that the land itself might be land but to cut off the mortgagor's personal within the jurisdiction of the court would right or equity of redemption.? Now it was not authorize the court to entertain the bill because of this fact tbat the proceeding was | if the parties could not be served there.14 also transitory: and might be instituted in Such was the ancient law of venue in this any place where the court had jurisdiction of proceeding, and such is still the rule where the mortgagor's person. The fact tbat the strict foreclosure alone is sought. 16 mortgaged land might be situated in another Change Necessitated by Introduction of countyło or state or in a colony or depend Equitable Foreclosure, Proceeding Becomes ency, 18 having a different legal and judicial Either Local or Transitory.— With the intro? See Lansing v. Goelet, o Cow. (N. Y.) 346.
duction of the sale as a substitute for strict B "Originally it was regarded as transitory. In so foreclosure came a necessary change in the far as it is local it is so made by statute." Ladd, J.,
law as to the venue of the suit. For in order in McDonald v. Second National Bank, 106 Iowa, 617628.
to effect a sale the court must have juris9 England: Toller v. Carteret, 2 Vern. 494 (1705); diction of the res; title to land cannot be af. Paget v. Ede, 18 Eq. Cas. 118. Connecticut: Palmer
fected by a foreign tribunal, and hence a v. Mead, 7 Conn. 149, 167; Broom v. Beers, 6 Cono. 198 Io the latter case it is observed: “The plaint.
decree of foreclosure and sale in one state is if in error has taken several exceptions to the decree without validity as to land in another. 16 in question. The first is, that the suit was not
Again, the mere fact that the land is within brought in the proper county. Tbe title of land is not in question; and such suits bave always been con.
the jurisdiction enables a court to take cognisidered transitory. 2 Swift's Dig. 197; How. Mort. zance of a bill praying for a sale.? Hence 1018; Anun. 2 Chan. Cas. 244; Owen v. Granger, cited. Arguendo, 2 Day, 477; Owen v. Hatber, Superior jurisdiction of the high court, nor the English mortCourt, Hartford County, 1818; Stat. 34, tit. 6, cl. 1, gage laws extended to the island, but chancery entersec. 6 (Ed. 1808)." Iowa: McDonald v. Second Nat. tained the bill by virtue of the service in England. Bank, 106 luwa, 617, 623. Kentucky: Caufman v. 14 Grace v. Hunt, Cooke (Tenn.), 341. CJ. Avery s. Sayre, 2 B. Mon. (Ky.) 202; Owings v. Beall, 3 Litt. Holland. 2 Overt (Tenn.), 71; Owings v. Beall, 3 Litt. (Ky.) 103. New York: House v. Luckwood, 40 Hun (Ky ) 103. (N. Y.), 682; Union Trust Co. v. Olmstead, 62 N. Y. 16 House v. Lockwood, 40 Hun (N. Y.), 682. 729. Suuth Carolina: Trapier v. Waldo, 16 S. Car. 16 England: Grey v. Manitoba & N. W. R. Co., 276, 288. Tennessee: Grace v. Hunt, Couke (Tenn.), App. Cas. (Privy Council, 1897) 254, 66 L. J. P. C. 341; Avery v. Holland, 2 Overt (Teno.), 71.
(N. 8.) 66, where Lord Hobhouse observes: “As re10, aufman v. Sayre, 2 B. Mun. (Ky.) 202; Owings gards the question of sale, the decisions, both English v. Beall, 3 Litt. (Ky.) 103; Broome v. Beers, 6 Conn. and transatlantic, which bear on the jurisdiction of 198; Palmer v. Miad, 7 Conn. 157. Cf. Trapier v. courts of justice to deal with foreign land, bave been Waldo, 16 s. Car, 276, 383.
very carefully discussed in the courts below. It is u House v. Lockwood, 40 Hun (N. Y.), 632. This hardly necessary to go into that discussion again was a suit brought in New York for the strict fore. here. The thing asked for by the bill is a judicial closure of a mortgage on land in Illinois. The court sale of land partly within and partly out of the juris. said: “The subject matter of this controversy is diction, as an entire thing, and with specific direccapable of being wholly and completely disposed of tions by the court. It is impossible to do that." by a decree between those parties. They were per “The courts of our state will not recogoize the right sonally within the jurisdiction of the court when its of courts in other states to affect directly the title to process was served upon them, and the defendants real estate in the former. The most that can be done have appeared and served their answers contesting is to allow foreign courts having jurisdiction of the the right of the plaintiff to maintain the action. They parties to compel conveyances by the owner, and recare personally, therefore, subject to the jurisdiction ognize as valid titles so acquired. We are aware of of the court. And wbere that is the fact, and such no case that has gone so far as to recognize the jurisdiction has been acquired, there it bas been the validity of a deed given by a referee or other oficer practice of courts of equity to decree relief, disposing of court by authority of law in another jurisdiction. of the controversy, although the subject matter itself The rule seems to be that the courts of each state may be situated in apotber state or county." Seo have exclusive jurisdiction to settle the title to lands also Upion Trust Co. v. Olmstead, 62 N. Y. 729.
