Imagens das páginas
PDF
ePub

as

created in Ireland of lands in that Kingdom, Thus, a court of one jurisdiction cannot, by notwithstanding that both plaintiff and defend- its decree appointing a new trustee in place of ant were in England. Upon the subsequent ar- the one named in a will, affect the title to real gument, however, before himself, Lord Chief property in another state. Corbett v. Nutt, 10 Justice Beddingfield and Lord Chief Baron Wall. 464, 19 L. ed. 976. Atkins (1 Vern. 419) it was held that the court A court of another state has no jurisdiction bad jurisdiction.

to appoint a trustee to convey property in the An English court has jurisdiction to ad- District of Columbia. And the decree appointminister a trust under the will of a person ing him, and his sale of the property thereundomiciled in Scotland, not only as to the estate der, are an absolute nullity. Contee v. Lyons, in England, but to that in Scotland. 8 Mackey, 207. Ewing v. Ewing, L. R. 9 App. Cas. 34.

A court of the state in which the testator In Falke v. Terry, 32 Colo. 86, 75 Pac. 425, was domiciled, and in which a will creating a however, it was held that a court of Colorado trust estate in lands in Illinois was executed, had no jurisdiction, in an action by legatees cannot, by the appointment of a trustee in against a foreign executrix charged with con- the place of the person designated in the will, version of the assets of the estate to her own who refused to serve, effect a transfer of title use in fraud of the rights of the legatees, to to such appointee. That court can only act in adjudge the title of real estate situated in an- personam, and the outside limit of its powers other state, the title of which was in her would be to compel those having the legal title name, to be the property of the legatees, and to convey it to the trustee after his appointto be held by her in trust for them. The de ment. West v. Fitz, 109 Ill. 425. The court, cree of the trial court, which was reversed, however, did not concede, except for the puradjudged that the real estate situated in New poses of the argument, that the court of the York standing in the defendant's name upon testator's domicil would have the power to the records, was the property of the plaintiffs, compel such a conveyance. and decreed that the same should be held by Glen v. Gibson, 9 Barb. 634, refused to recog. her in trust for them.

nize, or give any effect to, a decree of a court In Servis v. Nelson, 14 N. J. Eq. 101, the of Maryland appointing trustees in place of a court said, in effect, that a trust sought to be deceased trustee, under a deed of trust relating established in land in New York could not be to real property in . New York, and directing enforced in a court in New Jersey. The case, them to carry out a contract of sale for such however, was decided on other grounds.

land. In this case, however, the trust estate The decision in Pickett Ferguson, 86 vested in the court of chancers of New York Tenn. 642, 8 S. W. 386, denying any relief un- upon the decease of the original trustee. der a bill to establish a resulting trust in land A sale of land in Ohio by a trustee substi. in Arkansas by reason of its purchase by de- tuted by a court of Virginia in place of the fendant at a judicial sale while holding it un- deceased trustee designated by the conveyance der a lease from the complainant, was upon is invalid. Henry v. Doctor, 9 Ohio, 49. the ground that a resulting trust does not The anpointment of a trustee by the court arise under such circumstances, and the ques- of another state, in the place of a deceased tion of the jurisdiction of the court of Ten- trustee to whom land in Pennsylvania had been nessee to entertain such a suit, assuming the conveyed, vests no title in the trustee thus apexistence of a trust, was not decided. Upon pointed so as to enable him to maintain ejectthe original hearing in the case, however, the ment for it, notwithstanding that the creator court was of the opinion that it would not have of the trust was domiciled in the other state. jurisdiction of a suit to enforce a constructive Williams v. Maus, 6 Watts, 278, 31 Am. Dec. trust based upon the mere relation of land- 465. lord and tenant in the absence of any actual Smith v. Davis, 90 Cal. 25, 25 Am. St. Rep. fraud on the latter's part. It is said that the 92, 27 Pac. 26, however, held that a court of a authorities limited tbe jurisdiction of the courts state in which a trust deed respecting land in of equity to make decrees respecting land situ- another state is executed may, if it has juated in other states or countries to cases of risdiction of the parties, appoint a new truscontract, trust, and fraud, and that the ration- tee to carry out the trust if the trustee named ale of that limitation required that the con- in the deed refuses to act, and the deed protract, trust, and fraud, intended by the court vides for the appointment of a new trustee in in establishing the limitation, should be under- such event. The court said that, if the title stood to be an express contract, a direct trust, to the realty does not vest in the new trustee. an actual fraud ; that the constructive trust there is no basis whatever for the contention arising from actual fraud should be classed that the decree affects the title to real propunder the head of "fraud" in the statement of erty; and that, if the title to the realty does the limitation. Upon a reconsideration of the vest in the trustee, it must be by operation of case, however, the court came to the conclu- law, or by virtue of the contract of the par. sion that the decision ought to be placed upon ties, since the decree does not so provide, and the fundamental ground already stated, and does not purport er proprio vigore to vest a said that its former opinion was not to be re- title in the trustee. garded as a precedent.

