
    GLEDSTANES A. MOORE vs. WILLIAM G. W. JAE-GER, WILLIAM R. JAEGER, ANTONIO PELLETIER, FRANKLIN MACE, GEORGE W. LINVILLE, GEORGE MASON, GEORGE W. ESLIN AND WIFE, THOMAS D. WINCHESTER, AND ALFRED J. ULLMAN.
    I. The rule is now well settled that a court of equity will entertain a suit respecting the right to real estate situate in another State or country, where jurisdiction of the parties has been acquired.
    II. When a controversy arises out of a contract, or out of fraud, or involves the consideration of a trust in regard to lands in another State, the jurisdiction of a court of chancery will act upou the conscience of the person if found within the jurisdiction of the "forum, and compel him to do what is required by justice and equity.
    III. Where a party has executed a deed of trust upon real estate to secure an indebtedness to the complainant, and subsequently he causes to be purchased for his own benefit, in the name of other persons, outstanding titles for the purpose of defrauding the complainant, equity will decree that he must hold the titles thus acquired upon the uses and trusts declared in the trust-deed he had previously executed for the benefit of the complainant.
    ■STATEMENT OP THE CASE.
    The bill alleges that, on or about the 18th day of July, 1871, the defendant William G. W. Jaeger executed and delivered to the plaintiff his promissory note for $50,000, payable twelve months after date, and at the same time executed and delivered to Charles Deffenbach a deed of trust upon a certain tract of land in the county of McDowell, in the State of West Virginia, and said to contain one hundred and fifty thousand acres of land. A copy of the deed is made an exhibit to the bill, and it was made for the purpose of securing the payment of the note at maturity. Jaeger’s title to the land was derived from the defendant Antonio Pelletier on the 29th day of July, 1868.
    That said Jaeger, on said last-mentioned day, executed and delivered to Pelletier four promissory notes, for the sum of '$5,000 each, payable respectively in three, five, seven, and ten years from date, and at the same time executed and delivered to one Franklin Mace a deed of trust to secure to the said Pelletier the payment of said notes at maturity; that these notes came into the hands -of the complainant; that, subsequently to these transactions, it was discovered that certain outstanding titles to the property, which at the time of the transfers above mentioned were supposed to be worthless, or at most light clouds upon the title derived from Pelletier, were in point of fact superior to the Pelletier title, and that the title derived by Jaeger from Pelletier, and by complainant from Jaeger, was fatally defective unless those outstanding titles could be secured.
    < These outstanding titles arose upon the following facts : The patent for the lands was obtained by one Robert Pollard, in the year 1795, from the State of Virginia, and the title thus acquired was finally conveyed to one Henry G. Thompson in the year 1865. In the mean time the land had been sold for taxes and the tax-title was at last lodged in a person by the name of Chitty, who executed a conveyance to Pelletier, which conveyance was afterward set aside by a decree of the equity court for said McDowell County, in September, 1853. A mortgage upon said lands had been executed by Chitty to N. W. L. and H. Mali, which was foreclosed in 1853, and the land bought in by the mortgagees at the foreclosure sale, so that, at the time of the trust-deed to secure complainant’s debt, the original title was in Thompson and the tax-title in the Malis.
    The bill then alleges that the defendant, William G. W. Jaeger, having knowledge of all these faces, for the purpose of cheating and defrauding the complainant out of the debt secured by the deed of trust first above mentioned, purchased the title of Mali, through the defendant Thomas D. Winchester j that he, on the 3d day of April, 1872, caused the same to be conveyed to said Winchester, who well knew the facts and also the fraudulent purpose of said Jaeger.
    The bill further alleges that, with a like purpose in view, the said Jaeger, on or about the 3d day of April, 1872, purchased of Henry S. Thompson all his right, title, and interest in said tract of land, and had the conveyance made to his son, the defendant Wm. R. Jaeger, and that his said son was aware of all the facts and of the said purpose; that afterward the said Wm. G-. W. Jaeger, confederating with said defendants Wm. B. Jaeger and Thomas D. Winchester, in order further to complicate the case and to defraud the plaintiff of his just rights, procured the said defendant Winchester to convey the said tract of land to Wm. E. Jaeger, (the son,) and the said Wm. E. Jaeger to mortgage said land to said Winchester for the sum of §30,000, which last conveyance was without consideration, except as to about §1,600, which the said Wm. Gr. W. Jaeger had borrowed from said Winchester to purchase the outstanding titles before mentioned ; and further that, on or about the 30th day of December, 1872, the said Wm. Gr. W. Jaeger and Wm. E. Jaeger, further confederating with one Alfred J. Ullman, of the city of Baltimore, did convey to the said Ullman an undivided one-fourth part of all said tract of land, and that said Ullman, at the time of the said conveyance, had full knowledge of all the facts in the bill before mentioned, and the object of said conveyance being to cheat and defraud said plaintiff out of his just and equitable rights,
    The defendant Jaeger, in his answer, alleges that, at the time of executing his promissory note to the plaintiff for §50,000, and the deed of trust to Diffenbach to secure the same, he was indebted to the complainant in the sum of §10,000 and no more, and that the deed and note were given to secure that sum and future advances agreed to be made by the plaintiff.
    He then denies all charges of combination with the other defendants or any intention to cheat and defraud plaintiff, as charged in the bill.
    The defendants William B. Jaeger, Thomas D. Winchester, and Alfred J. Ullman, each answering for himself, deny all combination with William Gr. W. Jaeger, as charged in the bill, and all knowledge of his intention to cheat and defraud the plaintiff as charged, and each claims that his dealings in regard to said land were in good faith, and his purchase bona fide and for a valuable consideration.
    The testimony in the case is contained in a bound volume of over two hundred pages, the principal part of which is directed to the question of fraud. The complainant examined a number of witnesses, whose testimony tended to support the allegations of the bill, and the defendants Jaeger and Ullinan introduced evidence in support of their answers. The actual amount of indebtedness due from Jaeger to complainant was not discussed, as that matter had been referred to the auditor at the special term. It will be seen that after a careful consideration of the pleadings and proofs the court decided the question of fraud as a fact in favor of the complainant. It would occupy too much space to give in detail the testimony in this statement.
    
