
    Ring v. McCoun.
    An action brought to compel the conveyance of a farm to the plaintiff, on the ground that the defendant held it in trust for one who had conveyed it to the plaintiff, is an action for the recovery of real property, and under the code of procedure, must be tried in the county where the farm is situated.
    It is also an action for the determination of an estate, right, or interest in real property, and as such must be tried in the county where the property is situated.
    An alternative prayer for relief, that the defendant be adjudged to pay to the plain-tifi the money originally intrusted to him for the purchase of the farm, does not affect the character of the action in this respect.
    The provision in the code of 1848, giving jurisdiction to this court in cases mentioned in section one hundred and three, “ when the cause of action shall have arisen” in the city of New York, relates to the personal actions enumerated in that section, and it does not affect or control the clause giving jurisdiction “when the subject of the action shall be situated” in that city. (Code of 1848, § 39,103 ; Code of 1849, § 33, 193, 194.)
    Where the subject matter of an action island (or some estate, right or interest therein,) situate in some county other than New York, this court has not jurisdiction of the action under the code of procedure.
    This is so, although the acts which furnish the grounds of the suit, were all done in the city and county of New York, and in that sense the cause of action arose there.
    (Before Oakley, Ch. J., and Sandford and Paine, J.J.)
    Jan. 9 ;
    April 13, 1851.
    Appeal from a judgment at the special term, allowing a demurrer to the complaint, and dismissing the latter for want of jurisdiction.
    The complaint stated in substance, that John Mason, deceased, during his life, intrusted the defendant with $3,500 in cash, with instructions to purchase a farm for James Mason, a son of John Mason, the deed to be taken in the name of the defendant absolutely, and the farm to be held upon a general trust, for the benefit of James Mason and for his possession. That John Mason died shortly afterwards, without having declared any other trust respecting the farm or money. That a farm was bought on Long Island, by the defendant, with the money so intrusted to him, some time in the year 1838, and the deed taken in his own name absolutely. That after taking the deed, James Mason took possession of the farm by permission of the defendant, and retained the possession until he sold it to the plaintiff, as after mentioned, and expended $4,000 upon it in out-buildings, &e,, with the knowledge and consent of the defendant.
    That by reason of the instructions to the defendant and the purchase money furnished by John Mason, the defendant holds, and has always held the title of the farm in trust, and for the use and benefit of James Mason; by force of the statute no estate vested in the defendant; and the deed to him is a cloud upon James Mason’s title, in whom the legal and equitable estate was absolutely vested until he executed the deed to the plaintiff next mentioned.
    That about the 7th day of February, 1849, James Mason conveyed by a deed of bargain and sale, the farm and premises to the plaintiff, for the consideration of $6000, mentioned in the deed. That about the 20th of March, 1849, the plaintiff called upon the defendant, and exhibited to him a written notice, signed by James Mason, notifying him of the sale of the farm to the plaintiff, and requesting him, upon the demand of the plaintiff, to execute the papers necessary to vest the legal title to the farm in the plaintiff. That the plaintiff at the same time exhibited to the defendant, the deed of James Mason, and also a deed prepared for the defendant’s execution, which the plaintiff demanded that defendant should sign for the purpose of vesting in the plaintiff the legal title to the farm. That the defendant absolutely refused so to do, and also refused to sign any deed for that purpose. Copies of these deeds were annexed, from which it appeared that the farm is in the county of Queen’s.
    The prayer of the plaintiff’s complaint was, that the defendant might be directed to convey the legal title of the farm to the plaintiff, or that he might be directed to pay to the plaintiff the money received by the defendant of John Mason, deceased, together with the value of the improvements made on the farm by Janies Mason and the costs of the action.
    The defendant demurred to the complaint on the grounds :
    1st. That this court has no jurisdiction of the subject of this action; the same being brought for the recovery of real property situated in the county of Queen’s, or of an estate or interest therein, or for the determination, in some form, of such right and interest. And the joining of the claim tor money, with that mentioned in the preceding subdivision, can give this court no jurisdiction of the claim, in regard to the real estate in Queen’s county.
    2d. That there is a defect of parties defendant to the action., in the omission of John Mason’s heirs and personal representatives.
