Full opinion text
STAYTON, Chief Justice. This action was brought by the wife and minor child of John M. Gay to recover from John C. Brown, as receiver for the Texas & Pacific Railway Company, damages for an injury received by him while in emplopment of the receiver, which resulted in his death. At the time the action was brought John C.'Brown was operating the Texas & Pacific Railway as receiver, under appointment made by the Circuit Court of the United States sitting for the Eastern District of the State of Louisana, but pending the litigation the receiver was discharged. After the discharge of the receiver, with pleadings setting up that fact, a judgment was rendered against him, which on appeal was reversed. Brown v. Gay, 76 Texas, 444. After this the pleadings were amended, and thereby the Texas & Pacific Railway Company was made a defendant; but this did not occur until jtnore than one year had elapsed after the death of John M. Gay. The pleadings show a state of facts which would have entitled John M.. Gay to have maintained this action against the railway company for the-injury, had he lived; but as it has been held that actions for injuries resulting in death could not be maintained against receivers under the law as it was when the injury and death in question occurred, questions have-been certified to this court under pleadings and a judgment against the-railway company which make them pertinent. ' The questions will be considered in their order. “ First. Did the Circuit Court of the United States for the District of Louisiana have jurisdiction to take possession through a receiver of that part of the road situated in the State and Northern District of Texas ? ’ ’ The Texas & Pacific Railway Company was chartered by an act of Congress, approved March 3, 1871, by which it was “ empowered to lay out, locate, construct, furnish, maintain, and enjoy a continuous railroad and telegraph line, with the appurtenances, from a point at or near Marshall, county of Harrison, State of Texas; thence by the most direct and eligible route, to be determined by said company, near the thirty-second-parallel of north latitude, to a point at or near El Paso; thence by the-most direct and eligible route, to be selected by said company, through. New Mexico and Arizona, to a point on the Rio Colorado, at or near the southeastern boundary of the State of California; thence by the most direct and eligible route to San Diego, California, to Ship’s Channel in the-bay of San Diego, in' the State of California.” Sec. 1, Act 1871. By the fourth section of the act the company was empowered “ to purchase the stock, land grants, franchises, and appurtenances of, and consolidate on such terms as may be agreed upon between the parties, with any railroad company or companies heretofore chartered by congressional, State, or territorial authority, on the route prescribed in the first section of this act.” The ninth section of the act provided for a grant of land to the company for so much of its road as was to be constructed through the Territories of the United States and the State of California. The twenty-second section of the act provided, “ that the New Orleans, Baton Bouge & Vicksburg Bailroad Company, chartered by the State of Louisiana, shall have the right to connect by the most eligible route, to be selected by said company, with the said Texas Pacific Bailroad at its eastern terminus, and shall have the right of way through the public lands to the same extent granted hereby to the said Texas Pacific Bail-road Company; and in aid of its construction from New Orleans to Baton Bouge, thence by way of Alexandria, in said State, to connect with the said Texas Pacific Bailroad Company at its eastern terminus, there is hereby granted to said company, its successors and assigns, the same number of alternate sections of public lands per mile, in the State of Louisiana, as are by this act granted in the State of California to said Texas Pacific Bailroad Company.” The seventeenth section of the act required the construction of the road to commence 1 ‘ simultaneously at San Diego, in the State of California, and from a point at or near Marshall, Texas, as herein before described, and so prosecute the same as to have at least fifty consecutive miles of railway from each of said points complete and in running order within two years after the passage of this act; and to so continue to construct each year thereafter a sufficient number of miles to secure the completion of the whole line from the aforesaid point on the eastern boundary of the State of Texas to the bay of San Diego, in the State of California, as aforesaid, within ten years after the passage of this act.” Congress passed a supplementary act, which was approved on March 2, 1872, and the first section of that changed the name of the corporation to “The Texas & Pacific Railway Company.” The fifth section declared, “That the said Texas & Pacific Bail way Company shall commence the construction of its road at or near Marshall, Texas, and proceed with its construction, under the original act and this supplement, or in pursuance of the authority derived from any consolidation as aforesaid, westerly from a point near Marshall, and towards San Diego, in the State of California, on the line authorized by the original act, and so prosecute the same as to have at least 100 consecutive miles of railway from said point complete and in running order within two years after the passage of this act; and so continue to construct each