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court decreed that the marriage between the | The grounds relied on are that the court did
defendant in error and the plaintiff in error not acqnire such jurisdiction of the person of
be dissolved, and that the defendant in error plaintiff in error as authorized it to enter
recover of the plaintiff in error the sum of the money decree against him, and did not
$5 a week as alimony, and the sum of $50 have jurisdiction to enter any decree affect-
solicitors' fees, together with an undivided ing real estate in the state of Ohio.
one-third interest in a house and lot belong. That the court had no such jurisdiction
ing to the plaintiff in error, situated in the of the person of plaintiff in error as au-
the city of Piqua, county of Miami, and state thorized a money decree or decree in perso-
of Ohio. From the above decree the plaintiff nam seems to be settled by the case of Cloyd
in error sued out a writ of error from this v. Trotter, 118 Ill. 391, 9 N. E. 507. In that
court to reverse the decree in so far as it case a bill was filed to remove a cloud
relates to the recovery of $5 per week as from real estate sicuated in this state.
alimony, $50 as solicitors' fees, and an un- James C. Cloyd, the defendant to the bill,
divided one-third interest in a house and lot resided in the city of New York, and serv-
belonging to plaintiff in error, situated in ice was had upon him in that city by a copy
the city of Piqua, county of Miami, and of the bill, and notice, as in the case at bar.
state of Ohio. The record shows plaintiff The defendant defaulted, and the relief
in error had no property within the state. I prayed was granted, and a judgment for
what it could not itself and without its inter- grant effective relief by a decree operating sole.
vention accoinplish. This principle lies at the ly against the person in a necessary condition
foundation of all of the cases subsequently cit. of the jurisdiction of a court of equity over a
ed in this note which uphold the jurisdiction of suit, the purpose of which is to affect real prop-
a court of equity of one state or country over a erty in another state or country. That, how-
suit the avowed purpose of which is to affect ever, is not the only condition of such jurisdic-
real property in another. For a general state. tion. To warrant the court in entertaining such
ment of the principle, see especially the cases a suit, it must also appear that the case, inde-
cited in infra, II., a.

pendently of the location of the land beyond The Lord Chancellor (Nottingham), in Ar- the territorial jurisdiction, is a proper one for glasse v. Muschamp, 1 Vern. 75, thus quaintly equitable intervention. Chief Justice Marshall replied to an objection that a court of equity defined this indirect jurisdiction as follows: "In of England had no jurisdiction of a suit for re- a case of fraud, of trust, or of contract, the julief from a fraudulent conveyance of land in risdiction of a court of chancery is sustainable Ireland: “This is surely only a jest put upon wherever the person be found, althoughlands the jurisdiction of this court by the common not within the jurisdiction of that court may lawyers; for when you go about to bind the be affected by the decree." This statement of lands, and grant a sequestration to execute a the jurisdiction has been very frequently quoted decree, then they readily tell you that the au. and approved in subsequent cases. See, for exthority of this court is only to regulate a man's ample, Carpenter v. Strange. 141 U. S. 87, 35 conscience, and ought not to affect the estate, L. ed. 640, 11 Sup. Ct. Rep. 960 ; Binney's Case, but that this court must agere in personam 2 Bland, Ch. 99; DeKlyn v. Watkins, 3 Sandf. only ; and when, as in this case, you prosecute (h. 185 : Davis v. Morriss, 76 Va. 21. It fol. the person for a fraud, they tell you, you must lows that a court of equity of one state or coun. not intermeddle here, because the fraud, try will not assume jurisdiction of a suit that though committed here, concerns lands that lie in its essence involves merely the title or posin Ireland, which makes the jurisdiction local, session of land in another, and presents no and so would wholly elude the jurisdiction of ground of equitable intervention. In other tbis court."

words, if the action is one which, if it related The following case states sharply and con- to real property within the territorial jurisdiccisely the vature and general scope of the pecul- tion, would be at law, and not in equity, a court iar jurisdiction discussed in this note.

of equity will not assume jurisdiction merely beThe jurisdiction acquired by the courts in cause, the property being beyond the territoone state over parties to an action incidentally rial jurisdiction, a court of law cannot entertain affecting lands in another state is a jurisdican action in respect of it. tion purely in personam.

