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34 Cornell L. Q. 29 (1948-1949)
Actions in Rem

handle is hein.journals/clqv34 and id is 57 raw text is: ACTIONS IN REM GEORGE B. FRAASER, JR. Even though courts have been entertaining actions in rem for cen- turies, there is still much uncertainty about them. To define actions in rem is not difficult; they are legal proceedings directed against property itself in order to reach and dispose of the property or of some interest there- in. But not all phases of a legal proceeding can be determined from just a definition. For example, how are actions in rem distinguished from other types of actions? What is considered property for the purposes of actions in rem? Can only the title to the property be litigated, or can other issues be determined in the same action? How are such actions commenced? What is the effect of decrees in such actions? To answer these questions resort must be had not only to a definition of actions in rem but to the basic principles underlying such actions and, as is in- evitable in legal writing, to cases themselves. This paper proposes to answer these questions about actions in rem by this method. I. Nature of Actions In Rem Actions in rem, being proceedings directly against property, are a mani- festation of the principle that a state has the power to determine the title, status, or condition of property within its borders.' But this power may not be arbitrarily exercised; it is limited by a second principle, which is, that the interests of persons in property may not be cut off without attempting to provide such persons notice and an opportunity to be heard.2 Thus, for a court to act in rem, certain preliminary steps must be taken. When these have been taken, the court is said to have juris- diction to act in rem, or jurisdiction in rem. a. Actions in Rem and Actions in Personam. In discussing actions in rem it is usual to distinguish them from actions in personam. This dis- tinction is necessary because the object of an action in rem is property and the object of an action in personam is a person, and because the steps pre- liminary to the acquisition of jurisdiction over property are different from those to be taken when the object of the action is a person.8 How- ever, the distinction between actions in rem and actions in personam is 1American Land Co. v. Zeiss, 219 U. S. 47, 31 Sup. Ct. 200 (1911); Arndt v. Griggs, 134 U. S. 316, 10 Sup. Ct. 557 (1890); See RESTATEMENT, CoNF=cT oF LAWS § 98 (1934). 2Windsor v. McVeigh, 93 U. S. 274 (1876); Boswell's Lessee v. Otis, 9 How. 335 (U. S. 1850) ; See RESTATEMENT, JUDGMENTS § 6 (1942). 8Thompson v. Steamboat Julius D. Morton, 2 Ohio St. 27, 30 (1853); See Woodruff v. Taylor, 20 Vt. 65 (1847). To be complete courts should subdivide actions in rem into actions in tractabilem and actions in intractabilem because the method of acquiring jurisdiction over tangible property is different from that of acquiring it over intangible. 29

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