execution. This was in New York: and when afterwards the question was raised whether Leary had a right to redeem the real estate, (under a general statute of that State which allowed redemptions1 on sale of real estate under execution,) the court of Common Pleas denied the right on the ground that the statute applied to sales under actions in personam but not to actions in rem. This ruling was supported by the citation of other cases. 3 Proceedings by the mechanic to have judgment against his employer with a recognition of his lien and an order enforcing it, under the laws that prevail on the subject in most of the States, are quasi in rem. Mr. Phillips, (in his work on Mechanics' Liens,) states that they are only proceedings quasi in rem; and gives the true reason: The suit is always inter partes and confined to such parties."5 The decree affects only those who have been made parties to the action, though inferior liens are superseded. § 620. Other Liens. Liens of landlords, hotel keepers, vendors, and others not heretofore mentioned, are generally vindicated by personal actions with a prayer that the privilege upon the thing bound be recognized in the judgment sought. The landlord, proceeding against his tenant, to obtain a judg 1 N. Y. Rev. Stat. ii. 370. 2 See Randolph v. Leary, 3 E. D. Smith, 637. 3 See cases there cited; especially Cronkright . Thomson, 1 Id. 661 and 4 Abbott's Prac. R. 205; Mechanics' Lien Law of New York City, of 1833, repealed by that of 1875; Heckman v. Pinkney, 81 N. Y. 211. McGraw. Bayard, 96 Ill. 146; Hickox v. Greenwood, 94 Ill. 266: Cairo & Vin. R. R. Co. v. Fackney, 78 Ill. 116; Hamilton v. Dunn, 22 Ill. 259; Clark v. Boyle, 51 III. 104; Hamilton v. Naylor, 72 Ind. 171; Woollen v. Wishmer, 70 Ind. 108; Marvin v. Taylor, 27 Ind. 73; Redfield v. Hart, 12 Iowa, 355; State of Iowa v. Lake, 17 Iowa, 215; Jones v. Swan, 21 Iowa, 184; Noel v. Temple, 12 Iowa, 276; McIverny c. Reed, 23 Iowa, 410; Stockwell . Carpenter, 27 Iowa, 119; Clifton v. Foster, 103 Mass. 233; Rose v. P. & B. Works, 29 Ct. 256 Goodman . White, 26 Ct. 317; Coleman . Freeman, 3 Geo. 137; Hilliard v. Allen, 4 Cush. 532; Canal Co. v. Gordon, 6 Wall. 561; Jackson v. Davenport, 20 Johns. 537; Kendall v. McFarland, 4 Oregon, 292; Wharton e. Douglass, 92 Pa. St. 66. 5g 306, and case cited there by him: McKim v. Mason, 3 Md. Ch. 186. 6 Holland v. Jones, 9 Ind. 495; Brown . Wyncoop, 2 Blatchf. 230; Shaw 7. Hoadley, 8 Id. 165; Williams v. Chapman, 17 Ill. 423; Kimball v. Cook, 6 Ill. 427; Kelly v. Chapman, 13 Ill. 534. ment for rent due, or in certain circumstances, for rent becoming due, may, under the statutory regulation which prevails in some of the States, obtain provisional seizure of the goods upon which his lien rests. He usually prays not only for judgment in a certain sum against the defendant, but also for a judicial recognition of his lien against the goods; and this feature of the case renders it quasi against the goods.1 Where there is a lien to be enforced there is a jus ad rem susceptible of vindication by the actio in rem; the property is an indebted thing, irrespective of the owner, as fully as in as in any case; the decree might be made against the thing only: provided, that such procedure were authorized by the expression of the legislative will. But, in the absence of such authorization, the procedure must be personal, conducted contradictorily between the plaintiff and defendant, with no movement against the thing, but with the purpose of having the lien enforced by execution, which is not an action against property.2 § 621. Mixed Actions. The two distinct forms of action should not be mixed. When a thing is seized; charged with guilt, hostility or indebtedness; and condemned as bearing primary responsibility, the action against it is not the less one in rem because some pleader has asked, and some court has granted, a personal judgment against the owner of that thing, at the same time.4 5 It was formerly queried whether a libel for salvage could be both in rem and in personam, but it is now held that salvors cannot, in the same libel, proceed in rem against a vessel, and in personam against the consignees of the cargo. 1 The landlord's lien, in the District of Columbia, has been held good without possession. Beall v. White, 4 Otto, 382. But, see Webb e. Sharp, 13 Wall. 14, and Fowler v. Rapley, 15 Wall. 328. 2 Dorsey's Appeal, 72 Pa. St. 192; Wilson e. Reuter, 29 Iowa, 176. 3 Cit. Bank v. Nantucket Steamboat Co., 2 Story, 16; The Merchant, Abb. Ad. 1; The Ogdensburg, 5 Mc Lean, 622; The Atlantic, 1 Newberry The Zenobia, Abb. Ad. 48; Newell v. Norton, 3 Wall. 257. 