within its own limits." Farmers' Loan & Trust Co. 18 “Bills are often filed (in England) upon mortgages y. Postal Tel. Co., 65 Conn. 324. Indiana: Eaton, etc. in the West Indies.” Story, Equity Jurisprudence, R. Co. v. Hunt, 20 Ind. 457, 465. Kansas: Lichty v. seo. 1293. Thus Paget v. Ede, 18 Eq. Cas. 118, involved Martin, 11 Kan. 566; Union Trust Co. v. Olmstead, 62 the foreclosure of a mortgage of an estate in Nevis, N. Y. 729. one of the Leeward islands.
17 “As a sale of mortgaged land operates in rem, 18 Toller v. Carteret, 2 Vern. 494 (1705). This was cognizance over a bill for a sale may be exercised by a suit to foreclose the defendant's equity of redemp- the court of equity of the county in which the tion in Sark, one of the Cbannel isles, the whole of land lies, and would, upon common law principles, be which was subject to the mortgage. Neither the restricted to that local court, if the prayer for a sale
aroge the rule that a suit for both foreclosure where the mortgagor was not joined and the and sale might be brought either in the defendant, who was an assuming purchaser, county where the defendant resided or in that resided in another county than that in which in which the laod was situated.18
the land lay, it was held that the action could The Same Continued-Rule Made Stat- not be brought in the latter county, 24 and utory. - This doctrine wbich gave a dual the same was decided where the mortgaged venue to the foreclosure suit bas been en property included both real estate and chatacted into statates in several of the states, 19 tels.2 On the other hand, where the service and in these the mortgagee may elect to in. was by publication only, the suit was required stitute proceedings in the county either of the to be instituted in the county which was the mortgagor's residence or of the situs of the situs of the mortgaged premises.26 In Kenland. The same rule has been applied in the tucky the statute making the venue local ex. foreclosure of a vendor's lien20 wbich has been cepls decedents' mortgages, but this will not treated as an equitable mortgage.2 In Texas permit the institution of the suit in another the district court of the county where the county than that in which the land lies, unless note, secured by the mortgage, is payable, there is also an administration suit pending has jurisdiction of the foreclosure suit,” and there. 27 such was formerly the law in Iowa.23 But The Same Continued—Venue made Local,
but not Jurisdictional.-In some states the were the only grounds of jurisdiction." Caufman v. Sayre, 2 B. Mon. (Ky.) 202. Of. Owings v. Beall, 3
effect of legislation has been to render the Litt. (Ky ) 103, 107.
foreclosure suit nominally local but also to 18 Caufman v. Sayre, 2 B. Mop. (Ky.) 202, the court
permit the venue to be changed,28 or the suit saying: “A bill for ascertaining and settling the amount due, and for both for closure and sale, is
to proceed in another county than that of personal as well as local; and, therefore, in our opin. the res, unless such change is applied for. 29 ion, either the person of a necessary defendant or the
Under statutes of this class the venue is not, locality of the mortgaged premises may give jurisdie. tion in such a suit. It cannot be known until the governs though when the mortgage was executed final decree, wbether the suit may not produce the the venue was local only; since the change does not debt without a sale of the mortgaged estate."