year thereafter a sufficient number of miles, not less than 100, to secure the completion of the whole line from the aforesaid point on the eastern boundary of the State of Texas to the bay of San Diego, in the State of California, as aforesaid, within ten years after the passage of this act; and the said road from Marshall, Texas, throughout the length thereof, shall be of uniform gauge.” After providing for construction from San Diego eastward, the section contains the following: ‘1 Provided, that said Texas & Pacific Bail way Company shall be and is hereby authorized and required to construct, maintain, control, and operate a road between Marshall, Texas, and Shreveport, Louisiana, or control and operate any existing road between said points, of the same gauge as the said Texas &c Pacific Railroad; and that all roads terminating at Shreveport shall have the right to make the same running connections, and shall be entitled to the same privileges for the transaction of business in connection with the said Texas & Pacific Railway as are granted to roads intersecting therewith: Provided, further, that nothing herein shall be construed, as changing the terminus of said Texas & Pacific Railway from Marshall, as provided in the original act. ’ ’ The Southern Pacific Railway Company was chartered by the laws of this State, and was empowered to construct, own, and operate a railway from the eastern boundary of Texas to El Paso. Spec. Laws 1852, p. 197; Spec. Laws 1856, p. 76; Spec. Laws 1860, p. 130. The Southern Transcontinental Railway Company was also chartered under the laws of this State, and empowered to construct a railway from a point on the eastern boundary of Texas to its western boundary. Spec. Laws 1870, p. 40; Spec. Laws 1871, p. 92. These corporations were authorized to consolidate with the Texas & Pacific Railway Company. Spec. Laws 1871, p. 489. Under this and the act of Congress referred to, the consolidation of these roads was effected, and Congress, by an act approved June 22, 1874, ratified the consolidation, and declared, that “ the roads so merged as aforesaid shall for that and all other purposes be deemed and taken to be a part of the said Texas & Pacific Railway, and shall hereafter be subject to all the provisions and limitations of the act of Congress incorporating said company, and of the supplement thereto.” These are the laws under and by virtue of which the Texas & Pacific Railway Company exists; and it is evident from them that the eastern terminus of that road is at the eastern line of the State of Texas, and that no part of it is in the State of Louisiana. It is true that the supplementary act, as well as the original, contemplated that, through some other road, connection between the terminus of the Texas & Pacific Railway and Shreveport, in the State of Louisiana, should be made; and to that end the later act required that company to make such a connection through a road to be built, controlled, and operated by it, or by some existing road between these points of which it might be able to obtain control; but that act expressly declares, that “ nothing herein shall be construed as changing the terminus of said Texas & Pacific Railway from Marshall, as provided in the original act.'” Both acts proceed upon the seeming assumption that the town of Marshall was at the eastern boundary«of the State of Texas; but in view of the questions submitted, it is immaterial whether the terminus be at the one place or the other, for they are both in this State. The original act evidently contemplated that there would be connection between the eastern terminus of the Texas & Pacific Railway and the Mississippi River through the New Orleans, Baton Rouge & Vicksburg Railway, and to that end, and to secure that, provided for a grant to that company of public lands situated in Louisiana; but no grant of public lands was contemplated for any road the Texas & Pacific Railway Company might construct from its eastern terminus to Shreveport. Congress had power to authorize the Texas & Pacific Railway Company to construct a railway other than that which it declared should be the Texas & Pacific Railway, and to operate and control it; and at the same time to declare that the one should not be part of the other. Where the terminus of a railway is under the terms of its charter, there it necessarily ends, in fact as well as in law; and the fact that the company may be authorized to construct and operate a railway beyond that terminus can not make the two one. A case is not presented in which one railway, under the terms of its charter, extends through or into two or more States, in one of which a receiver over the entire road was appointed by a court sitting in a State in which part of the road was; but the case is one in which a receiver was appointed by a Circuit Court of the United States sitting in and for the Eastern District of Louisiana, to take possession of, operate, and control a railway, no part of which was in the State of Louisiana. The appointment of a receiver by a court of general jurisdiction ought to be held conclusive of the power of the court to make the appointment when that is called in question collaterally, unless it appears that in the particular case the court was without jurisdiction. Jurisdiction must depend on the laws creating the court and prescribing its powers; and if it attempts to exercise a power not thus conferred, its judgments and decrees are not binding even upon parties, and may be declared inoperative by