REAL ACTIONS.

EPITOME OF CASES.

Sec. 721. Conflict of jurisdiction between courts of concurrent jurisdiction. In cases of conflict of jurisdiction, it is well settled, as the general rule, that between two courts of concurrent jurisdiction, the court which first acquires cognizance of the controversy or obtains possession of the property in dispute is entitled to dispose of it without interference or interruption from the coordinate court. Having first acquired jurisdiction, it is entitled to retain it until the end of litigation, and should proceed to decide all questions which legitimately flow out of the subject-matter of the controversy in the case, and finally dispose of it. Parsons v. Snider, 42 W. Va. 517 (26 S. E. Rep. 285); Craig v. Hoge, 95 Va. 275 (28 S. E. Rep. 317). Citing, Wells, Jur., § 156; Haden v. Garden, 7 Leigh 157; City of Epelika v. Daniel, 59 Ala. 211; Brooks v. Delaplaine, 1 Md., Ch. 351; Brown v. Wallace, 4 Gill & J. 479; Carson v. Dunham, 149 Mass. 52 (20 N. E. Rep. 312; 14 Am. St. Rep. 397; 3 L. R. A. 203); Gay v. Iron Co., 94 Ala. 303 (11 So. Rep. 353; 33 Am. St. Rep. 122; 16 L. R. A. 564); Peck v. Jenness, 7 How. 624; Shelby v. Bacon, 10 How. 56; Freeman v. Howe, 24 How. 450, 461; Smith v. McIver, 9 Wheat. 532; Buck v. Colbath, 3 Wall. 334; Union Trust Co. v. Rockford, R. I. & St. L. R. Co., 6 Biss. 197 (Fed. Cas. No. 14,401); Gaylord v. Railroad Co., 6 Biss. 286 (Fed. Cas. No. 5,284); Sharon v. Terry, 36 Fed. Rep. 337).

Sec. 722. Jurisdiction depending on title involved. A statute (Ark. Laws 1875, p. 124), providing that a court "shall have no jurisdiction of any action where the title to real estate is in controversy," does not deprive it of jurisdiction to enforce its judgment by ordering a sale of land in an action where the title to the land is in no way involved. Waldo v.

Thweatt, 64 Ark. 126 (40 S. W. Rep. 782). The mere assertion that title is involved will not oust a court of jurisdiction for that reason. Barrett v. Cox, 112 Mich. 220 (70 N. W. Rep. 446). Applying Kan. Laws 1895, p. 156, § 14, it is held that title to land is not involved where a defendant to an action to foreclose a mortgage pleads title to the land in himself and not in the mortgagor at the time the mortgage was exceuted. Park v. Busenbark, 59 Kan. 65 (51 Pac. Rep. 907). Where the object of an action of trespass is to determine the true boundary line between lots, title is not necessarily involved so as to oust the jurisdiction of a justice of the peace under New York Code, § 2951. La Ruc v. Smith, 153 N. Y. 428 (47 N. E. Rep. 796). Construing Mo. Const. 1875, art. 6, § 12, giving exclusive appellate jurisdiction to the supreme court of that state "in cases involving title to real estate," it is held that suits for the enforcement of special tax bills, mechanics' liens, and vendors' liens, are not suits involving the title to real estate. Barber Asphalt Paving Co. v. Hezel, 138 Mo. 228 (39 S. W. Rep. 781). Nor is an action to foreclose a mortgage or trust deed. Little v. Reid, 141 Mo. 242 (42 S. W. Rep. 674). Title to real estate is not involved within the meaning of this constitutional provision, unless the result of the litigation may directly, without subsequent proceeding, affect the title to real estate, and whether it may do so is to be determined from the entire record. May V. Jarvis-Conklin Mortg. Trust Co., 138 Mo. 447 (40 S. W. Rep. 122). An action of replevin to recover a crop does not involve title to real estate, although the title to the crop may depend on the ownership of the land. Fischer v. Johnson, 139 Mo. 433 (41 S. W. Rep. 203). An action to determine priority of rights of judgment creditors to redeem land from sale on judgment, does not relate to or involve a freehold. Paddack v. Staley, 24 Colo. 188 (49 Pac. Rep. 281). A freehold is involved in an action for the assignment of dower, Doty v. Irwin, 168 Ill. 50 (47 N. E. Rep. 768); in an action. to set aside a conveyance of land on the ground of fraud, Hand v. Waddell, 167 Ill. 402 (47 N. E. Rep. 772); but a freehold is not involved in an action to determine the prority of liens on land. Cravens v. Lee, 24 Colo. 225 (49 Pac. Rep. 424). Ga. Const., art. 6, § 16, par. 6; Code, § 5172, con

strued and applied-jurisdiction in actions "respecting titles to lands." Saffold v. Scottish-Amer. Mortg. Co., 98 Ga. 785 (27 S. E. Rep. 208).

Sec. 723. Jurisdiction-State and federal courts. Where a state court has acquired jurisdiction in a case, entered judgment and is proceeding to its enforcement, the appointment of a receiver by the United States court for a defendant corporation, cannot divest the jurisdiction of the state court and stay the execution issued to enforce the judgment. Lake Bristeneau Lum. Co. v. Mimms, 49 La. 1283 (22 So. Rep. 730). U. S. Const., art. 1, § 8, construed and applied—jurisdiction of federal courts over land ceded by the state to the United States for federal buildings. State v. Mack, 23 Nev. 359 (47 Pac. Rep. 763; 62 Am. St. Rep. 811).