      J. Daniels, E. D. Harrison, and E. J. D. Cross for complainant :
    The complainant maintains with confidence that when the parties sought to be affected by its decree are in court, that is sufficient, irrespective of the situs of the subject-matter in dispute. And that this court cau decree: 1. That the property be sold; or, 2. That the defendants convey the titles acquired by them to the complainant; or, 3. If they do not do so, a trustee be appointed'by the court, who shall make such deeds as shall vest the entire title in the complainant. The ground of the jurisdiction invoked is that a court of equity acts upon the conscience of the parties before it, compelling them to do what they are bound to do in conscience and good faith. JEquitas agit in personam. The leading case on this branch of equity is the familiar case of Penn vs. Lord Baltimore, reported in 1 Vesey, 444, decided by Lord Chancellor Hardwicke in the year-1750, when the boundary between the States of Maryland, Pennsylvania, and Delaware was adjusted by the. decree of the lord chancellor in England. The decree was placed upon the power of a court of equity having jurisdiction of the parties, whatever be the siibject-matter, acting in the fullest manner. In 2 White and Tudor’s Leading’Cases in Equity, pp. 923, &c., this case is elaborately reviewed and the succeeding casés cited, viz : Toller vs. Carteret, 2 Vern., 495; Earl of Kildare vs. Eustace, 1 Vern., 419, 422.
    To which latter case especial attention is called, as it goes to the extent of enforcing a trust in regard to lands situate in a, foreign country. Upon this point the complainant cites the cases of Port Arlington vs. Soulby, 3 Mylne & Keen, 104; 
      Graham vs. Maxwell, 1 Mac. and G., 71; DeKlyn vs. Watkins, 3 Sanf. Ch., 185; Gurmant vs. Fowler, 1 Hen. & Munf., 5.
    In the case of Massie vs. Watts, 6 Cranch, 148, on page 160, Chief Justice Marshall says: “In case of fraud, trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree.” Also, Morris vs. Remington, 1 Pars. Sel. Cases in Eq., 307, 393.
    That the purchase of an outstanding title by the mortgagor or grantor, or by any person for his benefit, will inure to the benefit of the mortgagee or grantee, especially when this purchase is fraudulently made, and done with intent to defeat the estate conveyed. Van Rensselaer vs. Kearney, 11 How., 297, 322, 325, 326; Herman on Estoppel, secs. 268-272; Biglow on Estoppel, 327, 344; McCusker vs. McEvey, 9 R. I., 528. The bill is not multifarious, as it refers to one matter between the parties. It is true that the appellants, by various methods, sought to consummate the fraud alleged, but they should not be allowed to take advantage of the variety or fertility of their fraudulent devices. Even if the bill were liable to that objection, it is too late to raise it on appeal. It should have been raised on demurrer and not after answer, and the expense and trouble incurred in taking evidence. Chew vs. Bank of Baltimore, 14 Md., 299; Grove vs. Fish, 9 G. & I., 280; Luckett vs. White, 10 G. & I., 480; Gibbs vs. Cleggett, 2 G. & I., 14; Story’s Eq. Plead., 285, 530; Oliver vs. Piatt, 3 How., 412.
    