It will be observed that the last case begs While a court may, by virtue of its personal the question as to the effect of its decree, mere jurisdiction of the parties, declare and enforce ly contenting itself with rendering the decree a trust with respect to real property beyond without concerning itself with the effect of the the jurisdiction, a court of one state or country decree when rendered. Usually, however, as cannot, by its decree appointing a new trustee pointed out in supra, II., b, a court of equity in the place of one named in a will, deed, or does ot assume jurisdiction of a suit, the purtrust, affect the real property in another; pose of which is to affect land in another state and a conveyance by such substituted trustee or country, unless its decree, when rendered, is equally ineffectual.

will be elective to accomplish the purpose for

on

which 'He suit is brought. In other words, | 204; Lindley v. O'Reilly, 50 N. J. L. 636, 1 the courts will not go through the form of L. R. A. 79, 7 Am. St. Rep. 802, 15 Atl. 379 ; entertaining a suit for the purpose of render- Sutphen v. Fowler, 9 Paige, 280; Shattuck v. ing a decree which can

have no practical Cassidy, 3 Edw. Ch. 152; Newton v. Bronson, effect.

13 N. Y. 587, 67 Am. Dec. 89; Burnley v. In Barger v. Buckland, 28 Gratt. 850, where Stevenson, 24 Ohio St. 474, 15 Am. Rep. 621 ; a deed of trust was executed to secure a debt Conover v. Wright, 9 Pa. Dist. R. 688; John

a tract of land which, at the time, was son v. Kimbro, 3 Head, 557, 75 Am. Dec. 781 wholly within Virginia, but part of which was (obiter) ; Morris v. Hand, 70 Tex. 481, 8 S. subsequently incorporated into West Virginia, W. 210; Montgomery v. Ruppensburg, 31 Ont. the court, upon default of payment (there be- Rep. 433. See also Ward v. Arredondo, Hopk. irg no trusiee to execute the contract of the Ch. 213, 14 Am. Dec. 543, supra, II., b. parties to sell the land and pay the debt), de- In Episcopal Church v. Wiley, 2 Hill, Eq. creed that, unless the grantor should pay the 584, 30 Am. Dec. 386, it was held that a court debt within a prescribed period, certain named of South Carolina may entertain a suit by the persons should execute the trust by selling the vendor, who tenders title deeds, to compel the land and applying the proceeds in payment of specific performance by the purchaser of a conti:e debt.

tract for the purchase of lands in Georgia. In the subsequent case of Poindexter v. Bur-Johnston, Chancellor, however, said that he well, 82 Va. 507, it was said that the deci- was not prepared to go to the length of the sion in the last case might be taken at first decisions which hold that a defendant within glance as an exception to the rule that the the jurisdiction may be compelled to make concourts of one state cannot decree a sale of

veyances or deliver possession of lands in forlands lying in another ; but that the case was eign parts; and that he was inclined to think distinguishable from the rule by reason of its that he would not have sustained a bill by the peculiar circumstances.

purchaser against the vendor for specific per

formance. This intimation against the jub. Suit for specific performance.

risdiction to compel specific performance upon

the part of the vendor is clearly against the See also Mariposa Čo. v. Garrison, 26 How. Pr. great weight of authority as shown above. 448, infra, lII., h.

