
    Francis J. Reid by next friend, Ex Parte.
    
    'Chancery Jurisdiction. Acts of 182'7. ch. 54, and 1829, ch. 35. Sale of land. The acts of 1821-, ch. 54, and 1829, ch. 36, authorizing a sale and conversion of real estate when such real state may be of a description that it would be manifestly' for the advantage of the heirs or owners to sell the same, confer no power upon the courts of .chancery to decree a sale of lands lying without its local jurisdiction.
    FROM DAVIDSOR.
    This was a petition filed in' chancery, at .Nashville, by John Eeid as next friend of F. J. Eeid, a minor, for the sale of a tract of land, lying in Tipton county, upon the ground that it was to the manifest advantage of said minor that the land he sold and the proceeds thereof invested elsewhere. The sale was decreed accordingly, and Charles Eead became the purchaser, and soon afterwards died. The administrator and heirs of Charles Eead filed a petition in the same court, praying a recision of said contract upon the ground, that said court had no jurisdiction to order said sale, and that a good title in consequence thereof could not he had. Chancellor Brien held the sale to be valid and decreed accordingly, from which the petitioners appealed.
    Tbimele and J. Eeid, for F. J. Eeid.
    J. A. McEwen, for the appellants,
    with whom was D. C. Welokeb, who said:
    This case presents the naked question, whether a court of chancery has the power to sell the real estate of. a minor, lying in a remote and distant part of the State, and without its local jurisdiction. The petition was filed in the chancery court of Davidson county, and the lands lay in Tipton county — several hundred miles distant — and entirely beyond the chancery division and district of the chancery court of Davidson county. The decision of this question depends upon the construction of the statute of 1827, ch. 54, § 1, (0. & FT., 516.) This statute seems to make the power of the circuit and chancery courts to order the sale, depend entirely upon the lands being situated within the county or district,, or the local jurisdiction of the particular court ordering the sale. It says nothing about the residence of the infants 'whatever. And, indeed, it seems to have been clearly the policy of our legislature to require, in all cases where it directs and authorizes the sale of real estate by the courts, that it be done by a court of the county or district in which the real estate is situated: for the act of 1829, ch. 35, (C. & U, 517,) for the sale of real estate of tenants in common, and the acts of 1827, ch. 24, § 4, and of 1831, ch. 22, (C. & 82 and 84,) for the sale of real estate of decedents by administrators and executors, aU have the same provision, couched in almost the same, if not the very same language; as has also the statutes of 1827, ch. 61, (C. & hT. 83), 1825, ch. 22, and 1827, ch. 42, (0. & N., 221 and 2). These statutes, which should be construed as in pari materia, — as relating to the same or a similar subject matter, and as having one common object and policy,— do not allude to the residence of the infants or parties, but speak only of the bill or petitions being filed in the court of the county or district in which the land is situated. Erom this fact, as well as from the nature of the subject embraced, and the language employed, it is manifest that they are to be construed strictly, and their provisions in all respects followed; and also, that the expression, “it shall and may be lawful,” &c., which is used in nearly all of these acts, is to be taken both as imperative and restrictive. Eor by specifying the courts to which “it shall and may be lawful” to make the application, any and all others are excluded. Expressio unius est exclusio alterius. It is to be taken as shall or must. Dwarris. on Statutes, 712 and 13. 1 Kent, 467, (side page,) and note.
    There are no decisions directly on this question in this State, or at least upon this particular section of the act of 1827, ch. 54, hut the following may be considered as having a bearing upon it. 8 Humph., 200 and 512; 5 Humph., 315; 11 Humph., 488, and especially the cases of Morris vs. Richardson, 11 Humph., 389, and Whitmore vs. Johnson’s heirs, 10 Hum., 610.
    This court, in a case instituted in the circuit court under the 4th sec. of this very act of 1827, ch. 54, (0. & N., 82,) in which the same language is used, say, that “the bill must be filed in the circuit court of the county in which the land is situated.” 10 Humph., 610. And it has also decided that this same section confers as full and ample jurisdiction upon the circuit court as has the court of chancery. 11 Humph., 512. This we regard as decisive of this point. For how can the sale in this case be sustained, when if it had been made by the circuit court, which has as full and ample jurisdiction as had the chancery court, it would be held void?
    2. It is said, however, that the fact of the petitioner being a resident of Davidson county, gave the court jurisdiction upon general chancery principles, and independent of that conferred by this statute. That a court of equity acts in personam. The case of G. G. Brown, 8 Hump., 200, and an extra judicial remark in the case of Ma/rtin vs. Keeton, 10 Humph., 526, are relied upon to sustain this position, but the court will see they fall far short of doing so. We think that the very fact of the act being passed, goes very far to show that the court had ■ not this power; and that even if it had, that act was not only declaratory, but also restrictive of the law. 10 Hum, 610: 11 Hum., -512.
    And although, perhaps, not so expressly decided, yet it would seem, that sales for partition cannot he had in any cases except those authorized by our statute laws. 5 Humph., 310. 2 Swan, 197. It also seems that courts of chancery are as much bound by the provisions of these acts, as are the circuit courts. 1 Swan, 75; 2 Swan, 197.
    Besides, the maxim, that a court of chancery acts in personam, applies only to a defendant; and is brought into play, where “an interference is necessary to the ends of justice, and not unless it be necessary for the ends of justice,” “ to secure the enjoyment of equitable interests and rights to or over property out of its jurisdiction,” upon the grounds of fraud, or a trust, &c. It “has no power directly to affect property situate out of the bounds of its jurisdiction,” “nor can a partition be obtained” when it is so without. 2 Spence’s Eq. Jur., 6, 9 and notes.
    3. Neither can the petition subsequently filed for the sale of real estate in Nashville, and alluded to in Brands J. Reid’s answer as an amended petition affect the case. It was not in fact filed for three years after the other, nor until the sale under the first had been confirmed. Nor does it purport to be an amended petition. The lights of the parties were then fixed so far as they could be.
    4. The court not having jurisdiction, the sale was void, and the purchasers cannot now be forced to take the land, even if they can' get a good title. 11 Humph., 488; 5 Humph., 310.
    5. The purchase being Iona fide, and the purchaser expecting to get a good title, his representatives are clearly entitled to compensation for such improvements made by them, as add to the permanent value of the land. 10 Yerg., 59 and 477. 2 Humph., 174; 4 Humph., 362; 6 Humph., 324 and 504; 8 Humph., 537.
   Totten, J\,

