created in Ireland of lands in that Kingdom, notwithstanding that both plaintiff and defendant were in England. Upon the subsequent argument, however, before himself, Lord Chief Justice Beddingfield and Lord Chief Baron Atkins (1 Vern. 419) it was held that the court had jurisdiction.

An English court has jurisdiction to administer a trust under the will of a person domiciled in Scotland, not only as to the estate in England, but as to that in Scotland. Ewing v. Ewing, L. R. 9 App. Cas. 34.

In Falke v. Terry, 32 Colo. 86, 75 Pac. 425, however, it was held that a court of Colorado had no jurisdiction, in an action by legatees against a foreign executrix charged with conversion of the assets of the estate to her own use in fraud of the rights of the legatees, to adjudge the title of real estate situated in another state, the title of which was in her name, to be the property of the legatees, and to be held by her in trust for them. The decree of the trial court, which was reversed, adjudged that the real estate situated in New York standing in the defendant's name upon the records, was the property of the plaintiffs, and decreed that the same should be held by her in trust for them.

In Servis v. Nelson, 14 N. J. Eq. 101, the court said, in effect, that a trust sought to be established in land in New York could not be enforced in a court in New Jersey. The case, however, was decided on other grounds.

not

The decision in Pickett V. Ferguson, 86 Tenn. 642, 8 S. W. 386, denying any relief under a bill to establish a resulting trust in land in Arkansas by reason of its purchase by defendant at a judicial sale while holding it under a lease from the complainant, was upon the ground that a resulting trust does arise under such circumstances, and the question of the jurisdiction of the court of Tennessee to entertain such a suit, assuming the existence of a trust, was not decided. Upon the original hearing in the case, however, the court was of the opinion that it would not have jurisdiction of a suit to enforce a constructive trust based upon the mere relation of landlord and tenant in the absence of any actual fraud on the latter's part. It is said that the authorities limited the jurisdiction of the courts of equity to make decrees respecting land situated in other states or countries to cases of contract, trust, and fraud, and that the rationale of that limitation required that the contract, trust, and fraud, intended by the court in establishing the limitation, should be understood to be an express contract, a direct trust, an actual fraud; that the constructive trust arising from actual fraud should be classed under the head of "fraud" in the statement of the limitation. Upon a reconsideration of the case, however, the court came to the conclusion that the decision ought to be placed upon the fundamental ground already stated, and said that its former opinion was not to be regarded as a precedent.

While a court may, by virtue of its personal jurisdiction of the parties, declare and enforce a trust with respect to real property beyond the jurisdiction, a court of one state or country cannot, by its decree appointing a new trustee in the place of one named in a will, deed, or trust, affect the real property in another; and a conveyance by such substituted trustee is equally ineffectual.

Thus, a court of one jurisdiction cannot, by its decree appointing a new trustee in place of the one named in a will, affect the title to real property in another state. Corbett v. Nutt, 10 Wall. 464, 19 L. ed. 976. A court of another state has no jurisdiction to appoint a trustee to convey property in the District of Columbia. And the decree appoint

ing him, and his sale of the property thereunder, are an absolute nullity. Contee v. Lyons, 8 Mackey, 207.

A court of the state in which the testator was domiciled, and in which a will creating a trust estate in lands in Illinois was executed. cannot, by the appointment of a trustee in the place of the person designated in the will, who refused to serve, effect a transfer of title to such appointee. That court can only act in personam, and the outside limit of its powers would be to compel those having the legal title to convey it to the trustee after his appointment. West v. Fitz, 109 Ill. 425. The court, however, did not concede, except for the purposes of the argument, that the court of the testator's domicil would have the power to compel such a conveyance.

Glen v. Gibson, 9 Barb. 634, refused to recognize, or give any effect to, a decree of a court of Maryland appointing trustees in place of a deceased trustee, under a deed of trust relating to real property in New York, and directing them to carry out a contract of sale for such land. In this case, however, the trust estate vested in the court of chancery of New York upon the decease of the original trustee.

A sale of land in Ohio by a trustee substituted by a court of Virginia in place of the deceased trustee designated by the conveyance is invalid. Henry v. Doctor, 9 Ohio, 49.