It is also settled that a suit will lie in one

state by the vendor against the purchaser to In Penn. v. Baltimore, 1 Ves. Sr. 444, 2 White enforce specific performance, although the land & T. Lead. Cas. in Eq. 923, one of the first lies in another state. Garden City Sand Co. cases which asserted the indirect jurisdiction of v. Miller, 157 Ill. 225, 41 N. E. 753; Robinequity in respect of land beyond the territorial son Mineral Spring Co. v. De Bautte, 50 La. jurisdiction,--the chancellor decreed specific Ann. 1281, 23 So. 865 ; Myers v. De Mier, 4 performance of articles executed in England Daly, 343; Baldwin v. Talmadge, 7 Jones & S. concerning the boundaries of two provinces in

400. And see Episcopal Church v. Wiley, 2 America. And the specific performance of con- Hill, Eq. 584, 30 Am. Dec. 386. tracts relating to real property has since been A court of equity may compel a purchaser one of the favorite subjects of this peculiar of land specifically to perform his contract of jurisdiction.

purchase, although the land is situated abroad, In Archer V. Preston, 1 Eq. Cas. Abr. 133, and the contract was made and was to have cited in 1 Vern. 77, the defendant coming into been performed abroad, and the plaintiff is a England, bill

exhibited against him nonresident; the defendant being duly served there to answer a contract made of land in Ire- with process, and subject to the jurisdiction. land ; and, notwithstanding that the land lay Cleveland v. Burrill, 25 Barb. 532. in Ireland, and was under the act of settle. In a suit in the Federal courts for specific

of ment there, yet a ne exeat regno was granted, performance telegraph right-of-way conand process against him to answer ; and when

tracts with certain consolidated railroad comhe afterwards went into Ireland without an. panies, the necessary parties being subject to swering he was sent for by special order from the court's jurisdiction, it is immaterial that the King, and made to answer the contempt a portion of the property affected is beyond the and to abide the justice of the court.

court's territorial jurisdiction. Western U. So, courts, having personal jurisdiction of Teleg. Co. v. Pittsburg, C. C. & St. L. R. Co. the parties, have frequently asserted and exer

137 Fed. 435. cised jurisdiction to enforce specific perform

On a bill in equity for specific performance ance upon the part of the vendor of contracts of an agreement to assign a bond for the conto convey land in another state or country, up

veyance of land in another state, the court will on the ground that the decree in such case is entertain jurisdiction against third persons rein personam, and not in rem, and that the siding in that state, who have taken a conveyvendor may be compelled by process against the ance of the land pending the suit with notice person to execute a conveyance which shall be of the plaintiff's rights, and, being made parties sufficient, according to the law of the place to the suit, have been served with process in where the land is situated, to pass the title. the state, and have once appeared and anMontgomery United States, 36 Fed. 4; swered without objecting to the jurisdiction. Smith v. Davis, 90 Cal. 25, 25 Am. St. Rep. Pingree v. Coffin, 12 Gray, 288. 92, 27 Pac. 26 (obiter); Winn v. Strickland, Penn v. Hayward, 14 Ohio St. 302, while con34 Fla. 610, 16 So. 606 (obiter); Cloud v. ceding the general proposition that a court of Greasley, 125 Ill. 313, 17 N. E. 826; Bethell one state may enforce specific performance of v. Bethell, 92 Ind. 318 (obiter) ; Rea v. Fergu- a contract to convey real property in another, son (Iowa) 102 N. W. 778; Brown y. Des. refused to entertain such a suit, because only mond, 100 Mass. 267; Olney v. Eaton, 66 Mo. part of the persons by whom the conveyance 563; Davis v. Headley, 22 N. J. Eq. 115 ; must be executed in order to pass the comPotter v. Hollister, 45 N. J. Eq. 508, 18 Atl. plete title were personally subject to the ju

[ocr errors]

was

V.

risdiction of the court, the others being non- tion or conscience of the defendant. T.e court, residents, and not served personally within the therefore, having jurisdiction of the defendant, state.

