Imagens das páginas
PDF
ePub

tion. As a matter of faot, however, it was ience and disadvantage of selling it in parcels held that the defendants were already preclud- furnish a strong reason for the exercise of dised as to the jurisdictional question by the fore cretion in favor of the jurisdiction,—a reason closure decree.

which is lacking when the entire mortgaged Whether or not the parties to a mortgage property is beyond the territorial jurisdiction. covering real property in New York and other Thus, Eaton v. McCall, 86 Me. 346, 41 Am. states may, with respect to the property in St. Rep. 561, 29 Atl. 1103, asserted the juNew York, exclude the jurisdiction of the court risdiction of a court in a proper case to foreto foreclose the mortgage by an express provi- close a mortgage upon land in another state, sion therein making a sale of the premises by and to make the decree effective by a deed rethe mortgagee the exclusive remedy in case of quiring the mortgagor to convey ; but held default in payment, they may do so with re. that the court will not exercise such jurisdicspect to land in the other states in the ab tion where the entire property is situated with sence of statutes of such other states upon the out the state, and no reason is shown why the subject. Farmers' Loan & T. Co. v. Bankers' mortgage cannot be foreclosed according to the & M. Teleg. Co. 44 Hun, 400.

laws of the place where the land is situated, A court of a province has no power to order without loss or inconvenience. a sale as an entirety of a division of a railway, part of which is within and part without

e. Suit to redeem. its jurisdiction. Grey v. Manitoba & N. W. R. Co. (1897; P. C.) A. C. 254, 66 L. J. P. C.

An action may be maintained in New York N. S. 66. The court said in this case : “The

which is substantially to redeem from a forthing asked for by the bill is a judicial sale of

feiture in a lease of land in another state; and land partly within and partly out of the ju

the court will confer the final relief of possesrisdiction as an entire thing, and with specific sion, and may, as an incident, decree defendant directions by the court. It is impossible to do

to deliver up possession of the land to the ownthat; the decree of the court below does not

er. Chase v. Knickerbocker Phosphate Co. 32 do it directly, and it has been hardly more

App. Div. 400, 53 N. Y. Supp. 220. than suggested at the bar that there is any

A court having jurisdiction of the parties principle or authority to justify it." The

may relieve against the forfeiture of a lease question was not presented as to the power to

of mining property in another state for nonpaygrant a decree directing a sale of land beyond ment of rent, although it cannot restore the

Sunthe jurisdiction, in connection with a decree re property to the possession of the lessee. quiring a conveyance by the mortgagor or own

day Lake Min. Co. v. Wakefield, 72 Wis. 204, er of the equity of redemption to

the pur

39 N. W. 136. chaser at the sale.

It was held in Henderson y. Bank of IlamIn Strange v. Radford, 15 Ont. Rep. 145, an

ilton, 23 Can. S. C. 716, however, that a court action in Ontario for sale, for delivery of pos

of Ontario had no jurisdiction of a suit, by one session, and for relief under a covenant in a

who had recovered a judgment in Manitoba, mortgage upon land in Manitoba, the court said which, being registered, was, by virtue of a that the plaintiff might have a judgment of

statute of Manitoba, a lien upon real property foreclosure, as such judgment would operate

there, to releem from a prior mortgage upon in personam to extinguish the mortgagor's per

the land. The decision was upon the ground sonal right of redemption; but that the court that ine charge upon the land was exclusively would not go further and decree a sale of the

a real right, affecting the lands, unaccompaproperty.

nied by any personal liability or equity enforce. A suit to foreclose lien created by the able in personam ; and that the courts of Mantransfer to plaintiff, as collateral security, of

itoba restrict the right which they give in such a receipt evidencing the ownership of an equi

cases to a sale of the lands. table estate in common in lands in New York,

f. Suit to rcform deed; or to have deed deis in rem and local, and cannot, therefore, be

clared a mortgage. maintained in Michigan, Richard v. Boyd, 124 Mich. 396, 83 X. W. 106. The Michigan stat