any other tribunal in which effect is sought to be given to them. If the fact on which jurisdiction depends is determined by law, then resort to presumptions ordinarily indulged in favor of the power of a court of general jurisdiction which has assumed to act in a given case is neither necessary nor admissible. In the matter now under consideration, it appears through a positive law, creating the Texas & Pacific Railway Company and fixing the locality of its road, that no part of that extends into the State of Louisiana; and the inquiry is presented whether the Circuit Court of the United States sitting in a district in that State, has jurisdiction to appoint a receiver with power to take possession of a railway situated in this State, and to control and operate it under its orders. The importance of avoiding conflict between the courts of the United States and the State courts can not be overestimated; but such harmony as should exist between them will be most surely preserved if strict regard by each for its own jurisdiction be observed; for usurpation of power by either will necessarily bring conflict. Where one has assumed the power to act in a given case, every lawful presumption that it did not act without jurisdiction ought to be indulged; but where it is clear that either has acted without lawful power, the other, when called upon to adjudicate the rights of litigants, can not refuse to make inquiry even as to jurisdiction of the other, when this becomes necessary to the determination of a question upon it, without surrendering power conferred updn them for the preservation Of the rights of litigants before them. For present purposes it will be assumed that the Texas & Pacific Railway Company exists by reason of its incorporation by acts of Congress, and that this is not affected by reason of its consolidation with corporations created under the laws of this State, and the acquisition of rights through consolidation. The Texas & Pacific Railway Company having been incorporated by acts of Congress, it is probably true that the Circuit Courts of the United States would not have jurisdiction of controversies between it and others on the ground of diverse citizenship. Neptune v. Ellzey, 2 Cranch, 445; New Orleans v. Winter, 1 Wheat., 91. It has, however, been held, in effect, that such courts have jurisdiction over litigation to which such corporations are parties, on the ground that they were so chartered, and without reference to the character of the question on which the right of litigants may depend. Texas & Pacific Railway v. Kirk, 115 U. S., 2. In a case in which such a corporation is a party jurisdiction of a Circuit Court of the United States ought to be presumed, if the action be not one local in its nature, or the relief sought, in whole or in part, be not such as can be given only by a court sitting where property is situated through which the court’s judgment may be enforced. The purpose for which the suit was brought in Louisiana by the Missouri Pacific Railway Company against the Texas <fe Pacific Railway Company is not fully set out in the statements made in connection with thp questions certified; but it appears thereform to have been such in form as it should be presumed made it proper for some court to appoint a receiver with power to take possession of the railway and property necessary to its operation belonging to the latter, and these to control and operate under its orders. Under circumstances somewhat various receivers may be appointed; but this can never be lawfully done unless deemed necessary for the preservation of property, the preservation or enforcement of rights of persons having claims against it, or to have it applied to some lawful purpose from which it has been or is likely to be diverted if the court does not take possession of it through a receiver, and so cause it to be applied or managed as may be deemed by the court most beneficial to all persons interested, having due regard to fixed rights. The intention of Congress, as a general rule, to limit the jurisdiction of Circuit Courts of the United States to persons and things within the district in which the court sits, as well as to restrict their process, whether original or final, to the same territory, is manifested by several statutes. It is provided, that “ Except in the cases provided for in the next three sections, no person shall be arrested in one district for trial in another, in any civil action before a Circuit or District Court; and except in the said cases provided by the preceding section, no civil suit shall be brought before either of said courts against an inhabitant of the United States, by any original process, in any other district than that of which he is an inhabitant or in which he is found at the time of serving the writ.” Rev. Stats., art. 739. That was amended by the Act of Congress approved March 3, 1887, which was corrected by the act approved August 13, 1888; and the amendment, without changing the other parts of the statute, withdraws the right to maintain an action in a district in which a defendant is found at the time of serving the writ, and adds, that “ when the jurisdiction is founded only on the fact that the action is between citizens of different States, suit may be brought only in the district of the residence of either the plaintiff or the defendant.” This statute furnishes now the general rule. The exceptions referred to are as follows: ‘ ‘ When a State contains more than one district, every suit, not of local