    3d. That several causes of action have been improperly united; viz. the claim to recover real property ; the claim to recover personal property; and also, in the same action, a claim against the defendant, as trustee, by virtue of a contract, or by operation of law.
    4th. That the complaint does not state facts sufficient to constitute a cause of action. (Under this there were several causes specified.)
    Vandeepoel, J., at the special term delivered the following opinion.
    This suit is brought to compel the defendant to execute to the plaintiff a deed of land in Queen’s comity. The first objection taken by the defendant is to the jurisdiction of the court. Section 123 of the code, (Laws of 1849, p. 640,) provides that actions for the following causes, must, be tried iu the county in which the subject of the action, or some part thereof, is situated.
    I. For the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property.”
    Seetion 33, (page 621,) which defines the jurisdiction of this court, provides that the jurisdiction of the superioi court of the city of New York, shall extend to the actions enumerated ⅛ sections 123 and 124, when the cause of the action shall have arisen, or the subject of the action shall be situated within those cities respectively.
    I regard the farm alleged to have been purchased by the defendant, as the subject of this action. It is surely for the determination of the interest in the firm, situate in Queen’s county, that this action is brought; no decree can be made in favor of either party, which does not determine the right to the farm. Sections 123 and 33 must be taken together.
    The plaintiff contends, that as the money was paid to the defendant in the city of New York, and the instructions to him to buy the farm, were given here, the cause of action, for the purposes of this question, must be deemed to have arisen in the city of New York. Section 123 provides clearly, that this action must be tried in the county of Queen’s, as the subject is situated there. It is contended by the plaintiff, that this is not the test of the jurisdiction of this court; that though an action must be tried in one county, it does not follow that it may not be brought and prosecuted in another; that under the 33d section of the code of 1849, the supreme court has power to remove any cause into the supreme court, and change the place of trial of any transitory action. I think the plaintiff is wrong in this view. If the statute requires that an action of a particular character should be tried in one county, it follows, pretty conclusively from this, that the legislature did not intend that it should be brought and prosecuted in a local court of another county. If an action is of such a nature that it must be tried in Chautauque county, it is quite natural to suppose, that the. power which thus determined the place of trial, did not intend that it should be instituted and prosecuted in the county court of Suffolk county.
    The plaintiff relies upon the first subdivision of the 33d section of the code, which gives the court jurisdiction, when the cause of action shall have arisen within this city, or the subject of the action shall be situated within it. The words italicised, must be taken in connection with the words, “to the actions enumerated in sections 123 and 124.” The defendant says, the cause of action arose here, in contemplation of the statute. Let as test the argument, by the second and third subdivision of section 123.
    The second subdivision gives jurisdiction in actions “for the partition of real property.” The third, “ for the foreclosure of a mortgage of real property.” Suppose a deed for real property in Erie, to be given in this city, could the grantee bring partition in this court, on the ground that his cause of action arose here, because his deed was given here ? So, of a mortgage for lands in Erie, executed here, could he maintain a suit of foreclosure in one of the local courts ? And would it be sound, in either of the above cases, to say, that the plaintiff’s cause of action, under section 33, must be deemed to have “ arisen ” here ? I think not. The argument in favor of the idea, that the cause of action arose here, would be quite as strong, in either of the above cases, as in the present. I consider the present, an action for the recovery of a farm in Queen’s county, or of an estate or interest therein, or for the determination, in some form, of such right or interest, and that this court has no jurisdiction of it. Unless the complainant proves a title to the farm, he is not entitled to a decree in his favor. Attempt to cover up and disguise the question as you may, it is an action brought to recover the farm; and I think this court has no more right to entertain jurisdiction of it, than of an action of ejectment, or, under the code, an action in the nature of an ejectment, to recover the farm in Queen’s county.
    This view renders it unnecessary to consider the point of merits presented by the demurrer. I consider the demurrer well taken, and that the complaint must be dismissed.
    The cause on the appeal, was argued by,
    