A court of one state has jurisdiction of a ute provides that actions for the recovery of suit to reform a deed of land in another state any real estate, or for the recovery of the pog. by incorporating therein a personal covenant session of real estate, shall be tried in the of seisin. Bethell v. Bethell, 92 Ind. 318. The county where the subject of the action shall be

decision is upon the ground that a decree corsituated.

recting a mistake operates upon the contract It will be observed that in the cases above and parties; and, where the contract is made cited, which sustained the jurisdiction of a in the state where the parties reside, the suit court of one state or country of a suit to fore. to reform it is properly brought in that state. close a mortgage in respect of real property A court of equity of the state in which the in another state or country, the property in parties reside has jurisdiction to decree that a question was part of a parcel used as an en deed, absolute in form, to property in another tirety, and another part of which was within state, is, in effect, a mortgage merely. Reed the territorial jurisdiction of the court; and v. Reed, 75 Me. 264. such fact to some extent undoubtedly qualifies So, Clark v. Seagraves, 186 Mass. 430, 71 N. and limits those decisions. As a matter of E. 813, held that a bill would lie in Massachuprinciple, however, and so far as the absolute

setts to have a deed absolute on its face de. right to take jurisdiction is concerned, it would clared a mortgage, and to redeem therefrom, seem to make no difference whether all, or only

though the land lay outside the state, particu. part, of the property covered by the mortgage

larly where the deed was made in and between is beyond the territorial jurisdiction. When,

citizens of the state; since such a bill is one for however, the mortgaged property, which is used

relief against fraud, and is not a bill dealing as an entirety, is partly within and partly with

with the title to an estate in land. out the territorial jurisdiction, the inconven

Lindley v. O'Reilly, 50 N. J. L. 636, 1 L. R.

[ocr errors]

A. 79, 7 Am. St. Kep. 802, 15 Atl. 379, seems to Roberts v. Roberts, 124 Mich. 414, 83 N. W. 132.
assume that a bill to have a deed absolute on its to the effect that a suit to compel the produc.
face declared a mortgage, and to redeem there. tion of a deed could be maintained in another
from, wouid lie in one state in respect of lund county than where the lands lay, notwith-
in another, and that a reconveyance pursuant to standing Mich. Comp. Laws, § 434, providing
the decree in such a case would be effectual : that a suit in chancery shall be commenced in
although it held that a decree rendered by a thic circuit court for the county in which the
court of Pennsylvania, having jurisdiction of property in dispute is situated, if the subject
the parties, which dec ared that a deed of land matter is local.
in New Jersey, absolute on its face, was intend. In D'Ivernois v. Leavitt, 23 Barb. 63, involv.
ed as a mortgage, and that the desendant se. ing an assignment for creditors, made in New
cured had been paid, and which directed the York, covering real property in another state,
executor of the deceased grantee to execute and the court said: “The rights relating to the ac-
deliver to the grantor a deed of reconveyance, quisition, enjoyment, and disposition of reat
though conclusive within l'ennsylvania, could property are prescribed and regulated exclusive.
not be allowed to affect the title to the lands, ly by the laws of the country in which the
and did not extinguish the grantee's title, in property is situated. Every community, inde-
the absence of a conveyance pursuant to the pendent and sovereign, possesses this power as
decree.

an inherent and essential element of its soy. Gunn v. Harper, 30 Ont. Rep. 650, while con- ereignty. No other community can interfere ceding that a bill would lie in Ontario to have with the method by which real property may a deed absolute on its face declared a mortgage, he acquired or lost, the tenure by which it may and for redemption, although the land affected be held, the duration or quantity of interest was out of the province, if the action were in it, or the conditions to which the enjoyment against the original grantee alone, held that the of it is subject ; but an instrument purporting suit would not lie where the original grantee to dispose of real property situated in another had conveyed to other persons. The decision state or country may, nevertheless, be within is upon the ground that the jurisdiction in case the reach of the laws of the state in which the of land beyond the territorial jurisdiction is instrument is executed, and may be assailed on confined to cases in which there is either a the ground, for instance, that the instrument contract between the parties, or something in was in fraud of its own citizens, or that it was the nature of a trust.

obtained fraudulently from the grantor."

