vol. 62. .
the({en'tl'llknaiboad,i,.:8,ctual was tak"ln, that iselUftj: cient"sofar:aa..thatmattel' is at all, relevant to the issue here. It this. court to show the Iltmost consideration for ,the CQurts,Qf:the state, ,but it ili1'not perceive4 how, in an)' view of the, matter, fl,.better right issb9\Vn in the receiver of the state cOQ.l't,t9.Aave the property in coptrovers)' than the officer of this court who is now iq actual pO!3session. The order requiring th,e receiver of this court to turn ovgJ; possession of the Chat· & 9olQ.ml:>us be denied.
1t:tUNICIPAL
etai.
v. September l.,
et aL
,;f L of. S.
(Circuit Court, D.
No.
fig. ", . .' i
of jurisqlctiqn may be raised by motion to dismiss, want being the bill. ' PERFORMAN-bi""-RESIO!nNCE PARTY.
A· suit to enforce a cont!ilct to'cOI1vey land should be brought In the district where one of partiesresid.e!;l. within Act March 3, 1887, as arnendepllx Act Aug. (25 Stat. 433), providing that, where jurisdiction. of l\. federal court Isto:unded only OU diversity of citizenship, suit shall be brOlight only in a district, the residence Of one of the parties; Act March S, 1875l;§'S(continued In '(orce by said: acts of 1887 and 1888), allOWing suit to enf!>roo-any, legal or .ElqlJitable lien on j)1' clail1l to, or to remove any incumbrWlce or lien or cloUd ,on. the title to real 01' personal property, to be malntarnE;ld 'In, the district Where the property is located, not applying to specific performance.
Suit: by' the· :Municipal Investment CQI;I1pany and another against J. M. Gardiner and another. Defendants move to dismiss. Motion granted. ' Ball, Wood & Oakley, fbr complainants. A. A, Chapin, for defendants. , JUdg,!:, This is a suitto enforce a contract for the all.51. for an accounting. Tbe bill alleges that thecomplainantsare of the st.ate of Illinois, and that the are cWzensof the state of Kentuckv. The substance of the avermentsw:hich pllrpprt to state of action is that the . Inyestment IC ,ofi1pany advanced money defendants to improve certafn real est.at'ein Jay county, Ind., for which they held option iri a !=If purchase; ,that the defendants, in con'l'}ideration of agreement of the Municipal Investment Company teo make further advancements, promised to bflve the legal title of the land t9compJ,a,inilut Cole tQlilecure the investment company for Ilpon the fllithqf, W;hich advancements made; and that in violation of the agreement the defendants took made a co-complainant,. the deed ip.tbeir, own names. Cole,
MUKICIPAL INV. CO. V.
955
is not shown to have any interest other than as a mere trustee for holding the legal title for the benefit pf the investment company. thllt,the legal title to the land The prayer istlJ,at the is held by the defendants .in trust for the performance of their agreement; that they be required to execute a deed to said Cole of said real estate, or,in default, that the master make a deed therefor; and that the court take an accounting, and ascertain how much is due the complainants for their advancements, and "award all other proper relief. . The defendants, move to dismiss the bill for want of jurisdiction, because neither of the parties to the suit is a citizen of this district. This case is not one where a plea in abatement is required to raise the question of jurisdiction. Here the citizenship of the parties is averred in the bill of complaint, and the alleged defect in the jurisdiction of the court is apparent. Where the want of jurisdiction is disclosed on the face of the bill, the defect may be reached by demurrer, Or taken advantage of without demurrer, by motion to dismiss. Coal Co. v.Blatchford, 11 Wall. 172. The defendants base their motion on the following provision of the act of March 3, 1887, as amended August 13, 1888 (25 Stat. 433), to wit: "And no civil suit shall be brought before either of said courts, against any person, by any original process or proceeding, in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different st..'ltes, suit shall be brought only in the district of the residence of either the plaintiff or the defendant."
The contention of the complainants is that this suit is maintainable upon the authority of section 8 of the act of March 3, 1875, which is continued in force by the acts of 1887 and 1888. The portion of section 8 material to the question in hand is as follows: "'fhat when in any suit, commenced in any circuit OO11rt of the United 'States, to enforce any leg-alar eqUitable lien upon, or claim to, or to remove llny incumbrance or lien or cloud upon, the title to real or personal property within the district where such suit is brought, one or more of the therein shall not be an inhabitant of, ()Il' found within, the said district, or Hhall not voluntarily appear thereto, it shall be lawful for the oourt to make -an order directing such absent defendant or defendants to appear, plead, answer or demur, by a certain day to be designated, Which order shall be served upon such absent defendant or defendants if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there be."
Section 8, having been continued in force by the acts of 1887 and 1888, must be construed as a part of the last-named acts. It is the duty of the court to and give effect to both of the foregoing statutory provisions, if practicable. It is firmly settled that the jurisdiction of the federal courts is a limited one, depending either upon the existence of a federal question, or upon the. diverse citizenship of the parties. Where both of these elements of jurisdiction are wanting, the court cannot proceed, even with the consent of the Byers v. McAuley, 149 U. So 608, 618, 13 Sup. Ct. 906. In the present case no federal question is disclosed, and consequently, if the jurisdiction of the court can be maintained, it must be upon
956
.