The appointment of a trustee by the court of another state, in the place of a deceased trustee to whom land in Pennsylvania had been conveyed, vests no title in the trustee thus appointed so as to enable him to maintain ejectment for it, notwithstanding that the creator of the trust was domiciled in the other state. Williams v. Maus, 6 Watts, 278, 31 Am. Dec. 465.

Smith v. Davis, 90 Cal. 25, 25 Am. St. Rep. 92, 27 Pac. 26, however, held that a court of a state in which a trust deed respecting land in another state is executed may, if it has jurisdiction of the parties, appoint a new trustee to carry out the trust if the trustee named in the deed refuses to act, and the deed provides for the appointment of a new trustee in such event. The court said that, if the title to the realty does not vest in the new trustee, there is no basis whatever for the contention that the decree affects the title to real property; and that, if the title to the realty does vest in the trustee, it must be by operation of law, or by virtue of the contract of the parties, since the decree does not so provide, and does not purport ex proprio vigore to vest a title in the trustee.

It will be observed that the last case begs the question as to the effect of its decree, merely contenting itself with rendering the decree without concerning itself with the effect of the decree when rendered. Usually, however, as pointed out in supra, II., b, a court of equity does not assume jurisdiction of a suit, the purpose of which is to affect land in another state or country, unless its decree, when rendered. will be effective to accomplish the purpose for

risdiction of the court, the others being nonresidents, and not served personally within the state.

Wilhite v. Skelton (Ind. Terr.) 82 S. W. 932. held that a court of Indian territory should not take jurisdiction of a suit to enforce the specific performance of an agreement for the joint purchase and operation of a lease of oil lands in Oklahoma, where the terms of the contract as respects the manner of working, the extent to which the operations should be carried on. and the consequent royalty, were such that they could not be enforced so as to do justice between the parties without the constant supervision of the court.

the

Kansas & E. R. Constr. Co. v. Topeka, S. & W. R. Co. 135 Mass. 34, 46 Am. Rep. 439, held that a suit would not lie in Massachusetts for the specific performance by a railroad company of a construction contract with the complain ant, whereby the former agreed to deliver certain bonds and certificates of stock in payment of work to be performed by the complainant in a foreign state. The decision is upon ground that the liabilities which the defend ant is under in regard to the construction of the roadway in the other state, as well as those which the complainant has assumed, must be determined by the local law of that state, as administered by its appropriate tribunals; and that at every step such tribunals must have the right to determine, as occasions for intervention arise, whether the duty imposed upon the railroad company is being performed and the laws of the state observed.

Port Royal R. Co. v. Hammond, 58 Ga. 523. held that a court of Georgia would not entertain a suit for the specific performance of an agreement by a railroad company, a domestic corporation, with respect to opening ditches on complainant's land in South Carolina, keeping them open to a certain depth, and constructing and keeping in repair cattle guards thereon. The court said that, if the act required to be done on the part of the defendant, in the sufficlent execution of the contract, were required to be performed in Georgia, there would not seem to be any well-founded objection to the jurisdiction of the court, notwithstanding that the land was situated in another state.

c. Suit to remove cloud upon title; to cancel void mortgage.

See also Monnett v. Turple, 132 Ind. 482, 32 N. E. 328, infra, III., g, 1.

A United States court sitting in one state having personal jurisdiction of the defendant may entertain a suit to remove a cloud on the title of real property in another, the case being one of asserted fraud, or of a constructive trust created by operation of law. Briggs v. French, 1 Sumn. 504, Fed. Cas. No. 1.870.

A court of equity having jurisdiction of the parties has also jurisdiction to compel defendant to release and discharge an apparent cloud upon the title to land situated in another state. Remer v. Mackay, 35 Fed. 86. The court said: A suit to remove a cloud upon title is a pro ceeding in equity, and equity, as a rule, operates wholly in personam. It operates upon the conscience of the defendant by decreeing him to do, or refrain from doing, some special act; and the general effect and scope of a de cree in a court of equity is aimed at the voli

tion or conscience of the defendant. Te court, therefore, having jurisdiction of the defendant. can direct its decree upon him, and compel him to do what is equitable and right, under the circumstances. The court is not asked to pass upon the title to the land, but only to say whether the defendant shall be compelled to release and discharge an apparent cloud upon title if the court shall find that in equity he ought to do so.