Mussina V. Alling, 11 La. Ann. 568, held g. Relief from fraud.

that a court of Louisiana had no jurisdiction

to compel a reconveyance of land in Texas up1. A8 between parties or privies.

on the ground of fraud, although the defendant A court of equity of one state or country,

was within its jurisdiction. The court, while having personal jurisdiction of the parties may

conceding that the courts of Louisiana have grant relief to a pourty who has been fraudu.

both common-law and equity jurisdiction in the lently deprived of the title, or evidence of title,

sense that they are generally competent to af. to real property in another state or country, by

ford such relief to parties as may be demanded requiring a reconveyance.

in a judicial proceeding, either at law or in Thus, it was held by Lord Chancellor Not. chancery, in those states which recognize the tingham, in Arglasse v. Muschamp, 1 Vern. 75.

English division of remedies, said that it did that courts of equity in England may relieve

not foilow that all the prerogatives claimed by against conveyances obtained by fraud, on land

courts of common law and courts of chancery, in Ireland. The decision

affirmed

and all artificial rules and peculiar dogmas, rehearing by Lord Keeper North (1 Vern. 135). should be usurped by the courts of Louisiana. who said that the objection that the court

This decision, however, seems to have been was deficient in power to compel a performance

overruled by Seixas v. King, 39 La. Ann. 510, of its decree because it could not sequester the 2 So. 416, infra. lands in question was of no weight; and it did

In Monnett v. Turpie, 132 Ind. 482, 32 N. E. not apppear but that the defendant had lands 328, the plaintif prayed a judgment disaffirmin England, and then those would be subject ing and canceling deeds to real property in to a sequestration.

other states, and asked that the title to lands It was held in King v. Pillow, 90 Tenn. 287. | by decree of the court be reinvested in the 16 S. W. 469, that a court of chancerymas

plaintiff, free and discharged from all claims compel a grantor within its jurisdiction to sup.

of the defendanty, upon the ground that the ply a conveyance to a tract of land in Arkansas. deeds were procured fraudulently and without a deed of which he had obtained possession

consideration from the grantor, who was at fraudulently, and destroyed after delivery.

the time a person of unsound mind. The only The same position was taken in Pillow v. point involved in the appeal arose from the King, 55 Ark. 633, 18 S. W. 764, which held action of the trial court in refusing to grant that the Tennessee court had jurisdiction to

the plaintiff a trial by jury; and the corractgrant the decree involved in the last case,

ness of that ruling turned upon the question McGee v. Sweeney. 84 Cal. 100, 23 l'ac. 1117, whether the action was one to quiet title, in held that a court of California, by reason of its

which case, under the provision of the Code, control over the parties, had jurisdiction of a

it was triable by jury, or an action for the can. suit to have a deed to real property In Pennsyl. relation of the deeds, in which case it would vania declared void, and for a reconveyance.

fall within the exclusive jurisdiction of a A court of Michigan, having jurisdiction of court of equity, and therefore be triable by the the person of defendant, has jurisdiction of a court witho!!t a jury. The court said that the suit by the grantor to set aside a deed, and fact that the lard lay beyond the territorial compei i reconveyance of land in Missouri on jurisdiction conclusively characterized the acthe ground of fraud. Noble v. Grandin, 125 tion as one for equitable relief, since it would Mich. 383, 84 N. W. 465. The court cites be wholly beyond the jurisdiction of the courts

was

[ocr errors]

of the state to quiet the title to such land, , to set aside a conveyance of land in another whereas in an action in equity the court hav. upon the ground of fraud, the court said that ing jurisdiction of the person is able, by proc. it was difficult to perceive how a bill to set ess against the defendants in personam, to aside a conveyance of land situated abroad reenforce its decrees affecting land without, as lated to the title of the land, any more than well as within, the state.

a bill to have a conveyance decreed ; that in A court of New York, having jurisdiction of each case the object is to devest the title from the parties, may entertain a suit by the stock. the person who holds it, and in each case holders of a corporation to have declared void is attained in the same mode, by process of the the action of such corporation, and of another court against the person of the owner. corporation controlled by the same directors, in So, in Guerrant v. Fowler, 1 Hen. & M. 5, canceling a lease of real property in Mexico. it was held that a person being within the Jacobs v. Mexican Sugar Ref. Co. 104 App. commonwealth may be decreed to execute a Div. 242, 93 N. Y. Supp. 776. The court said conveyance for lands lying in another state, or that the plaintiffs did not ask, nor could they to cancel a deed for such lands, obtained by have obtained, a judgment which would give fraud. them possession of the property.