The decree or judg. Thus, Chief Justice Marshall said, in Massie ment cannot have any extraterritorial force v. Watts, 6 Cranch, 148, 3 L. ed. 181, that, if in rem. Bullock v. Bullock, 52 N. J. Eq. 561, the cause of action in that case were to be con27 L. R. A. 213, 46 Am. St. Rep. 528, 30 Atl. sidered as involving a naked question o* title to 676.

land in Virginia, the court of Kentucky would It will be observed, in addition to the other not have had jurisdiction. objections to giving effect to the Ohio decree in- An action of ejectment cannot be maintained volved in PROCTOR V. PROCTOR, so far as real in the circuit court of the district of Michigan property in Illinois was concerned, that it was for land in any other district. Northern Innot a decree in personam, but a decree in rem, diana R. Co. v. Michigan C. R. Co. 15 How. purporting to affect directly the property in 233, 14 L. ed. 674. quiestion,

A decree recovered in the courts of Kentucky

in a real action to try the title of lands in New II. Conditions of jurisdiction.

Jersey, in ejectment for the possession, a. Necessity of proper case for equitable inter

would be a perfect nullity. No action could be vention.

brought upon it in New Jersey to obtain execu.

tion of it. It would be simply void. A decree As will be shown in II. b, the ability to to deliver possession of lands in New Jersey

or

costs against the defendant, Cloyd, was, in defendant in error an interest in real awarded. On error this court held that, in estate in Ohio was extraterritorial and be. so far as the proceeding was in rem, the yond the jurisdiction of the court. That decree was valid, but that the court was part of the decree was purely a proceeding without jurisdiction to enter a decree for in rem, and the res, having its situs in costs against Cloyd, as that was in perso another state, must be controlled by the laws num. In so far as the proceeding at bar re- of the state of its situs. Lynn v. Sentel, lated to the marital relation and its dissolu. 183 Ill. 382, 75 Am. St. Rep. 110, 55 N. E. tion, the proceeding is regarded as one in 838; Pennoyer v. Neff, 95 U. S. 727, 24 L. rem, and the court was warranted in enter- ed. 570; Story, Confl. L. § 539. ing its decree dissolving the same. But In decreeing alimony, solicitors' fees, and the court could go no farther. It could not an interest in the land in Ohio, the court enter any

binding decree in personam was in error, and in those respects the deagainst plaintiff in error. 2 Black, Judgm. cree is reversed. As to the divorce no re$ 933; 9 Am. & Eng. Enc. Law, 2d ed. p. versal is asked, and the decree remains in 745; Rigney v. Rigney, 127 N. Y. 413, 24 force and is affirmed. Plaintiff will have Am. St. Rep. 462, 28 N. E. 405; Pennoyer v. judgment for costs. Neff, 95 U. S. 727, 24 L. ed. 570.

Decree reversed in part. So much of the decree as sought to vest might be enforced by the courts of Kentucky ; ands, a jurisdiction which the court could not if in possession of the person of the defendant, assume; the rule being that actions for the he could be imprisoned, or even subjected to possession of real property must be brought in peine forte et dure until he actually delivered it. the forum rei sito. Davis v. Headley, 22 N. J. Eq. 115.

A court of one state has no jurisdiction of b. Avility to grant effective relief by a decree a suit which, in its essence, involves the pos- in personam the criterion of jurisdiction. session of real property in another state, such possession not being incidental to the enforce The nonresidence of the defendant, and the ment of a contract, or trust, or relief from inability to subject him personally to the jufraud, but being in itself the foundation of the risdiction of the court, do not necessarily decontroversy. Lindsley v.

