
    Ashurst et al. v. Gibson.
    
      Bill in Equity to Foreclose Mortgage.
    
    1. Bill against resident defendants; where filed. — Section 3326 of the Revised Code, prior to the amendatory act of March 17, 1874, required bills against resident defendants to be filed in the district of the residence of a material defendant, unless the object was to enjoin proceedings or judgments in other courts, in which cases it required the bill to be filed in the district -in which such proceedings were pending or judgment rendered; and said act ..authorizes the filing of the bill, if real estate be the subject-matter of the •suit, in the county where the same or a material portion thereof is situated.
    2. Same; where real estate is the subject-matter of suit; right of election. Under said section, as amended, and now forming section 3670 of the Code -of 1876, the complainant may file his bill in the county in which the real ■estate, or a material portion thereof, is situate; but the jurisdiction of the • court,in the district of the residence of a material defendant, remains ; and the result is that the complainant may, where real estate is the subject-matter ■of the suit, elect the one or the other jurisdiction.
    3. Same; right of election limited to suits where land only is the subject-matter. — The right of election thus given is limited to suits where land is the -exclusive subject-matter; jurisdiction is not conferred where the relief sought is as to land and personal property — as where the foreclosure of a mortgage, including both real and personal property, or its redemption, is the subject-matter of the bill.
    Appeal from the Chancery -Court of Macon.
    Heard before the Hon. N. S. Graham.
    Bill was filed in said Chancery Court by Allen C. Gibson, -appellee, against J. F. and F. E. Ashurst, alleging in substance as follows:
    That said Ashurts, although they reside in Tallapoosa county, Alabama, own real estate, a material portion of which, the subject-matter of this Jsrtit, is situated in Macon county, Alabama; that on the 27th of February, 1874, they executed to one Churchill Gibson their promissory note, payable on the first day of December, 1874, with interest from date, in the sum of $3,254.99; that to secure the payment of said note, they, at the same time, executed to said Churchill G. Gibson, a mortgage upon certain lands mentioned in the bill, to-wit: the west half of section thirty-four, the south-west half of the east half of section thirty-four, in township eighteen .and range thirty-two, lying in Tallapoosa county; also, the portion of section three, lying north of--creek, in Macon county — township seventeen, range twenty-two; and .also, three horses and one black mule; that the said •Churchill Gibson transferred and assigned said note and mortgage to complainant; that the same are his property, and are still due and unpaid; that the law-day of said mortgage has passed, &c.
    The prayer of the bill is for a reference to the register to' ¿ascertain the amount due, and for a sale of the property under the mortgage, for the payment of the note, and for general relief.
    The defendants demurred to the bill, assigning the following grounds : First, the bill is without equity; second, the bill ¿shows on its face that complainant is not entitled to the relief sought; third, the bill shows that the court has no jurisdiction over the subject-matter -, fourth, the bill is wanting in proper parties complainant — the said Churchill Gibson should necessarily be a party.
    The cause coming up to be heard on the demurrers and motion to dismiss, the court overruled both demurrer and motion.
    Defendants filed their answer, and pleaded to the jurisdiction of the court, which was overruled.
    The defendant (appellant here) now assigns as error the ruling of the court on the demurrer and plea, and final decree.
    E. H. LIGON and T. B. Payne, for appellant.
    The bill should have been filed in Tallapoosa county, where the defendants resided, and where the personal property was-located. The subject-matter of this suit embraces real and personal property. The plea to the jurisdiction should have been sustained.
    Abercrombie & Graham, contra.
    
    There is no error in the record. The bill was properly filed in Macon county.
   BRICKELL, C. J.

The bill is filed to foreclose a mortgage of real and personal property, against defendants, residing in another county and district, than that in which it-is filed. But a material portion of the real estate conveyed by the mortgage, is situate in the county in which it is filed. The demurrer and the plea to the jurisdiction present the same question — whether jurisdiction of the person of the defendants resided in the court in which the bill was filed, or' was in the court of the county and district of their residence. The statute, prior to the act of March 17,1873, required that bills against resident defendants should be filed in the district of the residence of a material defendant, unless the-object was to enjoin proceedings or judgments in other courts, and then it must have been filed in the district in which such proceedings were pending or judgment rendered. Eevised Code, § 3326. The act of 1873, amendatory of this provision of the Code, authorized the filing of the bill, if' real estate is the subject-matter of suit, in the county where the same, or a material portion thereof, is situated. — Pamph. Acts, 1872-3, p. 119; Code of 1876, § 3760. The statute as amended, simply confers on a complainant the right of filing the bill in the county, in which the real estate or a material portion thereof, is situated. The jurisdiction of the district of the residence of a material defendant remains. The-locality of the real estate, and of residence, alike confer jurisdiction, and the complainant may, at his pleasure, elect the one or the other jurisdiction. The right of election is limited to suits, the subject-matter of which is real estate; and does-not embrace other suits, having a different subject-matter. As'to the personal property embraced in the mortgage, the-court in which the bill is filed, was without jurisdiction, unless it attaches as an incident to the jurisdiction, by reason of the locality of a part of the land. The general policy of' our legislation is to- subject the citizen to suit only in the county of his residence, whether the action is at law or in equity. As to suits at law, no freeholder, nor householder, can be sued out of the county of his permanent residence, as • a general rule. — Code of 1876, § 2928. There are exceptions of actions against joint defendants, one of whom must have a residence-in the county in which suit is commenced, and of” suits for the recovery of real property, or the possession thereof, or for a trespass thereto, which must be commenced in the county where the land lies. An assimilation of suits-in equity, when real estate is the subject-matter, to suits at law concerning lands, so far as to confer on the court of the county in which the lands, or a material portion, may be situate, jurisdiction concurrent with that of the court of the district of the residence of a material defendant, is the purpose of the act of 1873. Land must be the subject-matter, and the exclusive subject-matter of suit, or the jurisdiction conferred by the act does not attach. Eemedies must be pursued in the district of the residence of a material defendant, if land and personal property are the subject-matter of' suit. Jurisdiction of the one can not draw to the court jurisdiction of the other. A mortgage may embrace a very inconsiderable quantity of land, of insignificant value, and personal property of very large value; it could not properly be said, a suit for foreclosure, or for redemption, had for its subject-matter, land. Its subject-matter is land and personal property, and in such a case it would contravene the spirit- and policy of our legislation to subject parties to suit in the county in which the land is situate, without the county of their residence. Or it may be, and that may be the fact in this case, that a mortgage may embrace lands of large value, and personal property'comparatively insignificant.in value. All that can be said is, if a foreclosure, or redemption is sought as to both, that the suit has not for its subject- - matter land, but personal property and land, and jurisdiction of it is dependent on the residence of the defendants. The • •demurrer, and the plea to the jurisdiction should have been ■sustained. It is not necessary or proper, attaining this con- • elusion, to express an opinion on the questions touching the merits of the controversy, which may hereafter be presented ■under different pleadings and proofs. The decree must be •■reversed,, and a decree here rendered dismissing the bill without prejudice, and the appellee must pay the costs in this • court, and in the Court of Chancery.  