But a decree of a court of another state Some of the cases that concede the jurisdic which had jurisdiction of the parties, declartion of a court of equity of one state or coun- ing an exchange of lands void, and requiring try, having personal jurisdiction of the parties reconveyances, does not of itself, and in the to grant relief from a conveyance, obtained by absence of conveyances pursuant to the decree, fraud, of land in another state or country, take devest the title to land in Texas. Fryer v. the position that the decree must be in the form Meyers (Tex.) 13 S. W. 1025. of one compelling the reconveyance, and that Nor are the parties who procured the dea decree merely canceling the conveyance cree estopped to assert the title to the land which is attacked on the ground of fraud, conveyed to them in the exchange, they never would be beyond the power of the court.

having complied with the terms of the decree, Thus, in Cooley v. Scarlett, 38 III. 316, 87 nor claimed the lands which they conveyed in Am. Dec. 298, the court said that it could not the exchange. Ibid. affirm a decree canceling, upon the ground of A court of Texas bas jurisdiction of a suit fraud, deeds to real property upon land in an. to rescind a sale of land therein on the ground other state; but that the decree might be re- of fraud and lack of consideration, notwithmodeled so as to bring it within the principles standing that the purported consideration was of chancery jurisdiction, and still afford some the conveyance of land in Tennessee to which, protection to the complainant. It then said it is alleged, the defendant had no title, and that the court could compel the defendants. which therefore constituted no consideration who were personally within the jurisdiction of for the conveyance of the land in Texas. Paul the court, to execute to the complainant a re v. Chenault (Tex. Civ. App.) 59 S. W. 579. lease of all claims acquired through the deed The objection made to the jurisdiction was that from him ; and that, if they refused to do so. it involved an inquiry into the title of land in they could be attached for contempt, and held | Tennessee, and that the court had no jurisdicin custody until they should execute the decree : tion to determine that issue. The court, howand that if, in the meantime, it should be made ever, overruled the demurrer to the jurisdicto appear that they were seeking to encumber tion, and proceeded to pass upon the title to titles by conveyances to third persons, that also the Tennessee land for the purposes of the might be treated as a contempt for which the suit. court could attach and punish them; and that, The decision in Cumberland Coal & I. Co. v. if they went beyond the jurisdiction, the court Hoffman Steam Coal Co. 30 Barb. 159, that a could appoint special commissioner to make court of New York would not entertain a suit the conveyance in their stead.

between two Maryland corporations to annul a A court of Kentucky has no jurisdiction tu conveyance of land in the latter state on the render a judgment declaring a deed to real round of fraud, the conveyance having been property in New Jersey void ; and has no ju executed and acknowledged in Maryland and risdiction to decree a conveyance or delivery of put upon record there, is not referable to genpossession founded on that decree. Davis v. eral principles, but to a provision of the Code Headley, 22 N. J. Eq. 115. The judgment in defining the rights of nonresidents to bring acthis case, which the court of New Jersey re tions against foreign corporations. fused to recognize or enforce, not only declared In Blake v. Blake, 18 Week. Rep. 944, where that the conveyance should be set aside and the bill was filed to set aside certain deeds re. held for naught, but also provided that the lating exclusively to property in Ireland, the grantee should be restrained from setting up parties being residents of Ireland, and the conthat conveyance in any suit touching the prop- tract out of which the litigation arose having erty.