substantially affect the rights of parties. Equitable 19 Alabama: Code, sec. 3421, construed in Reeves v. Life Ios. Co. v. Gleason, 66 Iowa, 47. Brown, 108 Ala. 35 South. Rrp. 824, where the court 24 Higgins v. Frederick, 32 Tex. 283. says: “When a bill is filed for the foreclosure of a 38 Asburst y. Gibson, 67 Ala. 684. mortgage on real estate, which is situated in one 26 Lowa L. & T. Co. v. Day, 68 Iowa, 459. county, and the mortgagor resides in another, under 27 Sbield v. Yellman, 100 Ky. 655, the court saying: section 8481 of the Code, the chaocery court of either “It is manifest that if an action was pending to settle district or county,-the one where the mortgagor re. the estate of a deceased person, and mortgage liens sides, or the one where tbe real estate or a material were set up, the court, where the personal repreportion thereof is situated,-has jurisdiction, and the sentative was qualified, alone having jurisdiction of complainant may elect, at his pleasure in whicb of such action, must also bave jurisdiction to decree a the two districts or counting he will file his bill. sale of the mortgaged property, although it may be Asburgt v. Gibson, 57 Ala. 586; Harwell v. Lebman, situated in another county. Hence the necessity for 72 Ala. 346.” Iowa: Cole v. Copper, 10 Iowa, 399; an exception to the general rule. In this case there Finnagan v. Manchester, 12 Iowa, 621. The statutes was no personal representative and no suit to settle has been changed since these cases were decided so the estate. Moreover, it was a suit to sell the bus. that the action is now purely local. See post, p. band's interest as well as that of bis wife's, and for Tennessee: Code (1884), sec. 3615. This section per bis debt, and we do not see how in a suit in Fayette mits the action to be brought in the county where the county his interest could have been sold, the action land lies, but it does not repeal the chancery rule as to him being clearly local.” wbicb authorized the proceeding where the mort. * Colorado: Fletcher v. Stowell, 17 Colo. 94, con. gagor could be found. Texas: Sayles' Civil Stat. struing Colorado Code, secs. 25, 29. Missouri: vol. 1, sec. 1198, subdiv. 11; Kinney v. MoLeod, 9 Chouteau v. Allen, 70 Mo. 290, 854. New Hampshire: Tex. 78. It seems that in Texas foreclosure may also Tucker v. Lake (N. H.), 29 Atl. Rep. 406. New York: be brought in the county where the note is payable. Code Civil Procedure, sec. 987. Brigbam v. Thompson, 12 Tex. Civ. App. 562, 34 S. 39 Colorado: Fletcber v. Stowell, 17 Colo. 94. New W. Rep. 858.
York: March v. Lowry, 26 Barb. (N. Y.) 197, 16 How. 30 Joiner v. Perkins, 6 Tex. 800.
Pr. 41, construing Old New York Code, sec. 126. 11 See, however, Edminster v. Higgins, 6 Neb. 365, North Carolina: Falls of Neuse Mig. Co. v. Brower, distinguishing this from an equitable mortgage. 106 N. Car. 440, construing Code, secs. 190 and 198.
* Brigbam v. Thompson, 12 Tex. Civ. App. 362, 34 North Dakota: Code, sec. 6244. So in old Dakota 8. W. Rep. 368.
territory. See Territory V. Judge, 6 Dak. 376. 23 Iowa, L. & T. Co. y. Day, 63 Iowa, 469; Equitable South Carolina: Trapier v. Waldo, 16 S. Car. 276, Lite Ing. Co. V. Gleason, 66 Iowa, 47. Of. Brecken. construing Code, sec. 149. Wisconsin: Pereles v. Al. ridge v. Brown, 9 Iowa, 896. A statute authorizingbert, 12 Wis. 666. The foreclosure suit is now purely the action to be brought where the note is payable | local in Wisconsin.
of course, jurisdictional.30 Even though the ute, which authorized the action to be brought proceerling be brought in another county either in the county where the land lay or in than that specified in the statute the defect that where the note was payable, it was held will be waived by the mortgagor's default, 31 that a suit in the latter county could not be or, in case be appear, by pleading to the transferred to the former unless the mortmerits,82 or even by failing to ask for a trans gagee should elect to proceed for a foreclos. fer of the cause to the proper county,33 and ure only.89 So the fact that a contract emif such transfer is made the defect is likewise bodies a mortgage will not entitle the cured.34 Some of the statutes, while provid defendant in action on such contract, but not ing for a local venue, employ language that seeking foreclosure, to a transfer to the s permissive only.85
county where the mortgaged land is located.40 Transfer of Cause to Another County. The transfer of a foreclosure suit to another Under a statute providing for a change of county is not authorized by a statute provid. venue upon the application of the mort- ing that special terms may be adjourned to gagor, the fact that other points are involved the chambers of any justice of tbe district, than those relating to the land itself will not and such transfer is erroneous though by & authorize a denial of the request ;36 and even further adjournment the hearing finally takes where the venue is fixed and jurisdictional place in the proper county.41 While the but the land lies in several councies, and it is denial of a change of venue is not always shown that one of them would afford the discretionary 92 the granting of an application most convenient place for the hearing, it is therefore is, in some jurisdictions at least, reversible error to refuse a change to such not subject to review by an appellate court. 48 country.37 It is likewise proper to grant a But the intention of the trial court to make change of vecue where it is shown by an undisputed affidavit that the judge to whom the
not be sustained. The showing made for the change
of venue was much stronger tban in the case of Gray application is made is a material witness for
v. Crockett, 35 Kap. 66, 10 Pac. Rep. 452, relied on by the applicant.88 Under the former Iowa stato counsel for plaintiff in error, and the order cbanging
the venue was rustained by the supreme court in that 80 Fletcher v. Stowell, 17 Colo. 94.