A court of chancery of one state having personal jurisdiction of all the necessary defendants may entertain a suit for the establishment of the right of the complainant to a tract of land in another state, and, as an incident of that relief, to restrain the defendants from interfering with the complainant's possession, and for a removal of their claim as a cloud upon the complainant's title. Kirklin v. Atlas Sav. & L. Asso. (Tenn. Ch. App.) 60 s. W. 149.

A court of Indiana, having personal jurisdiction of the parties, has power to declare a note and a mortgage securing the same void, because executed by a married woman as security for a debt of her husband, and to enjoin defendant from attempting to enforce either the note or mortgage, although the mortgaged land lies in another state. Ft. Wayne Trust Co. v. Sihler (Ind. App.) 72 N. E. 494.

A court of equity of one state has jurisdiction to compel the defendant to cancel and execute a discharge of a mortgage upon land in another, given to secure a usurious contract. Williams v. Fitzhugh, 37 N. Y. 444.

A court of one state has the right and power, in a proper case, to decree a mortgage upon real estate void for usury, and to compel the party holding it to surrender it up to be canceled, although the lands mortgaged lie in another state. Williams v. Ayrault, 31 Barb. 368.

It will be observed that the jurisdiction of a suit to remove a cloud on the title of real property beyond the territorial jurisdiction depends upon the proposition that such a suit is, or at least may be, a suit in personam, and not in rem; and support for this proposition is found in Hart v. Sanson, 110 U. S. 151, 28 L. ed. 101, 3 Sup. Ct. Rep. 586, which held that the decree in such a case, unless otherwise provided by statute, is clearly not in rem, establishing a title in land, but operates in personam only by restraining the defendant from asserting his claim, and by directing him to deliver up his deed to be canceled, or to execute a release to the plaintiff; and, because the decree, in the absence of statute, is in personam and not in rem, the court denied the power to render such a decree, even with respect to land within the jurisdiction, upon constructive service against a nonresident.

d. Foreclosure of mortgage or other lien.

It is clear that a court of equity may entertain a suit for the strict foreclosure of a mortgage upon land in another state or country, since a decree in personam is entirely adequate for the purpose.

A court in New York having jurisdiction of the parties may maintain an action for the strict foreclosure of a mortgage upon lands in another state. House v. Lockwood, 40 Hun, 532.

A foreclosure decree being a decree in per

A court of equity in England having jurisdictlon of the person of the defendant may entertain a bill to require him to redeem a mortgage upon land outside of England, or be foreclosed. Toller v. Carteret, 2 Vern. 495.

But, a power of sale in a mortgage on land without the state, and proceedings under it. are not regulated by the New York statutes with reference to the foreclosure of mortgages by advertisement. Elliott v. Wood, 45 N. Y. 71.

Because of the principle referred to in IV., infra, that a sale or conveyance of real prop erty in one state or country by a master, or commissioner, or other officer appointed by a court of another state or country, is entirely ineffectual, it has sometimes been supposed that a court of one state or country has no jurisdic tion of a suit for the foreclosure of a mortgage upon land in another, if a judicial sale is necessary in order to make the decree of foreclosure effectual; and this principle would be fatal to the jurisdiction, in such a case, if the court were limited to a decree directing the sale of the property. But, while that is the usual form of a decrce of foreclosure when the property is within the territorial jurisdiction, the court may add to it a direction that the mortgagor, or the owner of the equity of redemption, shall convey or release his title to the purchaser at the sale. While, therefore, a decree of foreclosure in the usual form, merely directing a sale of the property, is of itself void, and without effect so far as property beyond the territorial jurisdiction is concerned, the jurisdiction of a court of one state or country to decree a sale under a mortgage of property used as an entirety, lying in part in the state in which the suit is brought and in part in another state or states, and to direct the mortgagor or owner of the equity of redemption to execute a deed to the purchaser, has been upheld in a number of cases.