can direct its decree upon him, and compel him Wilhite v. Skelton (Ind. Terr.) 82 S. W. 932, to do what is equitable and right, under the held that a court of Indian territory should not circumstances. The court is not asked to pass take jurisdiction of a suit to enforce the spe- pon the title to the land, but only to say cific performance of an agreement for the joint whether the defendant shall be compelled to purchase and operation of a lease of oil lands release and discharge an apparent cloud upon in Oklahoma, where the terms of the contract title if the court shall find that in equity be as respects the manner of working, the extent ought to do so. to which the operations should be carried on. A court of chancery of one state having per. and the consequent royalty, were such that sonal jurisdiction of all the necessary defendthey could not be enforced so as to do justice ants may entertain a suit for the establishment between the parties without the constant super of the right of the complainant to a tract of vision of the court.

land in another state, and, as an incident of Kansas & E. R. Constr. Co. v. Topeka, S. & that relief, to restrain the defendants from inW. R. Co. 135 Mass. 34, 46 Am. Rep. 439, held terfering with the complainant's possession, that a suit would not lie in Massachusetts for and for a removal of their claim as a cloud the specific performance by a railroad company upon the complainant's title. Kirklin V. Atof a construction contract with the complain las Sav. & L. Asso. (Tenn. Ch. App.) 60 S. W. ant, whereby the former agreed to deliver cer- 149. tain bonds and certificates of stock in payment A court of Indiana, having personal jurisdicof work to be performed by the complainant in tion of the parties, bas power to declare a note a foreign state. The decision

is upon

the and a mortgage securing the same void, beground that the liabilities which the defend cause executed by a married woman as secu. ant is under in regard to the construction of rity for a debt of her husband, and to enjoin tbe roadway in the other state, as well as those defendant from attempting to enforce either which the complninant has assumed, must be the note or mortgage, although the mortgaged determined by the local law of that state, as land lies in another state. Ft. Wayne Trust administered by its appropriate tribunals; and Co. v. Sibler (Ind. App.) 72 N. E. 494. that at every step such tribunals must have A court of equity of one state has jurisdicthe right to determine, as occasions for intertion to compel the defendant to cancel and exevention arise, whether the duty imposed upon cute a discharge of a mortgage upon land in the railroad company is being performed and another, given to secure a usurious contract. the laws of the state observed.

Williams v. Fitzhugh, 37 N. Y. 444. l'ort Royal R. Co. v. Hammond, 58 Ga. 523. A court of one state has the right and powheld that a court of Georgia would not enter- er, in a proper case, to decree a mortgage upon tain a suit for the specific performance of an real estate void for usury, and to compel the agreement by a railroad company, a domestic | party holding it to surrender it up to be cancorporation, with respect to opening ditches on celed, although the lands mortgaged lie in ancomplainant's land in South Carolina, keeping other state. Williams v. Ayrault, 31 Barb. them open to a certain depth, and constructing 368. and keeping in repair cattle guards thereon. It will be observed that the jurisdiction of The court said that, if the act required to be a suit to remove a cloud on the title of real done on the part of the defendant, in the suf- property beyond the territorial jurisdiction deficlent execution of the contract, were required pends upon the proposition that such a suit is, to be performed in Georgia, there would not or at least may be, a suit in personam, and not seem to be any well-founded objection to the in rem; and support for this proposition is jurisdiction of the court, notwithstanding that found in Hart v. Sanson, 110 U. S. 151. 28 L. the land was situated in another state.

ed. 101, 3 Sup. Ct. Rep. 586, which held that

the decree in such a case, unless otherwise proc. Suit to remove cloud upon title; to cancel vided by statute, is clearly not in rem, estabvoid mortgage.

lishing a title in land, but operates in personam
only by restraining the defendant from assert-

ing his claim, and by directing him to deliver See also Monnett v. Turpie, 132 Ind. 482, 32

up his deed to be canceled, or to execute a reN. E. 328, infra, III., g, 1.

lease to the plaintiff ; and, because the decree,

in the absence of statute, is in personam and A United States court sitting in one state

to having personal jurisdiction of the defendant

not in rem, the court denied the power may entertain a suit to remove a cloud on the

render such a decree, even with respect to land title of real property in another, the case be.

within the jurisdiction, upon constructive serying one of asserted fraud, or of a constructive

ice against a nonresident. trust created by operation of law. Briggs v. French, 1 Sumn. 504, Fed. Cas. No. 1.870.