      J. J. Ring, in person, and
    
      F. F Marbury, for the defendant.
   By the Court.

Sandford, J.

We have no difficulty in affirming this judgment, on the ground taken by the judge at the special term. The suit is brought, most palpably, for the recovery of a farm in the county of Queen’s. The circumstance that the complaint does not pray the delivery of possession, lias no influence on its character. If the prayer be granted, the plaintiff recovers the title to the farm, which in effect is recovering the farm. The court, as a matter of course, would add to the judgment a direction that the defendant deliver up the possession. If the plaintiff should decline such direction, a suit in the nature of an ejectment founded on the judgment, would give him the possession; the title being already vested in him by the judgment.

Nor does the fact that the judgment sought in this case would operate on the defendant personally, affect the point. The object of the suit is land, and nothing else. The alternative prayer for the money intrusted to the defendant is of no consequence, because there is no pretence that he has misapplied the money, and the plaintiff, if entitled to recover at all, is entitled to the farm itself. He cannot, on the defendant’s refusal to convey, recover the value of the land, leaving it in the ownership of the defendant.

The action also foils within the other clause of the provision in the code of procedure. It is brought for the determination of an estate, right, or interest, in real property. We cannot assent to the argument, that this comprehensive language of the code, was designed merely to embrace the novel, and, as yet, scarcely tried, real action, originated by the revised statutes, entitled “ Proceedings to compel the determination of claims to real property in certain cases.” (2 R. S. 312.) Proceedings of this nature are, doubtless, within the language of the code; and so are a great many other actions equally embraced by it. The argument would be just as strong in favor of saying that none but actions for an equitable right in lands, were intended by the language in question. We are informed that the same view we take of the extent of this provision, was held by Mr. Justice Mitchell, in the supreme court in this district, two or three weeks since ; and that he applied it to an action brought for the purpose of declaring a conveyance of lands fraudulent, and to have the grantee claiming the land as his own, declared to be a trustee for others.

Then as to our jurisdiction of "this action. The code of 1848, which was in force when the suit was commenced, enacts that the jurisdiction of this court shall extend, first, to the actions enumerated in section one hundred and three, when the cause of action shall have arisen, or the subject of the action shall be situated in the city of New York; second, to all other actions where the defendants reside or are personally served with process in that city ; and third, to corporations in certain cases. (Code of Procedure of 1848, § 39.) Now the action before ns does not fall within the second subdivision, for the reason that il is one of those enumerated in section one hundred and three. It is true there are no words of exclusion, as there are in the code in respect of justices’ courts ; but the effect is the same, because the whole jurisdiction is bestowed by the code itself.

Then as to section one hundred and three; it contains, besides actions for the recovery of real property &c., partitions, and the foreclosure of mortgages; a large clasps of actions purely personal in their nature, most of which in the former practice were termed transitory, and others that were made local by statute. It is plain, therefore, that the words in section thirty-nine, “when the cause, of the action shall have arisen” in the city of New York, relate to the class of personal actions, and that they do not affect or control the other words, “ when the subject of the action shall be situated” in this city.

To express our idea in a different form, when the subject of the action, not of a transitory nature, is situated in the county of Queens, that fact must govern as to our jurisdiction ; although it may be true, that the acts which furnish the grounds of the suit were all done in the city of New York, and in that sense the cause of action arose there.

There is no analogy between this question and the jurisdiction of the vice-chancellors under the revised statutes. The latter had jurisdiction where either of the persons proceeded against resided in their respective circuits, without regard to the place where the cause arose, or where the subject matter in controversy was situated. (2 R. S. 168, § 2.) Nor does our construction oust the supreme court of any jurisdiction which the late court of chancery exercised against persons in this state, affecting lands owned or claimed by them in other states or countries. The jurisdiction of the supreme court is made general by the constitution. The code does not define it; much less does it assume to restrict its limits.

Without looking into the other grounds of demurrer, we must affirm the judgment.

Judgment affirmed.  