been made there, the court sustained a plea to Seixas v. King, 39 La. Ann. 510, 2 So. 416, the jurisdiction, upon the ground that the matoverruled an exception to the jurisdiction of a ter should be decided by the courts of Ireland. court of Louisiana over a suit against a resi Some parts of the opinion in this case indicate dent of Lorisiana to annul a transfer of real that the court declined jurisdiction as a matestate in Mississippi. It is implied, however. ter of discretion ; but it is stated in the report that the decree must be in the form of a per of the case that the defendants were served sonal decree against the defendant compelling out of the jurisdiction, and it is not stated that a conveyance, rather than a direct decree in they appeared in the case except to plead to the rem annulling the conveyance to the defend jurisdiction; and the opinion states that the ant.

case is governed by Cookney V. Anderson, 32 In De Klyn v. Watkins, 3 Sandf. Ch. 185, L. J. Ch. N. S. 305, Affirmed in 32 L. J. Ch. however, where it was held that a court of X. S. 427 (supra, II., c), which would seem to equity of one state has jurisdiction of a suit indicate that the decision was upon the ground

that the defendants were not personally sub ject land to the exigencies of execution, then ject to the jurisdiction.

no personal judgment can touch the real re

sult to be accomplished. The distinction which 2. As between one party and creditors of the separates between cases of fraud where the other.

court will act and will not act is marked by

Lord Nottingham in a case of Carteret v. PetAs shown in the last subdivision, the requisi. | ty, 2 Swanst. 323, note. He said this court tion of a reconveyance affords an adequate could proceed to a decree where the imprison. means of granting relief from a fraudulent con ment of the person is the most proper means veyance of real property in another jurisdic to effect that which is decreed to be done, viz., tion, when the suit is between the parties to the payment of money, making a conveyance, the original conveyance, or their privies. The or the like. But where no obedience of the situation is quite different when the suit is by person imprisoned, or any act of his, can sufcreditors of a grantor, seeking to set aside a ficiently execute such a decree, then it is in conveyance of real property in another jurisdic vain to hold such a plea." tion as a fraud upon them, since the creditors, In the subsequent case of Pavey v. David. even if successful in maintaining their conten son, 23 Ont. App. Rep. 9, involving the same tion, are not entitled to a decree requiring the transaction that was considered in the last conveyance of the land to them, but at most case, it appeared that the grantee of the propare only entitled to a decree which will suberty had given back a mortgage, containing a ject the land to the payment of their claims : covenant for payment; and the attempt in and it is difficult to work out this relief by a this case was not to set aside the conveyance, decree in personam. According to the weight but to have the mortgagee declared a trustee, of authority, therefore, a creditor of the grant for the execution debtor, of the mortgage debt or cannot maintain a bill in one state or coun and the moneys secured thereby. The majority try to set aside a conveyance of land in an. of the court of appeals were of the opinion that other, upon the ground that the conveyance the action could be maintained, notwithstandwas fraudulent as to him.

ing that the mortgaged land was situated in a Thus, a suit will not lie by a judgment foreign jurisdiction. The decision was upon creditor in one state to set aside a conveyance the ground that no relief was sought in reby the judgment debtor of land in another spect of the mortgaged land, but that it was state, as a fraud upon the judgment creditor. the debt that was sought to be reached; and Gray v. Folwell, 57 N. J. Eq. 446, 41 Atl. 869. the fact that it was secured by lands in another The court said that it was quite beyond the jurisdiction was a mere incident. power of the court to make any decree which This decision was, however, reversed on apwould subject the land outside of the state to peal by the supreme court of Canada (Purthe lien, or by any decree apply it to the pay. dom v. Pavey, 26 Can. S. C. 412). It is dif. ment of the judgment.

ficult to determine the exact ground of the A judgment creditor's suit cannot be brought supreme court's decision. In one part of the in New York, founded upon a judgment in opinion, it seems to be put upon the ground New York, to affect lands of the judgment that the bill sought a declaration of trust, not debtor situated in another state, on the ground of the debt alone, but of the security,--that is, that the debtor had fraudulently conveyed them of the foreign lands so far as they were a away. Nicholson v. Leavitt, 4 Sandf. 252. security; in another part, however, the court This was before the adoption of the Code, and said that the validity or invalidity of the the decision is upon the ground that a judg. transaction must depend upon the les rei sitæ, ment creditor's suit proceeds on the footing of and that there was no allegation that, accorda lien, and that there is no such lien under a ing to that law, a constructive trust by operaNew York judgment with respect to lands in tion of law would arise by reason of the intent another state. The court said that it might be to hinder or delay creditors, or that even an exthat, under the broad provisions of the Code, a press trust must necessarily inure to the benefit, judgment creditor may reach the real property or be available to the satisfaction, of creditors; of the debtor out of the state.