Sec. 724. Jurisdiction—Legal and equitable. The existence of a remedy at law cannot deprive courts of equity of jurisdiction in a matter that comes within the scope of their elementary jurisdiction. Hull v. Watts, 95 Va. 10 (27 S. E. Rep. 829). Courts of equity will not interpose to ascertain boundaries unless in addition to the naked confusion of the controverted boundaries there is suggested some peculiar equity which has arisen from the conduct, situation, or relation of the parties. Collins v. Sutton, 94 Va. 127 (26 S. E. Rep. 415). Although a court of equity has not jurisdiction of an action to settle a boundary, its jurisdiction of an action to quiet title to, and enjoin interference with, land, is not ousted because the question of determining a boundary is also in issue. Campbell v. Adsit, 111 Mich. 575 (70 N. W. Rep. 141). Equity will not entertain jurisdiction to settle an account as to rents between tenants in common and force the collection of the same, where the amount of rents received is certain and there is no complication of accounts. McCaw v. Barker, 115 Ala. 543 (22 So. Rep. 131). A court of equity will not assume jurisdiction of the administration of estates except in extraordinary cases. Goodman v. Kopperl, 169 Ill. 136 (48 N. E. Rep. 172). Equity will construe a devise when such construction is incidental to its general jurisdiction over trusts. A court of equity will not assume jurisdiction to construe a

will alleged to pass real estate, at the instance of an executor, who is not, by the terms of the will, given an estate in the property disposed of, nor charged with the performance of any trust or other duty in relation thereto. Torrey v. Torrey, 55 N. J. Eq. 410 (36 Atl. Rep. 1084). A court of equity having acquired jurisdiction to enjoin an irreparable injury to land will go on to do complete justice, though in doing so it has to try title and administer remedies which properly pertain to courts of law. Bettman v. Harness, 42 W. Va. 433 (26 S. E. Rep. 271; 36 L. R. A. 566); Miller v. Wills, 95 Va. 337 (28 S. E. Rep. 337). Equity may retain jurisdiction over an action in ejectment where the complaint also seeks cancellation of a bond for title on account of fraud. Turner

v. Newman, Ky. (39 S. W. Rep. 504). A suit in equity to annul a forged deed of land, and have it canceled, and the record of it declared void, brought by the legal owner of the land, who is the grantor named in the forged deed, or the party holding title from such grantor, who institutes suit to annul such forged deed while he is out of possession, is not taken out of equitable jurisdiction by the fact that the deed is void. It is not necessary, before bringing such suit, that the legal owner should establish his title and obtain possession of the land by ejectment at law. Hoopes v. Devaughn, 43 W. Va. 447 (27 S. E. Rep. 251). Equity enforces contracts and covenants in regard to the use of property entered into between prior grantors and grantees, especially if common property, or property descending from common sources, against subsequent owners affected with actual or constructive notice of such contracts and covenants. Trudeau v. Field, 69 Vt. 446 (38 Atl.

Rep. 162).

Sec. 725. Jurisdiction over lands in another county or state-Enjoining acts of non-residents. Where the court has jurisdiction of the parties, it may enjoin a threatened trespass upon lands lying in another county. Clad v. Paist, 181 Pa. St. 148 (37 Atl. Rep. 194). Where the same debt is secured by several mortgages upon lands in different counties, executed at different times, they may be regarded as one instrument for the purpose of giving jurisdiction to a court in either county to foreclose them. Commercial Nat.

Bank v. Johnson, 16 Wash. 536 (48 Pac. Rep. 267). A court of general equity jurisdiction, having the necessary parties before it, has jurisdiction to foreclose a trust mortgage on a railroad and its franchises, though part of the line is outside the state, or to direct the trustees to make the sale under the power in the mortgage. Craft v. Indianapolis, D. & W. Ry. Co., 166 Ill. 580 (46 N. E. Rep. 1182). A court of equity has jurisdiction to grant relief against the obstruction of a water course by a dam built by a non-resident so as to work an injury to a resident owner of adjoining land. Gordon v. Warfield, 74 Miss. 553 (21 So. Rep. 151).

Sec. 726. Jurisdiction-Particular courts-Miscellaneous cases. Under Tex. Rev. Stat. 1895, art. 996, the supreme court has no jurisdiction of an action to determine boundaries. New York & T. Land Co. v. Votaw, 91 Tex. 282 (42 S. W. Rep. 969). Miss. Const., § 156, giving the circuit court original jurisdiction of "all matters civil," is held to give it jurisdiction of actions of ejectment. Illinois Cent. R. Co. v. Le Blanc, 74 Miss. 650 (21 So. Rep. 760). Where the jurisdiction of a court and the right of the plaintiff to prosecute in it has once attached, that right cannot be arrested or taken away by proceedings by the defendant in any other court. Troy Fertilizer Co. v. Prestwood, 116 Ala. 119 (22 So. Rep. 262). In Virginia it is held that the holder of a mortgage debt, who has a right to maintain an action on a covenant of assumption made by a purchaser of the mortgaged premises, may maintain an action for personal judgment against such vendee in a jurisdiction where the parties may be found, although it be different from that in which the mortgaged land is located. Tatum v. Ballard, 94 Va. 370 (26 S. E. Rep. 871). Mo. Rev. Stat. 1889, § 2011, applied-bringing suit in county where land lies-change in boundary by change in the course of a river. Vogelsmeier v. Prendergast, 137 Mo. 271 (39 S. W. Rep. 83). W. Va. Code 1891, ch. 132, § 1—jurisdiction of court to decree sale of property-amended, Laws 1899, p. 166.

Sec. 727. Former adjudication-General principles. A party claiming title adverse to former adjudication by which