delivered the opinion of the court.

This proceeding, by petition ex parte, was instituted in the chancery court, at Nashville, for the sale and conversion of 1222-^ acres of land, situated in the county of Tipton, upon the ground that it would be manifestly to the interest of the petitioner, an infant, and the owner thereof, to sell the same, and invest the fund elsewhere. A sale was ordered, and Charles Read became the purchaser, and afterwards .died. His heirs and W. B. Taylor, his administrator, petitioned the said chancery court to be released from said sale, on the ground of defect of title for want of jurisdiction in the court. The chancellor was of opinion that the sale was valid, and so decreed. Thereon, the said Taylor and others appealed.

The acts óf 1827, ch. 54, and 1829, ch. 35, authorize the sale and conversion of real estate, where such estate may be of a description that it would be manifestly for the advantage of the heirs, &c., the owners thereof, to sell the same.

And these acts provide, that suits for this purpose, shall be conducted as other suits in equity, and be instituted “ in the circuit or chancery court of the eounty or district where such estate may be situatedP

Assuming that these acts are merely declaratory of the original and inherent power of a court of chancery in these respects, yet it is clear that they contain a provision on the subject of local jurisdiction, which we are not permitted to disregard.

The circuit or chancery court of the county or district where the land is situated has a local jurisdiction of the subject, to exercise all such powers, and make such decrees as it is competent for a court of equity to make in such case. The proceeding in the chancery court at Nashville, was therefore coram non judice and void.

It is not like the case, where the person of a defendant to a proceeding in equity _ gives local jurisdiction. The court proceeding in'personam, may in many cases, settle the rights of the parties, no matter where the subject of litigation may be locally situated.

The defendant, over whose person the court has acquired jurisdiction, may be compelled to do what is necessary and proper to give effect to a decree. As for instance, to execute a deed for land, beyond the limits of the State, on a bill and decree for specific performance of a contract of sale. But here the proceeding is ex parte, and there is no party to give local jurisdiction. For defect in the local jurisdiction, the sale will be decreed void, and the securities be cancelled.

The case will also be remanded for an account of such improvements as add to the permanent value of the estate, for which allowance will he made, to the extent only of the rents and profits.

Decree reversed.  