FEDERAL REPORTER,
vol. 62.
the ground. of,the diverse citizen.ship of the parties. A circuit court ()ftll-e'United States has no jUrisdiction over a suit to enforce a contract for the conveyance oflpd,brought in the district where the land. is $ituated, unless' thE! requisite diversity of citizenship exists :Plant 00. ". Jacks0liville, T. & K. W. By. 00., 152 U. S. 71, 14. Sup. at. 483. This case establishes the doctrine that in a suit to ,enforce a 'cdntract for, the conveyance of land the diversity of citizenship, and not the situs: bf the real estate, determines the jurisdiction the court. A suit to, enforce a contract for the conveyance of land. is a proceeding in personam, and not in rem. A decree such, a suit operates upon the person, and does not affect the title Ito the land. The court, by suitable process, compels the defendantw ,do that which,oy the terms of his contract, he had agreed vohintarlly to perform. Iri Muller v. Hows, 94 U. S. 444, it is said: '., . "It Is undoubtedly. a drictrlne that alfourt of equity, sitting in a statehavIl;lg.jurlsdictlon of ilie person, may decree a conveyance by him of land Inan()tber state, and may enforce the decree by process against the defendant"
In Phelps v. McDonald, 99 U. S. 298, it is said: ''Where the necessary parties are before a court of equity, It is immaterial . thllJt the res of the controversy, whetberlt be real or personal property, is beyond the jurisdiction of the tribunal. It has the power to compel the defendant to do all things necessary according to the lex loci rei sitae, which he could' do voluntarily, to give full effect to the decrees against him. Without regard to the situation of the subject-matter, such courts consider the equities between the parties, and decree In personam according to those equities, and enfol-ce obedience to their decrees by process in personam."
In Hart v. $ansom, 110 U. S.15;1., 3 Sup. Ct. 586, it is said: "Generally, If not universally, equity jurisdiction is exercised in personam, and not in rem, and depends upon the control of the court over the person of the parties, by reason of their presence or residence, and not upon the place where the land'lies, In regard to which relief Is sought. Upon a bill for the removal of a cloud upon the title, as upon a bill for the specific performance of, an agreement to convey, the decree, unless otherwise expressly provided by statute, Is clearly not a judgment In rem, establisWng a titie in land, but operates In personam only, by restral.nlng the' defendant from asserting bis cIa1m, and directing him to deliver up his deed to be canceled, or to execute a release to the plaintiff."
In Oarpenter v. Strange, 141 U. S. 87, 11 Sup. Ot. 960, it is held that a court of equity may, in a proper case, compel a person to act in relation to property not within its jurisq.iction; that while its decree does not operate directly upon the property, nor affect its title, it is made effectual through the coercion of the party defendant, as, for Jnstance, by directing a deed to be executed by or on behalf of a party. In Massie v. Watts, 6 Oranch, 148, it is distinctly held that a ,court of equity has power to declare a trust in land without its jurisdiction, if it has acquired jurisdiction over the person of the defendant. The doctrine announced in these cases is so firmly established that a further citation is needless. If, therefore, this suit had been brought in distrIct of which either the plaintiffs or the defendants are citizens, the circuit court of the United States for
MUNICIPAL INV. CO. V. GARDINER.
957
that district could have decreed the specific performance of the contract in suit, and could have compelled obedience to its decree by attachment or sequestration. Ought the court to give such a construction to the eighth section of the act of 1875 as to compel the defendants to litigate in this district a suit over which the circuit court of the United States for the district of their residence has complete and undoubted jurisdiction? I think not, because the circuit court of the United States for the district of which either the plaintiffs or the defendants are citizens has jurisdiction to award all the relief sought by the present bilI. The acts of 1887 and 1888 provide that, "where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or defendant." In a suit to enforce a contract for the conveyance of land, the jurisdiction is founded only on the fact that the suit is between citizens of different states, and in such case the suit must be brought in the district of the residence of either the plaintiff or defendant. Section 8 of the act of 1875 does not, in terms, embrace a suit to enforce a contract for the conveyance of land. The cases provided for in this section are confined to suits "to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrancl! or lien or cloud upon, the title to real or personal property within the district where the suit is brought." It is evident that this suit is not one to enforce any legal or equitable lien upon or claim to the land. No decree is asked affecting the land, but one operating solely in personam. The decree sought would in no wise affect the land, nor aIter the status of the title. Nor is it a suit to remove any incumbrance or lien or cloud upon the title to the land. The acts of 1887 and 1888 were enacted with the purpose of limiting the jurisdiction of the federal courts, and section 8 of the act of 1875 must be construed so as to effectuate this legislative intent. It ought not, in my judgment, to be construed to embrace any cases not falling clearly within its terms. In Ames v. Holderbaum, 42 Fed. 341, it is held that a suit to foreclose a mortgage on real estate is maintainable in the district where the land is situated, although neither party'to the suit is a citizen of that district. But in such case the decree operates directly upon the land. It is a proceeding in rem. So' in Spencer v. Stock-Yards Co., 56 Fed. 741, it is held that an action of ejectment can be maintained in the district where the land is situated, although neither party to the action is a citizen of that district. Such an action is one to recover possession of the real estate, and is local in its nature. The present action is not local, but transitory, and does not seek any relief except a decree operating in personam. The bill is dismissed for want of jurisdiction.