and that no presumption to that effect could be Lide v. Parker, 60 Ala. 165, held that the indulged. This would seem to indicate that the Alabama statute, enabling a creditor without a plaintiff must fail on the merits even, and withlien to file a bill to subject to the payment of out reference to the jurisdiction; but the his debt property fraudulently conveyed by his court said in this connection that, from debtor, did not apply to realty in another state. the fact alone that the question depended upon

West Point Min. & Mfg. Co. v. Allen (Ala.) the ler rei sita, it followed that the forum of 39 So, 331, is to the same effect as the last case. the situs was the proper forum. An execution creditor cannot maintain a suit Carpenter v. Strange, 141 U. S. 87, 35 L. in a court of the defendant's domicil to set ed. 640, 11 Sup. Ct. Rep. 960, held that a deaside conveyances of land beyond the jurisdic cree of a court of New York which had pertion, upon the ground that they were fraudu sonal jurisdiction of the parties, declaring a lent as against creditors. Burns v. Davidson, deed executed by testator to real property in 21 Ont. Rep. 547. The court said : "Where Tennessee void as to a debt due by testator to fraud exists in respect to specific property out plaintiff, but not directing a conveyance of the of the jurisdiction, whereby in conscience it land, nor in any other way attempting to should be the property of the rightful claim exert control over defendant with respect to ant

as against the fraudulent holder, these land, was not binding upon the courts of Ten. being within the jurisdiction, a court of equity nessee. can

decree according to the equities, and Kirdahi v. Basha, 36 Misc. 715, 74 N. Y. operate on the person of the defendant so that Supp. 383, upheld the jurisdiction of a court of he shall convey the land to the one entitled. New York over a suit in equity by a judgment But where the manner of relief is, as here, not creditor to have a mortgage, executed by the to order conveyances inter partes, but to sub debtor upon land in New Jersey, declared

fraudulent and void, and to compel the mort- tion. Schmaltz v. York Mfg. Co. 204 Pa. 1, 59 gagee to execute and deliver a satisfaction of L. R. A. 907, 93 Am. St. Rep. 782, 53 Atl. 522. it, and restraining both mortgagor and mort- In Binney's Case, 2 Bland, Ch. 99, 148, the gagee from transferring or assigning any inter- court said : "The dam, the erection of which est in the land pending an action in a New Jer- is complained of, is to be extended entirely sey court to obtain satisfaction of the judg. across the River Potomac, and, therefore, one ment out of the land in that state. The deci- part of it must rest upon the territory of sion, which rests upon the idea that a decree Maryland, and the other upon that of Virginia ; compelling a release of the mortgage operates consequently, to that extent each state must in personam, is of doubtful authority, since have an exclusive jurisdiction, so far as it may such a release would extinguish the mortgage, be necessary to prevent its erection by injuncwhich, at the most, is only invalid as against tion. But the object of preventing the erection the judgment creditor, and is valid as between of this dam is to put a stop to the expenditure the parties to it.

of the funds of the body politic, for other than In Jones v. Geddes, 1 Phill. Ch. 724, where a corporate purposes, within the District of Cobill was filed by assignees of a bankrupt to lumbia ; and consequently, so far only as the set aside, on the ground of fraud, a heritable body politic (the Chesapeake & Ohio Canal bond charged upon the real estate in Scotland, Company which was proposing to build the and to enjoin defendants from prosecuting a dam) may be restrained by injunction from process of ranking and sale for the enforce- | making such illegal expenditures anywhere, the ment of the bond, which they had commenced courts of justice of each government must be in a court of Scotland, the Lord Chancellor allowed to have equal and concurrent jurisdicsaid that, the parties being residents of Eng. tion." land, the English court of chancery might take Willey v. Decker, 11 Wyo. 496, 100 Am. St. jurisdiction; but, in the exercise of discretion. Rep. 939, 73 Pac. 210, held that a court of he declined to entertain the suit because the | Wyoming had jurisdiction, at the instance of matter could be more conveniently litigated in owners of land in Montana who had acquired Scotland.