Thus, in a foreclosure of a mortgage upon a railroad lying partly in one state and partly in another, a court of equity in one state may decree a sale of the entire road lying in both states, and direct a deed to the purchaser. Muller v. Dows, 94 U. S. 444, 24 L. ed. 207. The action was brought in a Federal court sitting in lowa, and the decree covered a part of the line in Missouri, as well as the part in Iowa. The decree directed a sale of the entire property covered by the mortgage. directed the master to execute a good and sufficient deed to the purchaser, declared that the defendants be barred and foreclosed from all interest in the property, directed the mortgagor to surrender to the purchaser the property sold and conveyed upon the execution, approval, and delivery of the master's deed, and, as a further assurance, directed the mortgagor to execute a deed of the property to the purchaser. The decision is expressly referred to the general principle that a court of equity, having ju

A United States circuit court has jurisdiction of a suit to foreclose a mortgage upon a bridge located partly in Texas and partly in Mexico, as to that portion of the bridge lying in Mexico. International Bridge & Tramway Co. v. Holland Trust Co. 26 C. C. A. 469, 52 U. S. App. 240, 81 Fed. 422. The suit was brought by the trustee named in the mortgage, and the decree directed a sale by a master and the bridge company, its officers and directors, were required to execute conveyances, good and sufficient under the laws of Texas, to the purchaser for such part of the property as was situated in that state, and good and sufficient conveyances, according to the law of Mexico, for such of the property as was in Mexico.

A court of chancery has jurisdiction of a bill for the foreclosure of a railroad mortgage, although embracing property out of the state as well as property within it. Mead v. New York, H. & N. R. Co. 45 Conn. 199.

A court having jurisdiction over a railroad corporation owning a continuous line located partly in the state and partly in an adjoining state may, in the exercise of its equitable powers, make a decree foreclosing a mortgage upon the road with respect to the property situ ated in both states; and may effectuate the decree by directing a sale of the whole property, and an execution of the proper conveyance to the purchaser by the receiver, the trustee, and the mortgagor. McTighe v. Macon Constr. Co. 94 Ga. 306, 32 L. R. A. 208, 47 Am. St. Rep. 153, 21 S. E. 701.

A state court has jurisdiction, where all the parties in interest are before it, to direct a sale as an entirety, under a power in a mortgage, of a canal and its franchises extending into another state; but, if the portion within that state is in the possession of receivers appointed therein, a concurring or ancillary decree must be obtained before a sale can be had. Brown v. Chesapeake & O. Canal Co. 73 Md. 567.

That a portion of a railroad covered by a mortgage lies in another state does not deprive a court of New York of jurisdiction of a suit to foreclose the mortgage. The decree of foreclosure cannot be directly executed in a foreign state; but the mortgagor, if subject to the jurisdiction, can be ordered to execute a conveyance in aid of the sale under it in the performance of a covenant for further assurance. Union Trust Co. v. Olmsted, 102 N. Y. 729, 7 N. E. 822.

The decree rendered by the supreme court in the last case was an ordinary decree of foreclosure, and the property in both states was sold in pursuance thereof. The court of appeals held that the order requiring the mortgagor to convey could be made after the report of sale and by way of amendment to the de

cree.

An ordinary decree of foreclosure of a mortgage, directing the sale of the part of the mortgaged premises that are situated in another state, as well as those that are situated in the state in which the decree is rendered, may be amended, even after a sale, by a provision requiring the mortgagor to execute to the purchaser a deed of the mortgaged property lying outside the state. Ibid.

A court has jurisdiction of an action to fore

close a mortgage upon land located partly in the state and partly in another state, and may, when the mortgagors are residents of the state, and have personally been served with process therein, provide in the decree that the referee shall sell all the mortgaged land, and that the mortgagors shall convey the land in the other state to the purchaser. Mead v. Brockner, 82 App. Div. 480, 81 N. Y. Supp. 594. The court said that the principle upon which the jurisdiction is exercised in such cases is that, while a court of equity has no power to transfer the title to the alien land by a judgment in rem, it can compel a conveyance by a decree in personam against a party who holds the title, and over whom it has acquired jurisdiction. The reason for its exercise is found in the necessity and convenience of disposing of property by a single sale where it cannot be advantageously sold in fragments, and it is quite as applicable in kind, if not in degree, to the case of a house and lot, or of a farm situated in two adjoining states, as to the case of a railroad.

A court having jurisdiction of the trustee under a mortgage covering railroad property in two or more states may, by its decree operating upon the trustee himself, authorize him to sell and convey whatever interest of the railroad company will pass under the terms of the mortgage, wherever the property may be situated. McElrath v. Pittsburg & S. R. Co. 55 Pa. 189.