5 Bondies v. Sherwood, 22 How. 214. The Sabine, (11 Otto,) 101 U. S. 384. See Newell v. Norton, 3 Wall. 257. If salvors cannot thus mix incongruous actions, ought not the same rule to apply to all others? "Proceedings in the nature of a proceeding in rem,” is a phrase often used by the court. It may be found applied to cases where the proceeding is as good a model of the action in rem as the books afford. It may be found applied to causes which have not the first true element of that action. It is always used in a vague way; and tends to confusion rather than perspicuity. § 622. Sequestration, under the law of those States which use the process, is not an action in rem. It is a civil law seizure, but not a proceeding against anything. It is called judicial sequestration to distinguish it from what was known as a deposit of a disputed thing, by contending parties, into the hands of a third person called a sequestrator, because the seizure is by order of the court. 1 Judicial Sequestration. Judicial sequestration, though usually exercised against movables, is also applicable to immovables. The court takes possession of a chattel or of real estate, as the case may be, upon application of the party claiming to have the right to it; but this sequestering, or taking possession, is in aid of the personal party who may be decreed the right of possession. The writ of sequestration, therefore, should be considered as auxiliary to a personal action. Judicial sequestration differs from attachment proceedings in rem in this important particular: its object is not to have the res condemned, while that of such attachment is to have the res condemned. Therefore, though in sequestration we seize the res, yet we institute no action against it. 1 Daugherty v. Vance, 30 La. Ann. part ii, 1246; Lemann v. Truxillo, 32 (La.) Ann. 65. CHAPTER LVII. THE FACT UNDERLYING THE FICTION OF THE RESPONSIBILITY OF THINGS. § 623. Divestment of Personal Interests. 636 637 Personal inter ests are always passed upon when property is condemned. This is no legal fiction. This is a significant fact which underlies the fiction of the judicial declaration when property is condemned as a personified defendant. In this fact may be found the source of many difficulties and misapprehensions concerning the action in rem; and perhaps here also may be found the key to the solution of important problems involved in that remedy. It is impossible that the new title, free from all incumbrances can arise by reason of an absolute condemnation, without the previous displacement of all pre-existing rights and interests in or to the property condemned. Not only the former proprietary title, but the interests of innocent lien holders must necessarily be adjudicated. The fact that personal rights and interests are passed upon by courts which have no jurisdiction over the persons who own those rights and interests; who are not cited as parties defendant; who may not be susceptible of being personally cited; who are informed of the process, against the impleaded property, only by publication; who may be domiciliated beyond the court's district or state, or even in a foreign country; who are treated, in all cases, as though they lived beyond the jurisdiction; who can appear only as voluntary claimants or intervenors; who cannot become parties-defendant in the usual sense of the term, and whose interests, when consisting of liens resting upon the seized thing, may not be charged with guilt, hostility or indebtedness nor be amenable to any such charge, is repugnant to all sense of justice when considered alone without its relations. The injustice seems the more apparent when the interests of non-resident lien holders are kept in view; for the charge of guilt, hostility or indebtedness, made in the libel against the res, is not made against any lien resting upon the res; and therefore the fiction of responsibility is inapplicable to such interests. The seeming hardship is yet more repugnant when such foreign lien holders have not been really reached by the published invitation to appear, and when the presumption that they have been thus reached is evidently violent. It is true that the obligation of the personal debtor is not cancelled by the condemnation of lien-bearing property, but the previous lien holder finds himself but an ordinary creditor after its condemnation. He has lost the security which he had before the condemnation of the property upon which his mortgage or other lien rested. § 624. Divested by Courts Without Jurisdiction Over the Persons Concerned. The anomaly is presented of a court having power to pass upon interests, against which there are no charges, while it has no jurisdiction over the person in whom those interests are vested. A citizen, not sued; or a foreigner, not within the bailiwick, not sued and not susceptible of being sued; both, without any proceeding directly against their property rights, find themselves divested of their interests by a decree of court rendered against the property of some other person. |