by prior appropriation the right to use the h. Injunction.

water of a stream for irrigation by means of a

ditch and headgate in Wyoming, to restrain See also Thomas v. Hukill, 131 Pa. 298, 18 Atl. others from diverting the water by means of

875; Chase v. Knickerbocker Phosphate Co. ditches located in Wyoming or in Montana. 32 App. Div. 400, 53 N. Y. Supp. 220,-- So Miller v. Rickey, 127 Fed. 573, held that supra, II., a; Kirklin V. Atlas Sav. & L. a Federal court sitting in Nevada had jurisdic. Asso. (Tenn. Ch. App.) 60 S. W. 149; Ft. | tion, at the instance of the owners of land in Wayne Trust Co. v. Sihler (Ind. App.) 72 N. that state, to enjoin defendant from wrongfulE. 494.-8upra, III., c; Kirdahi v. Basha, ly diverting in California waters of a stream 36 Misc. 715, 74 N. Y. Supp. 383, supra, III., which flowed through the complainants' land. g, 2; Bowers v. Durant, 43 Hun, 348, infra,

Northern Indiana R. Co. v. Michigan C. R. III., j.

Co. 15 How. 233, 14 L. ed. 674, however, held

that the United States circuit court of the disAn injunction is strictly in personam; and trict of Michigan had no jurisdiction of a suit therefore, if a proper case for an injunction is by an Indiana corporation, claiming an excluotherwise made out, jurisdiction of the court to sive right under its charter to build and maingrant the same will not be defeated by the fact tain a railroad in a certain part of Indiana, to that it has reference to real property beyond enjoin the defendant from constructing a road the territorial jurisdiction.

within such territory. The court said that it A court of equity of Illinois has jurisdiction would be readily admitted that no action at law of a bill to enjoin defendant from interfering could be sustained in the district of Michigan with the right of way claimed by the com- for injuries done in Indiana ; and that no acplainant over land situated in another state, if tion of ejectment, or for trespass on real propthe defendant is personally served, since the erty, could have a more decidedly local charjurisdiction in equity by way of injunction is acter than the appropriate remedy for the instrictly in personam. Alexander v. Tolleston juries complained of; and that such character Club, 110 III. 65.

was not changed by a bill in chancery. The A resident of a state may be enjoined from case is distinguished from Massie v. Watts, 6 going into another state and committing acts Cranch, 148, 3 L. ed. 181, apparently upon the injurious to the property of the plaintiffs there. ground that the controversy did not arise out Great Falls Mfg. Co. v. Worster, 23 N. H. of a contract, or fraud, and was not connected 462.

with a trust, express or implied. A court of equity, at the instance of a In Mariposa Co. v. Garrison, 26 How. Pr. grantee in a deed which is sufficient to pass the 448, it was said that the court, having obtained legal title to real property in another state, jurisdiction of the person of defendant, has jubut is so defectively acknowledged that it can- risdiction to compel specific performance of a not be recorded so as to charge third persons contract in relation to lands situate in another with constructive notice, may enjoin the grant- state; but that the granting of a preliminary or from conveying the property to third per- injunction is a matter of discretion; and, 'sons. Frank v. Peyton, 82 Ky. 150.

where the plaintiff has adequate remedies for A court of equity of one state has jurisdic- the preservation and enforcement of all his tion of a suit, by one of its citizens holding a rights in the courts of the state in which the mortgage upon real property in another state, land is situated, it is not sound discretion to to enjoin a citizen from removing from the aid, by injunction, in drawing within the juproperty alleged fixtures which he had fur- risdiction of the court of another state the de. nished under a conditional contract of sale,- cision of those questions which can more apat least where the nonresident mortgagor vol- propriately be investigated and determined in untarily comes in and submits to the jurisdic. I the state where the land is situated.

« AnteriorContinuar »