case. That affidavit did disclose the facts that the 81 Colorado: Fletcher v. Stowell, 17 Colo. 94. Da. plaintiff expected to prove by the district judge; and, kota: Territory v. Judge, 5 Dak. 275. Iowa: Mc.
wbile it is true that the examination of the judge as Donald v. Second Nat. Bapk, 106 Iowa, 517.
a witness did disclose that he was not possessed of 32 Chouteau v. Allen, 70 Mo. 290, the court saying:
knowledge of all of the facts set forth in the applica"After a court, which has general jurisdiction over a
tion for the cbange, yet he did te-tity to some facts certain class of causes, proceeds without objection to
material to the plaintiff in the trial of the case.” the hearing and determination of a cause belonging
89 "It will be observed that the note was payable, to that class, it is quite too late in this court to raise and therefore suable, in Linn county, whilst a suit objections to the irregular exercise of such jurisdic.
for the foreclosure of the mortgage, might, at least, tion; such objections, even if originally valid, lose be brought in Jones. Passing the questions upon the their force when waived by pleading to the merits." petition, as to whether it is in law or equity, and
88 Trapier v. Waldo, 16 S. Car. 276; Marcb v. Lowry, the two causes of action set forth, with a reference to 16 How. Pr. (N. Y.) 71; Pereles v. Aloert, 12 Wis. the case of Kramer v. Rebman, ante, 114, we tbink 666; Lane v. Burdick, 17 Wis. 92; O'Neil v. O'Neil, 54 tbere was no error in overruling the motion to Cal. 187; Gill v. Bradley, 21 Minn, 15; Beardsley v. cbange of venue. Both causes of action did not beDickerson, 4 How. Pr. (N. Y.) 81.
long to Jones county any more than to Linn, even 84 Tucker v. Lake (N. H.), 29 Atl. Rep. 406.
admitting that the second belonged to Jones. The 85 Missouri: 2 Wagner's Stat. sec. 4, p. 1005, con.
motion should bave been that the plaintiff elect upon strued in Chouteau v. Allen, 70 Mo. 290, 354. Tennes.
which to proceed, and if she elected the bill to foresee: Code (1881), sec. 3515. Texas: Sayles' Tex. Civ.
close a motion for a change would have been proper. Stat, sec. 1181, subdiv. 11.
The court could not send both to Jones." Breckin. 36 Falls of Neuse Mig. Co. v. Brower, 105 N. Car., ridge v. Brown, 9 Iowa, 896. 440.
40 Max v. Harris (N. Car.), 34 S. E. Rep. 437. 87 Thompson v. Brandt, 98 Cal. 155.
41 Gould v. Bennett, 59 N. Y. 324. 88 Spencer v. Iowa Mortg. Co. (Kan. App.), 42 Thompson v. Brandt, 98 Cal. 156; Falls of Neuse 50 Pac. Rep. 1094, the court saying: “The action Mfg. Co. v. Brower, 105 N. Car. 440. was begun in Decatur county, and on application of 43 Tucker v. Lake (N. H.), 29 Atl. Rep. 406, the plaintiff a change of venue was granted to Thomas the court says: “Whether justice required the order county, on the ground that the judge of the district to be made was a question of fact that was decided court of Decatur county was a material witness on affirmatively at the trial term, and the decision is not behalf of the plaintiff. This action of the court is the reviewable here. Hazen v. Quinby, 61 N. H. 76; ground of the first assigament of error. It is con. Garvin v. Legery, 61 N. H. 108; Gagnon v. Connor, 64 tended that the showing made therefor was not N. H. 276, 9 Atl. Rep. 631; Holman v. Manning, 65 suficient to sustain the order. This contention can. | N, H. 92, 18 Atl. Rep. 746."