Union Silver Star feat the jurisdiction of a court of equity over Min. Co. 26 Wash. 301, 66 Pac. 382.

a suit affecting lands within the territorial juThomas v. Hukill, 131 Pa. 298, 18 Atl. 875, risdiction, since, as stated in supra, I., such affirmed a decree dismissing a bill filed by a courts are now commonly empowered by statute second lessce, out of possession, of oil lands to grant decrees in rem in respect of land with. situated in another state, alleging a forfeiture in the territorial jurisdiction. It is otherwise incurred by a prior lessee, in possession for in respect of real property beyond the terrifailure to perform his covenants, and praying torial jurisdiction. Assuming that a proper for an injunction to restrain further opera- case for equitable intervention is presented, the tions and for a decree declaring the prior | criterion of the jurisdiction of a court of equity lease void, and for an account. The supreme over a suit, the purpose of which is to affect court said that, while the proceeding was in real property beyond the territorial jurisdicform a bill in equity, it was in substance a tion, is its ability to grant effective relief by a possessory action involving the title to real decree in personam; and, therefore, in order estate; that the decree of the court could only to uphold the jurisdiction, the defendant must a ffect the person of the litigants, and could not be personally subject to the jurisdiction of the control the title and possession of the land : and court; and to subject him personally to the therefore the exercise of such jurisdiction jurisdiction, he must, if a nonresident, either would be of at least doubtful propriety, even have appeared, or have been served personally though the parties were residents of Pennsyl- | within the jurisdiction; constructive service, vapia.

or service outside of the jurisdiction, is not A court will not entertain jurisdiction where sufficient (see note to Pinney v. Providence the naked question of title is involved, or a Loan & Invest. Co. 50 L. R. A. 577); though, mere trespass or nuisance on extraterritorial according to the weight of authority, such sery. real property is sought to be restrained. ice is sufficient if the defendant is a resident, Chase v. Knickerbocker Phosphate Co. 32 App. though temporarily absent from the jurisdicDiv. 400, 53 N. Y. Supp. 220.

tion (see same note). Equity acts in personam when the parties An exception to the rule that the defendant are within the jurisdiction of the court, though must be personally subject to the jurisdiction the lands affected be within another state, but of the court was, however, made in the case of not to the extent of awarding relief more ap. Ward v. Arredondo, Hopk. Ch. 213, 14 Am. propriately obtainable in a common-law action Dec. 543, which held that a court of equity of ejectment triable by a jury of the vicinage. might enforce specific performance of a conGenet v. Delaware & H. Canal Co. 13 Misc. 409, tract for the sale of land outside the state, 35 N. Y. Supp. 147. In this case the court notwithstanding that the vendor was out of the said that a determination that a contract relat- jurisdiction, by laying hold of a deed which he ing to land in another state should be rescind- had sent to an agent within the state to be ed on account of breaches, with a decree re- delivered upon the payment of a certain sum, quiring the defendants to remove from the which was in excess of that found to be due lands all their apparatus, etc., and to surrender him upon an accounting. This seems to be the premises to the plaintiff, would, in effect, the only case in which the jurisdiction of a be to enforce an action of ejectment from the suit in personam, the purpose of which is to formance of agreements respecting land, are sonal jurisdiction of the parties may entertain transitory, and not local. Kendrick v. Wheata suit, otherwise cognizable equity,--or at ley, 3 Dana, 34; Bullitt v. Eastern Kentucky least any such suit arising out of fraud, of Land Co. 99 Ky. 324, 36 S. W. 16. But this trust, or of contract, --in which effective relief rule is not applicable to suits against nonresimay be granted by a decree requiring a con

affect real property in another state or country, sonal property, is beyond the territorial ju. has been upheld, when the owner of the title risdiction. It has power to compel the defendor interest to be affected was not personally ant to do all things necessary, according to the subject to the jurisdiction of the court; and ler loci rei site, which he could do voluntarily, in this case the jurisdiction was upheld only to give full effect to the decree against him. because of the court's control over the deed. Without regard to the situation of the sub