King v. Tuscumbia, C. & D. R. Co. Fed. Cas. No. 7,808, denied the jurisdiction of a district court of the United States sitting in Alabama to decree foreclosure and sale of land in Mississippi under a mortgage. The court said that it might, in a proper case, compel the railroad company to convey to the complainants, but that it could make no decree which would operate directly upon the land, and that it therefore could not decree a foreclosure, nor a sale of the land lying in Mississippi.

Guarantee Trust & S. D. Co. v. Delta & P. Land Co. 43 C. C. A. 396, 104 Fed. 5, held that a sale of lands owned by a railroad company in Mississippi, by a master or commissioner appointed by a decree rendered in a United States circuit court for the western district of Tennessee, in a suit to foreclose a mortgage upon the property, does not affect the title, since the court had no jurisdiction to decree the sale. The case is distinguished from Muller v. Dows, 94 U. S. 444, 24 L. ed. 207, supra, upon the ground that in the latter case the sale was made at the instance of the trustees in the mortgage, who, notwithstanding the appeal, could be directed by the trial court to join in a conveyance; and that the mortgagor was required to execute a deed of assurance to the purchaser at the sale; whereas, in the case at bar the action was brought by a bondholder, and there was no deed of assurance either by the trustees or by the mortgagor. It is further pointed out that the property involved in the case at bar did not constitute a part of the railroad, but was wild and uncultivated land. This fact in itself, however, would not seem to be sufficient to distinguish the case. on principle, from the Muller Case, though it is obvious that there is a greater necessity for the exercise of the power to decree a sale of so much of the property as is within another state when the property constitutes a part of the line of the road, than when it is not a part of such line; and, therefore, such fact

might affect the court's discretion as to the assumption of jurisdiction.

A decree of foreclosure rendered in New York, and a deed executed by a referee appointed pursuant to that decree, covering real property in New York and Connecticut, are invalid so far as the property in Connecticut is concerned, since the courts of the state in which land is situated will not recognize the right of the courts in other states to affect directly the title to real estate in the former. Farmers' Loan & T. Co. v. Postal Teleg. Co. 55 Conn. 334, 3 Am. St. Rep. 53, 11 Atl. 184. The decree in this case was simply the ordinary decree of foreclosure and sale, without any direction for a conveyance by the mortgagor or owner of the equity of redemption to the purchaser at the sale; and the decision is, therefore, not inconsistent with those above cited which sustain the jurisdiction.

A decree of sale of real property upon foreclosure of a mortgage and a deed made in pursuance of it are ineffective to pass the title to real property in another state, whether the sale is made through the instrumentality of some officer designated by statute, or appointed by the court. Pittsburgh & State Line R. Co. v. Rothschild. 8 Sadler (Pa.) 83, 4 Atl. 385. This decision seems to be explainable in the same way as the preceding one.

In the two cases next cited the court seems to have been of the opinion that it was impossible to make a decree of foreclosure effective with respect to property beyond the jurisdiction, though neither expressly denies the power to make the decree thus effective by the requisition of a conveyance or release from mortgagor or owner of the equity of redemption.

The courts of Ohio have no jurisdiction to enforce the remedy of bondholders by the foreclosure of a mortgage upon the part of a railroad in another state. Eaton & H. R. Co. v. Hunt, 20 Ind. 457. The court said that, although the court of one state may act in personam upon an individual touching real property owned by him in another state, even to ordering him to sell it, yet, if he refuses obedience to the order, the court cannot appoint a commissioner to make the sale in his stead, and is powerless to effect the sale.

A court of New York has no jurisdiction. in a suit for foreclosure of a mortgage covering real property situated in New York and other states, and used as an entirety by a telegraph company, to decree a sale of so much of the property as is stiuated beyond the limits of the state. Farmers' Loan & T. Co. v. Bankers' & M. Teleg. Co. 44 Hun, 400. The decree in this case, in addition to the direction of a sale, adjudged that the purchaser of the property should be let into the possession and enjoyment thereof, and that every person in possession thereof should surrender the same upon the production of the referee's deed, and that the purchaser should hold and enjoy the property. The court intimated that there was no way in which such provision could be enforced or made effective.

In Cook v. Weigley (N. J. Eq.) 59 Atl. 1029, it seems to be assumed that the jurisdiction of a suit in New Jersey to foreclose a mortgage upon an island in the Hudson river was dependent upon whether the island, under the boundary agreement between New York and New Jersey, was within the latter's jurisdic