      M. Thomson for defendants, Jaegers:
    The bill is multifarious, and the court may, sua suponte, take the objection and dismiss the bill. 1 Dan. Ch. Prac., 352; Green vs. Churchill, 1. M. & R., 557; Ohio vs. Ellis, 10 Ohio, 456; Oliver vs. Pratt, 3 How., 333-412. The bill contains several distinct matters of account between the plaintiff and the defendant, W. G. W. Jaeger, with which the other defendants have no connection or concern whatever, and this is multifariousness. 1 Dan. Ch. Prac., 342-344, notes and authorities there cited.
    
      The plaintiff below relied mainly, and it is believed that the decree was based mainly, upon the letters, declarations,- and statements of W. G. W. Jaeger, which was given in evidence by the plaintiff under objection; and these letters, declarations, and statements were all written and made after W. E. Jaeger and Winchester acquired title to the land from Thompson and Mali, and out of the presence and hearing, and without the knowledge, of any of the other defendants; and are therefore not admissible as evidence against them, or either of them. 1 Green, on Ev., secs. 110, 111, 174,176-178, and notes and authorities there cited. W. G. W. Jaeger acted in good faith in giving the mortgage in favor of the plaintiff, and at that time and for some time thereafter both these parties supposed that W. G. W. Jaeger had good title to the land, and. that Moore’s mortgage was good; but some time thereafter W. G. W. Jaeger ascertained that his title was worthless, and that the legal and valid title to the land was in Thompson or Mali, and that it would be necessary to purchase title from them to perfect the title in W. G. W. Jaeger, and thereby validate his mortgage in favor of Moore; and he (W. G. W. Jaeger) advised Moore accordingly, and requested him to purchase, or to furnish the money to purchase, title from Thompson and Mali, and thereby perfect his surety under his mortgage; but Moore positively refused to do so, and virtually stood by and licensed W. E. Jaeger and Winchester to buy the land from Thompson and Mali; and Moore, therefore, cannot in equity and good conscience claim the benefit of such purchase, or any relief against W. E. Jaeger or Winchester. 1 Fondb. Eq., 151; Roberts’s Equity, 45; 2 Vern., 151; Storrs vs. Barker, 6 Johns. Ch., 166; Wendell vs. Van Rensselaer, 1 Johns. Ch., 354; 1 Story’s Eq. Jur., sec. 385.
    
      Enoch Totten and Linden Kent for defendant Ullman.
   Mr. Justice MacArthur

delivered the opinion of the court:

The first question to be determined is whether we can make a decree in this case, as the land described in the bill of complaint is situated in the State of West Virginia, beyond the local boundaries of this jurisdiction. The rule is now well settled that a court of equity will entertain a suit respecting the rights to real estate, although it is in another State or county, where jurisdiction of the parties has been acquired. In his equity jurisprudence, sec. 743, Mr. Justice Story says: “-It may therefore be proper to premise that a bill for a specific performance of a contract respecting land may be entertained by courts of equity, although the land is situate in a foreign country, if the parties are residents within the territorial j urisdiction of the country. The ground of this jurisdiction is that courts of equity have authority to act upon the person. JE quitas agit in personam. And although they cannot bind the land itself by the decree, yet they can bind the conscience of the party in regard to the land, and compel him to perform his agreement according to conscience and good faith; ” and he cites the celebrated decision of Lord Hardwicke in Penn vs. Lord Baltimore, 6 Ves., 444; also Port Arlington vs. Soulby, 3 Mylne & Keen, 104; Totten vs. Carteret, 2 Vern., 495; Sutton vs. Fowler, 9 Paige, 280, and many others. Perhaps the best definition of this doctrine is found in the decisions of the United States Supreme Court. In Massie vs. Watts, 6 Cranch., 148, after referring to those authorities, Chief-Justice Marshal says: “ Upon the authority of these cases and of others which are to be found in the books, as well as upon general principles, this court is of opinion that, in the case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree.” That was a suit brought in the circuit court of the United States for the district of Kentucky by a citizen of Virginia against á citizen of Kentucky in respect to lands in the State of Ohio, the defendant having obtained the legal title with notice of the equitable title of the plaintiff; and the' court made a decree compelling him to convey to plaintiff, on the ground that his taking the title in his own name was a fraud upon the plaintiff, and he thereby became his trustee.

The like doctrine was again fully recognized in Northern Illinois Railroad Company vs. Michigan Central Railroad Company, 15 How., 244, where the court say: “ If the court had acquired jurisdiction of the person by his being within the State, they will compel him by attachment to do his duty under his contract or trust, and enforce the decree in rem by his executing and conveying or otherwise, as justice may require in respect to lands abroad.” It appears from these authorities that whenever the controversy arises out of contract or fraud, or involves the consideration of a trust in regard to lands in another State, the jurisdiction of a court of chancery will act upon the conscience of the person if found within the jurisdiction of the forum, and compel him to do what is required by justice and equity. The question now before us will be whether the present case is one of this character.

The substantial averments of the bill are that defendant W. G.W. Jaeger executed his promissory noteto complainant for 850,000, and also gave a deed of trust upon the lands in West Virginia to secure the payment of the note. Afterward complainant discovered that Jaeger’s title was defective by reason that the title to the land was in one Henry G. Thompson and the Malis. The defendant W. K. Jaeger, who is the son of W. G. W. Jaeger, acquired Thompson’s title, and the defendant Thomas D. Winchester acquired the Mali title, and conveyed the same to Jaeger, jr. The bill alleges, that Jaeger, sr., purchased the Mali title through said Winchester, and caused the same to be conveyed to said Winchester, and from Winchester to his son for the purpose of cheating and defrauding the complainant out of the debt secured by the trust-deed, and that, with a like fraudulent purpose, he caused and procured the conveyance from Thompson to his son, and that said conveyances were made for the use and benefit of the said Jaeger, sr., and for the purpose of covering up said fraud the same were made to his son, and that the defendant Ullman, at the time he took his conveyance, had full knowledge of these facts, and that the object of the conveyances, including his own, was to cheat and defraud'the complainant out of his just and equitable rights. Upon these facts, the case is clearly brought within the rule just announced. A clearer case of fraud and resulting trust could not be expressed, and if the allegations are supported by the evidence, this court has by all the eases cited jurisdiction of the cause. The facts in the case as to the fraudulent conduct of Jaeger, sr., and his son depend upon a mass, of testimony which it would require too much space and time to set forth. It represents the two Jaegers in a very bad light, and we cannot doubt of their bad faith and fraudulent practices toward the complainant.

From a careful consideration of the testimony, we have come to the conclusion that the whole transaction between Winchester and Jaeger the younger, in purchasing the Mali and Thompson titles, was in the interest of Jaeger, sr., and. was for his benefit, and the title thus acquired ought therefore to be held by them upon the same uses and trusts as are declared in the deed of trust executed by the elder Jaeger for the benefit of the complainant, Moore. The decree in this, respect must be affirmed.

The court below thought that the defendant Ullman was an innocent purchaser of an undivided oné-fourth of all this tract of land from Jaeger the younger. We think, however, that the testimony shows that he had full knowledge of all the facts, and was a confederate in the fraud. The decree must be so modified as to postpone the rights of Ullman, whatever they may be, to those of the complainant. The-defendant Jaeger, sr. to pay costs of this appeal.

Mr. Justice Humphreys read a dissenting opinion.  