In Cookney v. Anderson, 32 L. J. Ch. N. S. ject-matter, such courts consider the equities 427, 9 Jur. N. S. 736, 8 L. T. N. S. 295, 11 between the parties, and decree in personam Week. Rep. 629, it was held that the court of according to those equities, and enforce obedichancery of England had no power, in a suit ence to their decrees by process in personam. to carry out trusts under a deed made in Scot. Phelps ). McDonald, 99 U. S. 298, 25 L. ed. land, to order a copy of the bill to be served 473. on the defendants out of the jurisdiction, It Excluding cases where a suit is brought in appearing that they were nonresidents. It was one state or country to restrain legal proceedfurther held in this case that, the defendants ings in another in respect of lands situated in having appeared and demurred to the bill, the the latter, it may be said for practical pur. demurrer must be allowed, although the de- poses that a court of equity will not, by virtue fendants did not move to discharge the order

of its jurisdiction over the person whose title of service.

or interest is to be affected, compel him to take A decree requiring the conveyance of prop

any action in respect of real property beyond erty in another state by nonresidents who are the territorial jurisdiction, unless a case is prenot personally, but only constructively, before

sented of which equity might take cognizance the court, would be nugatory. McGaw v.

if the land were within its territorial jurisdicGortner, 96 Md. 489, 54 Atl. 133.

tion. The converse of this proposition is not Existence or nonexistence of the power to

necessarily true, since the location of land make a decree which the court can enforce is within the territorial jurisdiction of a court of a good test by which to try the jurisdiction of equity may enable it to grant relief by a dethe court. Ibid.

cree in rem, which could not be effectually Ordinarily a court of equity having personal granted by a decree in personam. See infra, jurisdiction of the defendant will, in case of III., j, with reference to a suit for partition. fraud, of trust, or of contract, grant relief, although lands not within the jurisdiction of the c. Nonresidence of defendant as affecting jucourt will be affected by the decree, upon the

risdiction. principle that, in equity, the primary decree is in personam, and not in rem ; still, in such In some of the cases the rule with respect cases relief will not be granted unless that

to the jurisdiction of equity over suits in persought is of such a nature as the court is sonam, the purpose of which is to affect real capable of administering in the particular case.

property in another state or country, is stated Harris v. Pullman, 84 Ill. 20, 25 Am. Rep. 416.

with the condition or qualification that the The power of a court of equity to require suit must be against a resident of the state one personally subject to its jurisdiction to or country where the suit is brought. execute a conveyance is the most prolific source Thus, in Todd v. Lancaster, 104 Ky. 427, 47 of its jurisdiction of suits the purpose of which

S. W. 336, the court said : "It is well settled is to affect real property beyond the territorial that suits for rescission, or for specific perjurisdiction. And a court of equity having per

dents. In such cases the courts where the land veyance of land in another state or country. is situated have jurisdiction to rescind the conMassie v. Watts, 6 Cranch, 148, 3 L. ed. 181 ; tract for fraud or other reason, or enforce its Lewis v. Darling, 16 How. 1, 14 L. ed. 819 ; specific execution. This is a rule of necessity.” Corbett v. Nutt, 10 Wall. 464, 19 L. ed. 976 ;

So, in Wicks v. Caruthers, 13 Lea, 353, it Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565 ;

was said that courts of equity act in personam Tardy v. Morgan, 3 McLean, 338, Fed. Cas. No. in most cases where they have jurisdiction of 13,752; Lyman v. Lyman, 2 Paine, 11, Fed.

the person, and compel parties to perform conCas. No. 8,628 ; McGee v. Sweeney, 84 Cal.

tracts for conveyance of lands in foreign coun. 100, 23 Pac. 1117; Enos v. Hunter, 9 Ill. 211

trits; but the essential qualification of the rule (obiter) ; Gilliland v. Inabnit, 92 Iowa, 46, 60

is, “if the parties are resident within the terN. W. 211; Seixas v. King, 39 La. Ann. 510, 2

ritorial jurisdiction of the court."