d. Foreclosure of mortgage or other lien. A court of equity having jurisdiction of the parties has also jurisdiction to compel defend. It is clear that a court of equity may enterant to release and discharge an apparent cloud tain a suit for the strict foreclosure of a mortupon the title to land situated in another state. gage upon land in another state or country, Remer v. Mackay, 35 Fed. 86. The court said : since a decree in personam is entirely adequate A suit to remove a cloud upon title is a pro for the purpose. ceeding in equity, and equity, as a rule, op- A court in New York having jurisdiction of erates wholly in personam. It operates upon

the parties may maintain an action for the the conscience of the defendant by decreeing strict foreclosure of a mortgage upon lands in him to do, or refrain from doing, some special another state. House v. Lockwood, 40 Hun, act; and the general effect and scope of a de

532. cree in a court of equity is aimed at the voli- A foreclosure decree being a decree in per.

1

1

sonam depriving the mortgagor of his personal | risdiction of the person, may decree a conveyright to redeem, an English court of chancery ance by him of land in another state, and may has jurisdiction to make such a decree in re- enforce the decree by process. spect to a mortgage between an English mort. A United States circuit court has jurisdicgagor and mortgagee upon land in one of the tion of a suit to foreclose a mortgage upon a colonies. Paget v. Ede, L. R. 18 Eq. 118. bridge located partly in Texas and partly in The decision was upon the assumption that the Mexico, as to that portion of the bridge lying legal title was in the mortgagee, and that the in Mexico. International Bridge & Tramway mortgagor merely had an equity of redemption. Co. v. Holland Trust Co. 26 C. C. A. 469, 52 wliich was not, in the proper technical legal | U. S. App. 240, 81 Fed. 422. The suit was sense, an estate in the land.

brought by the trustee named in the mortgage, A court of equity in England having jurisdic, and the decree directed a sale by a master : and tion of the person of the defendant may en. the bridge company, its officers and directors, tertain a bill to require him to redeem a mort. were required to execute conveyances, good and gage upon land outside of England, or be fore- sufficient under the laws of Texas, to the purclosed. Toller v. Carteret, 2 Vern. 495.

chaser for such part of the property as was But, a power of sale in a mortgage on land situated in that state, and good and sufficient without the state, and proceedings under it, conveyances, according to the law of Mexico, are not regulated by the New York statutes for such of the property as was in Mexico. with reserence to the foreclosure of mortgages A court of chancery has jurisdiction of a by advertisement. Elliott v. Wood, 45 N. Y. bill for the foreclosure of a railroad mortgage, 71.

although embracing property out of the state Because of the principle referred to in IV., as well as property within it. Mead v. New infra, that a sale or conveyance of real prop- York, II. & N. R. Co. 45 Conn. 199. erty in one state or country by a master, or A court having jurisdiction over a railroad commissioner, or other officer appointed by a corporation owning a continuous line located court of another state or country, is entirely in- partly in the state and partly in an adjoining effectnal, it has sometimes been supposed that state may, in the exercise of its equitable powa court of one state or country has no jurisdic- ers, make a decree foreclosing a mortgage uption of a suit for the foreclosure of a mort- on the road with respect to the property situgage upon land in another, if a judicial sale ated in both states; and may effectuate the is necessary in order to make the decree of decree by directing a sale of the whole propforeclosure effectual; and this principle would erty, and an execution of the proper conveyance be fatal to the jurisdiction, in such a case, if to the purchaser by the receiver, the trustee, the court were limited to a decree directing and the mortgagor. McTighe v. Macon Constr. the sale of the property. But, while that is Co. 94 Ga. 306, 32 L. R. A. 208, 47 Am. St. the usual form of a decrce of foreclosure when Rep. 153, 21 S. E. 701. the property is within the territorial jurisdic- A state court has jurisdiction, where all the tion, the court may add to it a direction that parties in interest are before it, to direct a the mortgagor, or the owner of the equity of sale as an entirety, under a power in a mortredemption, shall convey or release his title to gage, of a canal and its franchises extending the purchaser at the sale. While, therefore, a into another state; but, if the portion within

decree of foreclosure in the usual form, mere. that state is in the possession of receivers apAly directing a sale of the property, is of itself pointed therein, a concurring or ancillary devoid, and without effect so far as property be

cree must be obtained before a sale can be yond the territorial jurisdiction is concerned,

had. Brown v. Chesapeake & 0. Canal Co. 73 the jurisdiction of a court of one state or coun.

