Page:Harvard Law Review Volume 9.djvu/477

449 WHAT ARE DECREES IN PERSONAM f 449 It does not follow that her courts can. They may have no equitable jurisdiction at all, so we have to inquire whether the vendor's own control of the legal title suffices. He therefore brings his bill, not for legal damages, but for true equitable relief, viz. full specific performance, tenders in his bill, and places on file a correct deed of the Brunswick, asks the approval of his action by the court as and for a performance on his part of his whole duty, and an order of execution for his price. Such approval must be by decree, and we are brought to the question whether this decree is objectionable as being in rem^ or as being such a decree in personam as must not be made against a foreigner. Well, it is not in rem. The court conveys no title. The plain- tiff alone does whatever looks in that direction, and places with the clerk the title of the Brunswick for the acceptance of the English- man. The court merely inspects, sees that the plaintiff is fairly doing what devolves upon him to do, as it would verify the per- formance of any other preliminaries, puts its determination in form of a decree, orders the clerk to hold the deed for defendant's acceptance (if he ever claims it) and to issue execution for the cash. Perhaps the title does not pass at all. Perhaps it never does by ^ny tender. It is not material to the principles of equity that the title should actually vest in the Englishman, but it is material that the plaintiff should do his duty by tendering. The actual title might not pass if the foreigner had been caught on the wing in a transit across Massachusetts by a personal tender and citation. Yet in that case the court would certainly act, and its jurisdiction over subject and person would be unquestioned.^ Jailing for contempt is not accepting the filed deed, and is not available after the foreigner's aforesaid transit has been completed. In short, does equity really care whether he accepts or not? We will inquire by and by. But in Merrill v. Beckwith,^ the court con- sidered that it could not " compel him to accept a conveyance," and, the suit being in personam ^ " could not bind him personally by its decree." This brings us before long to the question of much practical interest to vendors: Is any acceptance necessary? Is any decree to accept necessary? Is it necessary to bind the foreigner person- ally to anything in our hotel suit brought by a vendor? We shall not discuss suits to compel a foreign vendor to execute a conveyance, which would be an act of power in personam^ and to 1 Thompson v. Cowell, 148 Mass. 552. 2 jg^j Mass. 505.