In Solenberger v. Herr (Va.) 27 S. E. 839, So. 416; Vreeland v. Vreeland, 49 N. J. Eq. 322, 24 Atl. 551; Bullock v. Bullock, 52 N. J.

the court said that, if a bill to compel one to Eq. 561, 27 L. R. A. 213, 46 Am. St. Rep. 528, acknowledge the trust character of his holding 30 Atl. 676; Mead v. Merritt, 2 Paige, 402;

of real property had otherwise set forth a

proper case Mitchell v. Bunch, 2 Paige, 606, 22 Am. Dec.

for the intervention of equity,

it could not be sustained in view of the fact 669 ; Chase v. Knickerbocker Phosphate Co. 32 App. Div. 400, 53 N. Y. Supp. 220 ;

Orr v.

that the defendant was a resident of PennsylIrwin, 4 N. C. (2 Car. Law Repos.) 465 ;

vania, and that the subject of the alleged trust Kirklin v. Atlas Sav. & L. Asso. (Tenn. Ch.

was real estate in West Virginia; since the App.) 60 S. W. 149; Moseby v. Burrow, 52

court had jurisdiction neither of the trustee Tex. 396 ; Morris v. Hand, 70 Tex. 481, 8 S. W.

nor of the subject of the trust, and it could 210; Farley y. Shippen, Wythe (Va.) 135.

acquire no jurisdiction of either unless de came Where the necessary parties are before a

forward and voluntarily submitted himself to court of equity, it is immaterial that the res

its jurisdiction, which it could not be expect

ed that he would do. of the controversy, whether it be real or per

a

A court of equity will not entertain a suit , though within the jurisdiction at the time of by a person residing within its jurisdiction the commencement of the suit, since he may de. against parties residing in Scotland in respect part from the jurisdiction before the decree, of real property situated there, and upon a and thus render the court powerless, for the contract entered into there which contains no time, at least, to enforce the decree. The dit special provision affecting, in any way, the ju ference in this respect, however, between a nonrisdiction of the locus contractus. Cookney v. resident and a resident is merely one of degree, Anderson, 32 L. J. Ch. N. S. 305, Afirmed in since even a defendant who is a resident at 32 L. J. Ch. N. S. 427.

the time of the commencement of the suit may Matthaei v. Galitzin, L. R. 18 Eq. 340, sus depart from the state pending the suit. At tained a demurrer to a bill filed by a foreigner most the nonresidence of the defendant, assumagainst another foreigner, and against an Eng. ing that he is at any time after the commencelish company formed for working a Russian ment of the suit personally subject to the jumine, to restrain the English company from risdiction, would seem to be matter that paying to the codefendant a part of the profits merely affects the discretion of the court in of the mine, which were claimed by the plain. exercising the jurisdiction or the practical postiff, and for an account of profits against the sibility of enforcing the decree, rather than the company, upon the ground that the matter re existence of the jurisdiction. lated to foreign propercy, and that the substantial controversy was between parties who were

Prac

d. Discretion as to exercising jurisdiction. both foreigners. See also Norris v. Chambres, 29 Bcav. 246, Affirmed in 3 De G. F. & J. 583,

The existence of the jurisdiction is one thing. infra, II., d, and Blake v. Blake, 18 Week. Rep.

and the discretion of the court with respect to 944, infra, III., g, 1.

its exercise is another. As will appear from It is doubtful, however, whether these courts

the cases cited in the subdivisions of infra, III., intended to make the residence of the defend

the courts have frequently refused, as a matant within the jurisdiction where the suit is

ter of discretion, to entertain suits, the purbrought an absolute condition of the jurisdic pose of which was to affect lands beyond the tion considered from the broad point of view of

territorial jurisdiction, even though the exis.

For private international and interstate law.

tence of the jurisdiction was conceded. tically, of course, the nonresidence of the de

example in Norris v. Chambres, 29 Beav. 246 fendant will frequently defeat the jurisdiction

(Affirmed in 3 De G. F. & J. 583), it was said because of the inability to subject him person

that some special state of circumstances must ally to the jurisdiction of the court, which, as

exist in order to enable a court of England, in a shown in supra, II., a, is a condition of the ju suit between residents of England, to enforce risdiction of a suit the purpose of which is to

a lien on immovable property situated out of affect land beyond the territorial jurisdiction. the jurisdiction. If, however, the defendant, though a nonresi