Md. 567. try to decree a sale under a mortgage of prop

That a portion of railroad covered by a erty used as an entirety, lying in part in the

mortgage lies in another state does not deprive state in which the suit is brought and in part

a court of New York of jurisdiction of a suit in another state or states, and to direct the

to foreclose the mortgage. The decree of foremortgagor or owner of the equity of redemption

closure cannot be directly executed in a foreign to execute a deed to the purchaser, has been

state ; but the mortgagor, if subject to the juupheld in a number of cases.

risdiction, can be ordered to execute a conThus, in a foreclosure of a mortgage upon a

veyance in aid of the sale under it in the perrailroad lying partly in one state and partly in

formance of a covenant for further assurance. another, a court of equity in one state may de

Union Trust Co. v. Olmsted, 102 N. Y. 729, 7 cree a sale of the entire road lying in both

N. E. 822. states, and direct a deed to the purchaser. Mul

The decree rendered by the supreme court in ler v. Dows, 94 U. S. 444, 24 L. ed. 207. The the last case was an ordinary decree of foreaction was brought in a Federal court sitting closure, and the property in both states was in lowa, and the decree covered a part of the

sold in pursuance thereof. The court of apline in Missouri, as well as the part in Iowa.

peals held that the order requiring the mortThe decree directed a sale of the entire prop. gagor to convey could be made after the report erty covered by the mortgage, directed the of sale and by way of amendment to the de. master to execute a good and sufficient deed to cree. the purchaser, declared that the defendants be An ordinary decree of foreclosure of a mortbarred and foreclosed from all interest in the gage, directing the sale of the part of the mortproperty, directed the mortgagor to surrender gaged premises that are situated in another to the purchaser the property sold and con

state, as well as those that are situated in the veyed upon the execution, approval, and deliv

state in which the decree is rendered, may be ery of the master's deed, and, as a further as.

amended, even after a sale, by a provision resurance, directed the mortgagor to execute a quiring the mortgagor to execute to the purdeed of the property to the purchaser. The

chaser a deed of the mortgaged property lying decision is expressly referred to the general

outside the state. Ibid. principle that a court of equity, having ju- A court has jurisdiction of an action to fore

[ocr errors]

a

re

close a mortgage upon land located partly in might affect the court's discretion as to the
the state and partly in another state, and may, assumption of jurisdiction.
when the mortgagors are residents of the state, A decree of foreclosure rendered in New
and have personally been served with process York, and a deed executed by a referee appoint-
therein, provide in the decree that the referee ed pursuant to that decree, covering real prop-
shall sell all the mortgaged land, and that the erty in New York and Connecticut, are invalid
mortgagors shall convey the land in the other so far as the property in Connecticut is con-
state to the purchaser. Mead v. Brockner, 82 cerned, since the courts of the state in which
App. Div. 480, 81 N. Y. Supp. 594. The court land is situated will not recognize the right of
said that the principle upon which the jurisdic- the courts in other states to affect directly the
tion is exercised in such cases is that, while a title to real estate in the former. Farmers'
court of equity has no power to transfer the Loan & T. Co. v. Postal Teleg. Co. 55 Conn.
title to the alien land by a judgment in rem, it 334, 3 Am. St. Rep. 53, 11 Atl. 184. The de-
can compel a conveyance by a decree in per cree in this case was simply the ordinary de-
8onani against a party who holds the title, and cree of foreclosure and sale, without any di-
over whom it has acquired jurisdiction. The rection for a conveyance by the mortgagor or
reason for its exercise is found in the necessity owner of the equity of redemption to the pur-
and convenience of disposing of property by a chaser at the sale ; and the decision is, there-
single sale where it cannot be advantageously fore, not inconsistent with those above cited
sold in fragments, and it is quite as applicable which sustain the jurisdiction.
in kind, if not in degree, to the case of a house A decree of sale o real property upon fore-
and lot, or of a farm situated in two adjoining closure of a mortgage and a deed made in pur-
states, as to the case of a railroad.