such an order will not be irferred from mere and the courts of such other county are withterms of the order of reference to one who out jurisdiction to render a decree therein, 54 resides in another county.44
or even to order a purchaser at the sale in Venue made Local and Jurisdictional.- | the proper county to show cause why he has The tendency of legislation in the United failed to comply with his bid.55 Usually an States has been steadily towards restricting exception is made where the property is the venue of the foreclosure suit to the county located in different counties but this will be which forms the situs of the mortgaged land, discussed in a subsequent section, 56 The and such is now the law in a majority of our objection that the venue is laid in the wrong jurisdictions, 4 and the rule has been so ex | county is available by way of a motion to tended as to include the foreclosure of a dismiss or demurrer,57 since it should appear vendor's lien46 and a land contract ;47 indeed, on the face of the bill ;68 when not so appearso complete bas been the change from its ing, however, it may, under the chancery original character in this regard that a New practice, be raised by a plea in abatements9 York judge, losing sight apparently of its and in the Georgia system of foreclosure by history, declared of the foreclosure action as rule nisi the objection is not too late when early as 1855 that "it is in its nature local.”? 48 first urged at the trial.60 As we have already seen, 49 such was not its Venue of Suit Involving Mortgages in More nature once, and so far as this is now the case Than One County.— It has already been it has become so by statutes, 50 which gener- shown that the statutes making the foreally specify the county where the mortgaged closure suit local frequently require it to be property or “a part thereof” is located, as brought in the county where the mortgaged the only proper place for bringing the suit.51 land, “or a part thereof,” is located. This
The Same Continued.—The result of such alternative clause is intended to govern cases enactments has been to render the venue of where the property is situated in different foreclosure not only local but jurisdictional. 52 counties, and as to such the venue may usually The pendency of the suit in any other county be laid in any of them. The same rule has been than that in wbich the land lies is forbidden, 63 applied in the foreclosure of deeds intended 44 Wheeler v. Maitland, 12 How. Prac. (N. Y.) 35. as a mortgage and relating to parcels of land
45 So also in Ontario. See Rules of Practice, 529; in more than one county. 62 A bill showing Hunter on Foreclosure (1899), p. 17, changing the
such diverse location does not on its face doctrine of Seymour v. DeMarsh, 11 Ont. Pr. Kep. 472.
disclose want of jurisdiction though it fail to 46 Southern Pac. R. Co. v. Pixley, 103 Cal. 118. distinguish between the parts of lands in the 47 Fraley v. Marcb, 68 N. Car. 160. 48 Wheeler y. Maitland, 12 How. Pr. (N. Y.) 35, per
respective counties,63 nor is it material Peabody, J.
that not all of the defendants are residents 49 See ante, paragraph first of this article.
of the county where the suit is pending. 64 80 McDonald v. Second Nat. Bank, 106 Iowa, 517,
In California not only the hearing but the 523.
51 See Wagener v. Swygert, 30 S. Car. 296, 302; Falls of Neuse Mfg. Co. v. Brower, 105 N. Car. 440; cases 64 Rogers v. Cady, 104 Cal. 288. cited in note 1 supra.
66 Kamipisky v. Trantbam, 45 S. Car. 8, 22 S.E. Rep 52 California: Rogers v. Cady, 104 Cal. 2-8; Fritts 746. This conclusion was reached notwithstanding a v. Camp, 94 Cal. 393; Campbell v. West, 86 Cal. 197. statute wbich authorized foreclosure action to be The early case of Vallejo v. Randall, 5 Cal. 461, to the heard and determined in chambers and process to be same effect was overruled in Watts v. White, 13 Cal. issued therein. 321, which latter was decided, however, before the 56 See next section. adoption of tbe constitutional clause requiring the 57 Hartwell v. Lebman, 72 Ala. 344. suit to be brought at the situs of the land. Iowa: See 68 “It was necessary to give the court jurisdiction Chadbourne v. Gilman, 29 Iowa 181. But Cf. contra, to enter this decree of foreclosure, that the plaintiff McDonald v. Second Nat. Bank, 106 Iowa, 517. New should prove that the land was situated in the county York: Gould v. Bennett, 59 N. Y. 124. South Caro. of Orange; and, in the absence of an allegation of the lina: Kaminisky v. Trantham, 45 S. Car. 8, 22 S. E. fact in his complaint he was not entitled to prove it. Rep. 746. Wisconsin: Beach v. Summer, 20 Wis. 274. Campbell v. West, 86 Cal. 197."
63 “Tbis language is too clear and precise to admit 69 Harwell v. Lebman, 72 Ala. 344. of any doubt as to the intention of the legislature. 80 Hackenhill v. Westbrook, 53 Ga. 285. That intention indubitable was, to prohibit the 61 See ante. bringing of an action to foreclose a mortgage in any 62 Lomax v. Smyth, 50 Iowa, 223. county other than the one where the mortgaged 63 Bolling v. Munchus, 65 Ala. 558. property, or some portion of it, was situated.” Beacb 64 Wagener v. Swygert, 30 S. Car. 296; Hendrix v. v. Sumner, 20 Wis. 274.
Nesbitt, 96 Ky. 652.