In a number of cases the courts have, in the dent, is personally served within the state or

exercise of their discretion, refused to entertain country where the suit is brought, or volunta

the suit, because under all the circumstances rily appears, it would seem, upon principle, that

the interests of justice required that the liti. his nonresidence would not necessarily defeat gation be determined by the courts of the place the jurisdiction, and in many of the cases

where the property was situated. cited in infra, III., the jurisdiction was upheld, potwithstanding that the defendant was a

III. Particular subjects of jurisdiction. nonresident, he having been personally served

a. Creation and enforcement of trusts; subwithin the urisdiction, or having app red. Most of these cases seem to assume, without

stitution of trustees. questioning the point, that if the defendant is

It will be observed by refering to supra, II., personally subject to the jurisdiction, his resi

a, that the case of “trusts" was specifically men. dence or nonresidence is immaterial. But in

tioned by Chief Justice Marshall as a proper Mussina v. Belden, 6 Abb. Pr. 165, which held

one for the jurisdiction of a court of chancery, that the supreme court of New York had ju. when the person can be found within the juris. risdiction of a suit for fraudulent conspiracy diction, although lands not within the jurisdicby defendants in another state to devest the tion may be affected; and it is settled by the plaintiff of his title to land in that state, the

great weight of authority that a court of equity relief sought being damages for the wrong and of one state or country, having personal juris. an accounting and payment of rents and profits, diction of the necessary parties, and the consethe court said that it was not necessary that quent power to compel a conveyance, may dethe defendants should be residents of New

clare and enforce a trust relating to real prop. York; it was sufficient if they were served erty in another state or country. with process within the state, however brief

Thus, Massie v. Watts, 6 Cranch, 148, 3 L. their sojourn there.

ed. 181, upou the ground that the action arose In Wicks v. Caruthers, 13 Lea, 353, supra, | out of a contract or an implied trust, held that the court held that a decree requiring a non a court of Kentucky bad jurisdiction to compel resident to convey should not be granted, al defendant to convey to the plaintiff land in though he had been personally served within Ohio, for which he had procured a patent in the state, it appearing that he was no longer his own name in violation of his duty under a within the state. The court said that a de contract by which he was employed to locate cree ordering him to convey would only give au the land for the plaintiff's assignor. thority in Tennessee, and be waste paper as A court of equity having jurisdiction of the soon as he crossed the line of Mississippi; and parties may entertain a suit for the establishthat the court would not make a mere declara- ment of a resulting trust in lands in another tion of right which it could not enforce. This state. Moore v. Jaeger, 2 McArth, 465. This suggests a practical difficulty in enforcing the was a case of fraud and resulting trust arising decree when the defendant is a nonresident, ! from the purchase of an outstanding title to

real property by one who had previously con- state where the trust property was situated ; veyed it by a deed of trust to secure a debt due but that the court would not decline the juristhe complainant.

diction of the case so long as it had power to Questions of trust are personal, and not lo- execute its decision through the medium of the cal; and are, therefore, subject to the juris. holders of the legal title. diction of a court of the District of Columbia, The New York supreme court has jurisdicalthough the land in respect of which the trust tion to compel the conveyance by defendant, has arisen is situated elsewhere. Whitney . who has appeared in the suit, of land in a forFrisbie, 6 D. C. 262. This also was a case of eign state. Gardner v. Ogden, 22 N. Y. 327, a constructive trust.

78 Am. Dec. 192. It was alleged in this case A court having jurisdiction of the person of that the plaintiff had been fraudulently indefendants may entertain a suit in equity to duced to convey the land to defendant; but the have the defendants declared trustees eg male ground of the suit was that the defendant ficio of an undivided interest in real property stood in such relation to the plaintiff that he in Mexico. Butterfield v. Nogales Copper Co. became a trustee of the former with respect to (Ariz.) 80 Pac. 345.

the land in question. A court of equity of another state having A court of equity of North Carolina, having personal jurisdiction of the parties has ju- jurisdiction of the person of the trustee, may risdiction of a suit to declare that a legal title compel the execution of the trust with referto lands in lowa is subject to a trust; and a ence to real property in another state by comdecree of such court dismissing the bill is there. pelling him to pay over the sum for which the fore conclusive upon the parties in Iowa. Mac- | land was sold. Henderson V. McBee, 79 N. Gregor v. MacGregor, 9 Iowa, 65.