suance of it are ineffective to pass the title to
A court having jurisdiction of the trustee l'eal property in another state, whether the sale
under a mortgage covering railroad property is made through the instrumentality of some
in two or more states may, by Its decree officer designated by statute, or appointed by
operating upon the trustee himself, authorize the court. Pittsburgh & State Line R. Co. v.
him to sell and convey whatever interest of the Rothschild, 8 Sadler (Pa.) 83, 4 Atl. 385.
railroad company will pass under the terms of This decision seems to be explainable in the
the mortgage, wherever the property may be same way as the preceding one.
situated. McElrath v. Pittsburg & S. R. Co.

In the two cases next cited the court seems 55 Pa. 189.

to have been of the opinion that it was impos. King v. Tuscumbia, C. & D. R. Co. Fed. Cas. sible to make a decree of foreclosure effective No. 7,808, denied the jurisdiction of a district with respect to property beyond the jurisdic. court of the United States sitting in Alabama tion, though neither expressly denies the pow. to decree foreclosure and sale of land in Mis. er to make the decree thus effective by the sissippi under a mortgage. The court said requisition of

conveyance or release from that it might, in a proper case, compel the rail

mortgagor or owner

of the

equity of road company to convey to the complainants. demption. but that it could make no decree which would The courts of Ohio have no jurisdiction to operate directly upon the land, and that it enforce the remedy of bondholders by the fore. therefore could not decree a foreclosure, nor a

closure of a mortgage upon the part of a railsale of the land lying in Mississippi.

road in another state. Eaton & H. R. Co. v. Guarantee Trust & S. D. Co. v. Delta & P. Hunt, 20 Ind. 457. The court said that, alLand Co. 43 C. C. A. 396, 104 Fed. 5, held though the court of one state may act in per. that a sale of lands owned by a railroad com

sonam upon an individual touching real proppany in Mississippi, by a master or commis erty owned by him in another state, even to sioner appointed by a decree rendered in a ordering him to sell it, yet, if he refuses obedi. United States circuit court for the western dis ence to the order, the court cannot appoint a trict of Tennessee, in a suit to foreclose a

commissioner to make the sale in his stead, and mortgage upon the property, does not affect the is powerless to effect the sale. title, since the court had no jurisdiction to de

A court of New York has no jurisdiction, in cree the sale. The case is distinguished from

a suit for foreclosure of a mortgage covering Muller v. Dows, 94 U. S. 444, 24 L. ed. 207, real property situated in New York and other supra, upon the ground that in the latter case states, and used as an entirety by a telegraph the sale was made at the instance of the trus company, to decree a sale of so much of the tees in the mortgage, who, notwithstanding the property as is stiuated beyond the limits of the appeal, could be directed by the trial court to state. Farmers' Loan & T. Co. v. Bankers' & join in a conveyance; and that the mortgagor M. Teleg. Co. 44 Hun, 400. The decree in this was required to execute a deed of assurance to case, in addition to the direction of a sale, adthe purchaser at the sale; whereas, in the case

judged that the purchaser of the property at bar the action was brought by a bondhold

should be let into the possession and enjoyer, and there was no deed of assurance either

ment thereof, and that every person in posses. by the trustees or by the mortgagor. It is

sion thereof should surrender the same upon further pointed out that the property involved the production of the referee's deed, and that in the case at bar did not constitute a part of

the purchaser should hold and enjoy the propthe railroad, but was wild and uncultivated erty. The court intimated that there was no land. This fact in itself, however, would not

way in which such provision could be enforced seem to be sufficient to distinguish the case,

or made effective. on principle, from the Muller Case, though it In Cook v. Weigley (N. J. Eq.) 59 Atl. 1029, is obvious that there is a greater necessity for

it seems to be assumed that the jurisdiction of the exercise of the power to decree a sale of

a suit in New Jersey to foreclose a mortgage 80 much of the pr rty as is within another upon an island in the Hudson river was de state when the property constitutes a part of pendent upon whether the island, under the the line of the road, than when it is not a boundary agreement between New York and part of such line; and, therefore, such fact New Jersey, was within the latter's jurisdic

« AnteriorContinuar »