
    Frances A. Burnley et al. v. Edward O. Stevenson.
    1. A court of equity in one state, having acquired jurisdiction over the persons of the parties, may enforce a trust, or the specific performance of a contract, in relation to land situate in another state.
    2. Although the decree in such case, or the deed of á master executed in pursuance thereof, can not operate to transfer the title to such lands, yet the decree is binding upon the consciences of the parties, and concludes them in respect to all matters and things properly adjudicated and determined by the court.
    3. When the decree in such case finds and determines the equities of the parties in respect to such land, and directs a conveyance by the parties in accordance with their equities, such decree, although no conveyance has been executed, may be pleaded as a cause of action, or as a ground of defense in the courts of the state where the land is situated; and it is entitled, in the court where so pleaded, to the force and cjffect of record evidence of the equities therein determined, unless it be impeached for fraud.
    Motion for leave to-file a petition in error to reverse the judgment of the District Court of Pickaway county.
    The original action was brought in the Court of Common Pleas of Pickaway county, by the plaintiffs in error, to recover from the defendant in error the possession of two-undivided third parts of 606 acres of land, situate in said county, and being part of original survey No. 6,943, in the-Virginia military district. The plaintiffs sought to recover in the right of the heirs of Gen. Charles Scott, to whom, the land embraced in this survey had been conveyed by tbe United States by patent, in the year 1812.
    The defendant, by way of defense, set up in his answer-the following state of facts, to wit: That previous to the date of said patent, Gen. Charles Scott, having received, a warrant for 1,666-| acres of land, for military services rendered by him in the Virginia line in the continental establishment, had employed one John Evans, a surveyor, to-locate, survey, and obtain patents for him, on said warrant,, on lands in the Virginia military district, and in consideration of the services of Evans in the premises, had agreed to convey to him one-fifth part of all the lands so to be located, surveyed, and patented; that Evans duly performed said services; that the lands embraced in-survey 6,943, were part of the lands located, surveyed, and patented to Gen. Scott under said warrant; that it was further agreed between Scott and Evans, that the share of Evans under the contract should be selected from lands in said survey; that soon after the issuing of the patents to Scott, he died, without having conveyed to Evans the lands to which he was entitled under said contract.
    That afterward Evans filed his bill in chancery, in the Circuit Court of Fayette county, Kentucky (the same being a court of general equity jurisdiction), against the heirs and legal representatives of said Scott (being the same persons under whom the plaintifl's claim title), to compel the specific performance of said contract, by a conveyance to him of the lands to which he-was entitled thereunder;, that said court obtained jurisdiction of the persons of all said heirs, by service of process and by voluntary appearance ; that upon the final hearing of said cause upon the bill, answers, and exhibits, to wit, on the 2d day of February, 1816, the court found the equity of the case in favor of Evans, and-directed the defendants therein to convey to him the lands described in the petition of the plaintiffs-below; that it was further decreed by said court, that in default of such conveyance by the defendants, one Robert Scott, a master commissioner of said court, should make-such conveyance; and that afterward, in pursuance of said decree, said master commissioner, to wit, on the 28th of May, 1817, executed and delivered to said Evans a deed im fee simple for said lands.
    The defendant in his answer further sets forth, that he-has succeeded to all the rights and title of said John Evans-in and to said lands, and avers that he and those under whom he claims, are now lawfully in possession thereof, and have so been in possession, claiming under said decree and! the deed from said master, ever since the dates thereof.
    
      To this defense the plaintiffs below filed their reply, to which the defendant demurred. The demurrer was sustained, to which ruling the plaintiff's excepted. ■
    Judgment was therefore rendered in favor of the defendant below, which was. afterward, on error, affirmed by the District Court.
    To reverse these judgments, this proceeding is now instituted.
    Plaintiffs in error admit that their reply in the court below was insufficient, if the above matters and things ■contained in the answer, constituted a good defense to the .action.
    
      ■Jeremiah Hall, for the motion •
    
      We think the issue is reduced to the single questioñ : ■Can the decree of a court of general jurisdiction, if you please, of a sister state, and the deed of a commissioner of said court, made in pursuance of such decree, divest the title of the defendants in such decree, to land in the State oif Ohio ? .
    The title to land in Ohio can only be divested underand in pursuance of the laws of Ohio. Lessee of Shepherd v. The Commissioners of Loss County, 7 Ohio (pt. 1), 272; Watts v. Waddle, 6 Pet. 400; United States v. Crawsby, 7 Cranch, 115; Watkins v. Holman, 16 Pet. 25.
    The question is not whether the court had jurisdiction, but whether the court had the power to change the title.
    Equity may aid a deed rendered inoperative by accident or mistake, when the grantor had power to convey, but it can not supply the want of power. Nowler v. Coit, 1 Ohio, 522; Wells v. Cooper, 2 Ohio, 124; Tiernan v. Beam, 2 Ohio, 393; Henry v. Doctor, 9 Ohio, 49; Salmon v. Rice, 13 Ohio, 368; Watkins v. Holman, 2 Pet. 25.
    .P. C. Smith, of Smith & Hurst, contra:
    To entitle a court of equity to maintain a bill for the specific performance of a contract respecting land, it is not necessary that the land should be situated within the jurisdiction of the state or county where the suit is brought. 2 Story’s Eq. Jur.,secs. 743, 744, 899, 900; Sutpha v. Fowler, 9 Paige Ch. 280; Massie v. Watts, 6 Cranch, 148, and cases there cited and commented on.
    The Fayette Circuit Court of Kentucky, being a court of competent and general jurisdiction, and having the persons of all the then owners of the land, the defendants, before it,, the decree rendered by said court is binding, and can not be impeached in this or any collateral action. Elliott v. Piersol, 1 Pet. 340; Thompson v. Tolmie, 2 Pet. 157; Voorhies v. Bank U. S., 10 Pet. 449; Sheldon v. Newton, 3 Ohio, 494; Boswell v. Sharpe, 15 Ohio, 447; Buchanan v. Roy, 2 Ohio St. 250; Herman on Estoppel, 211; Story’s Conflict of Laws, sec. 598; 2 Smith’s Leading Cases (top paging), 667, 686; Anderson v. Anderson, 8 Ohio, 108.
    Full faith and credit shall be given in each state to the-public acts, records, and judicial proceedings of every other state. Art. 4, sec. 1, Constitution; 1 Brightly’s Dig. 10, and note a, 265, sec. 9, note k; 1 Ohio, 259; 13 Pet. 312; Pelton v. Platner, 13 Ohio, 209; 3 Wheat. 234.
   McIlvaine, J.