C. 219. A court of equity of one state has jurisdic- A court of one state bas jurisdiction of a bill tion of a bill to set aside a conveyance of land to compel the conveyance, by a trustee residing in another state, wbich an agent, appointed to within the state, of the outstanding legal estate sell the land, caused to be conveyed to him. in lands situated in other states. Vaughan v. self. Sturdevant v. Pike, 1 Ind. 277.

Barclay, 6 Whart. 392. The general principle that a court having ju- Where the legal title to a tract of land, partrisdiction of the parties has jurisdiction to ly in Tennessee and partly in Mississippi, is enforce trusts, although in doing so the title heid subject to a constructive trust in favor of to lands lying beyond its territorial limits is a decedent's estate, a decree may be rendered, in incidentally affected, is asserted in Manley v. a suit for that purpose, requiring the holder of Carter, 7 Kan. App. 86, 52 Pac. 915, although the legal title to convey the entire tract of in that case it is merely applied as between land, including that in Mississippi, as well as courts of different districts of the same state. that in Tennessee, to the administrator for the

A court of one state, having personal juris- purposes of tne estate; and a sale of the land diction over the trustee of a resulting or con. may then be decreed to be made by the adminisstructive trust of land in another state, may trator in such manner and on such terms as will compel him to make a conveyance to the bene- be most beneficial to the trust. Miller v. Birdficiaries of the trust. McQuerry V. Gilliland, song. 7 Baxt. 536. The court said it was ob89 Ky. 434, 7 L. R. A. 454, 12 S. W. 1037. vious that no decree could be made in the first · The court said that, in such a case, the sub- instance for a sale of the Mississippi portion of ject-matter is not the recovery of the land, and the land, but, after determining that complain. the action is not a proceeding in rem; that it ant was entitled to the land as assets of the esis true that the title to the land is to be af- tate, it had power to make such decree in fected by the decree in so far as it compels the personam as would coerce bim to convey the party to convey, but, by reason of his trust or land to complainant for the benefit of the escontract duty, he is personally obliged to con- tate. vey, and that duty may be discharged in one A court of equity in Virginia may compel perstate as well as another, although the land may sons residing within that state to account for not be situated in such state.

lands in Kentucky descended to them as heirs, In Hawley V. James, 7 l'aige, 213, 32 Am. as a trust subject to the payment of the anDec. 623, the chancellor directed a decree de cestor's debts, in accordance with the law of claring that, in consequence of the invalidity | Kentucky. Dickinson v. Hoomes, 8 Gratt. 353, of the express trust declared in a will with 410. reference to land in Illinois, there was a result- An executrix as such, cannot be held to an acing trust in favor of the heirs at law, and re count and settlement by a court of a state other quiring the trustees to convey the property to than that in which her letters were granted ; such heirs by a conveyance duly executed to but the court of another state may, for the pass the legal title according to the laws of purpose of determining whether real property Illinois, and to be recorded according to the in the latter state is held hy het subject to a laws of that state. The chancellor said that constructive trust in favor of the heirs of the the court had no jurisdiction to make a decree testator, compel her to disclose whether the which would directly affect either the legal or property was purchased with the funds of the equitable title to lands situated in another estate. Clopton v. Booker, 27 Ark. 482. state; and that, if the legal title to the lands In Cranstown v. Johnston, 3 Ves. Jr. 182, the in question had been in any of the infant par- court decreed a reconveyance of an estate in ties according to the laws of Illinois, or if the West Indies, which the defendant had purthose who bad the legal title had been out of chased under his own execution under circumthe jurisdiction of the court, so that it would stances making bis purchase a security for the have been impossible to operate upon them per- debt. The decision was upon the ground that sonally to compel them to execute the trust, or such a decree acts in personam, and not in rem, to convey the legal title according to the de- In Kildare v. Eustace, 1 Vern. 403, Lord cree; he would have dismissed the application Chancellor Jefferies doubted his jurisdiction to and referred the parties to the courts of the entertain a bill to be relieved touching trusts

7

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