The main proposition submitted in this-case is, whether, under and by virtue of the decree of the-Circuit Court of Kentucky and the master’s deed made in pursuance thereof, or of either of them, such an estate or right was vested in John Evans as entitles the defendant, who has succeeded to all the rights of Evans, to the pos- ■ session of the lands in controversy, as against the plaintiffs, whose claim of title is derived from the parties against whom the decree was rendered.

The jurisdiction of the Circuit Court to pronounce the decree, is the first inquiry involved iu this proposition.

It appears from the record before us, that the Circuit Court of Kentucky which pronounced the decree, was a court of general equity jurisdiction; that some of the defendants in the cause were properly served with the process of the court, and that all others voluntarily appeared and” (submitted themselves to its jurisdiction, and- that the sub-ject-matter of the bill on which the decree was rendered, was the enforcement of a trust and the specific performance of a contract to convey lands situate in the State of Ohio.

That couxfis exercising chancery powers in one state have jurisdiction to enforce a trust, and to compel the specific performance of a contract in relation to lands situate in another state, after having obtained jurisdiction of the persons of those upon whom the obligation rests, is a doctrine fully settled by numex’ous decisions. Penn v. Lord Baltimore, 1 Ves. 444; Massie v. Watts, 6 Cranch, 148; Penn v. Hayward, 14 Ohio St. 302, and cases therein cited.

It does not follow, however, that a court having power to compel the parties before it to convey lands situated in another state, may make its own decree to operate as such conveyance. Indeed, it is well settled that the decree of such court can not operate to transfer title to lands situate in a foreign jurisdiction. And this, for the reason that a judgment or decree in rem can not operate beyoxxd the limits of the jurisdictioxx or state whex’ein it is x’endex’ed. And if a decree in such case can not effect the transfer of the title to such lands, it is clear that a deed executed by a master, under the direction of the court, eaxi have no greater effect. Watts v. Waddle et al., 6 Pet. 389; Page v. McKee, 3 W. P. D. Bush, 135. The master’s deed to Evans must therefore be regarded as a nullity.

The next inquiry then is as to the force and effect of the decree rendered by the Circuit Court directing the heirs of Gen. Scott to convey the land in Ohio to Evans. This decree was in personam, and bound the consciences of those against whom it was rendered. In it, the contract of their ancestor to make the conveyance was merged. The fact that the title which had descended to them was held by them in trust for Evans, was thus established by the decree of a court of competent jurisdiction. Such decree is recox’d evidence of that' fact, and also of thé fact that it become an d was their duty to convey the legal title to him. The performance of that duty might have been enforced against them in that court by attachment as for contempt; and* the fact that the conveyance was not made iñ pursuance of the -order, does not affect the validity of the decree in so far as it determined the equitable rights of the parties in the land in controversy. In our judgment, the parties, and those holding under them with notice, are still bound thereby.

Under our code of practice, equitable as well as legal defenses may be set up in an action for the recovery of land. The defendant in the court below set up this decree of the Circuit Court of Kentucky as a defense to the plaintiffs’ action. That it did not constitute a good defense at law may be admitted, but we think, in equity, it was a sufficient defense.

The constitution of the United States declares that full faith and credit shall be given in each.state to the records and judicial proceedings of every other state, and provides that Congress may prescribe the mode of proving such records and preeeedings, and the effect thereof. By an act of May 26, 1790, Congress declared that the “ records and judicial proceedings of the state courts,” when properly authenticated, “shall have the same faith and credit given to them in every court within the United States, as they have, by law or usage, in the courts.of the state from whence they are or shall be taken.” When, therefore, a decree rendered by a court in a sister state, having jurisdiction of the parties and of the subject-matter, is offered as evidence, or pleaded as the foundation of a right, in any action in the courts of this state, it is entitled to the same force and effect which it had in the state where it was pronounced. Mills v. Duryea, 7 Cranch, 481; Hampton v. McConnell, 3 Wheat. 234; McGilvray & Co. v. Avery, 30 Vermont, 538. That this decree had the effect in Kentucky of determining the equities of the parties to the land in this state, we have already shown; hence the courts of this state must accord to it the same .effect. True, the courts of this state can not enforce the performance of that decree, by compelling _ the conveyance through its process of attachment; but when pleaded in our courts as a cause of action, or as a ground of defense, it must be regarded as conclusive of all the rights and equities which were adjudicated and settled therein, unless itbe impeached for fraud. See cases supra; also, Davis v. Headley, 22 N. 115; Brown v. L. &. D. R. R. Co., 2 Beasley Eq. (N.) 191; Dobson v. Pearce, 2 Kernan, 156; U. S. Bank v. Bank of Baltimore, 7 Gill, 415.

Motion overruled.

Bat, C. J., White and Rex, JJ., concurring. Welch, J., not sitting.  