nature, in the Circuit or District Courts thereof, against a single defendant, inhabitant of such State, must be brought in the district where he resides; but if there are two or more defendants, residing in different districts of the State, it may be brought in either district, and a duplicate writ may be issued against the defendants, directed to the marshal of any other district in which any defendant resides.” The section further provides, that on “ judgment or decree rendered therein execution may be issued directed to the marshal of any district in the same State.” Rev. Stats., art. 740. “In suits of a local nature, where the defendant resides in a different district in the same State from that in which the suit is brought, the plaintiff may have original and final process against him directed to the marshal of the district in which he resides.” Rev. Stats., art. 741. ‘ ‘Any suit of a local nature, at law or in equity, where the land or other subject matter of a fixed character lies partly in one district and partly in another, within the same State, may be brought in the Circuit or District Court of either district; and the court in which it is brought shall have jurisdiction to hear and decide it, and to cause mesne or final process to be issued and executed, as fully as if the said subject matter were wholly within the district for which such court is constituted.” Rev. Stats., art. 742. These laws are in express terms made applicable only to Circuit or District Courts sitting in different districts in the same State, and have no application whatever either to jurisdiction or process of a Circuit Court sitting in one State in reference to persons or property situated in another State. Circuit Courts of the United States having only such jurisdiction as-Congress has conferred upon them, those statutes bear evidence of a broad recognition by Congress not only of the impropriety of permitting the adjudication of rights to or in reference to property situated in one State by a court sitting in another, but also of the propriety of having the rights of citizens adjudicated by courts sitting in the States of which they are citizens or inhabitants. The act'of Congress further provides, that “ When any defendant in a suit in equity to enforce any legal or equitable lien or claim against real or personal property within the district where the suit is brought is not an inhabitant or not found within said district, and does not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant to appear, plead, answer, or demur to the complainant’s bill at a certain day, therein to be designated; and the sai fiord er shall be served on such absent defendant, if practicable, wherever found, or when such personal service is not practicable, shall be published as the court shall direct.” Rev. Stats., art. 738. The statute further provides, that under such citation the court may adjudicate the pending matter, but that “ the said adjudication shall, as regards such absent defendant without appearance, affect his property within such district only.” The proceeding here contemplated is essentially one in rem, and might-frequently be applicable in cases in which appointment of a receiver would be proper or even necessary; and it authorizes the process of the court to run beyond the district or even beyond the State in which the-court issuing it sits, for the sole purpose of giving notice to a defendant. Act last referred to was amended by an act approved March 3, 1875; whereby the same rule was also made applicable to suits ‘ ‘ to remove any encumbrance or lien or cloud upon the title to real or personal property within the distinct where such suit is brought;” and it further provided, “ when a part of the said real or personal property against which such proceedings shall be taken shall be within another district, but within the same State, suit may be brought in either district in said State.” This law, however, applies only to courts sitting in a district in which the property is wholly or partly situated against which some claim specified in the act is asserted, and would not authorize the maintenance of such a suit or such use of processs when the property, real or personal, is. situated partly in one and partly in another district, unless both districts be in the same State. Here we have a broad recognition of the rule, that property, whether real or personal, can be affected only by judgments or decrees of courts sitting within the State in which the property is situated; that jurisdiction over that as well as litigants is essential, and that the former can exist only by reason of the fact that the property is situated within the territory over which the court is given jurisdiction, and the latter by service of process made in the manner prescribed by law. If there be any other act of Congress under which, in litigation between persons or between them and corporations, the process of a Circuit Court of the United States is authorized to run beyond the limits of the-State in which the court is authorized to sit, attention has not been called to it. By act approved March 3, 1881, two judicial districts were created in the State of Louisiana, and the courts for the Eastern District were thereby required to be held in New Orleans, while those for the Western District were required to be held at four places named in the act, one of which was Shreveport. That act recognizes the fact that all suits of a local nature must be brought in the district in which the thing to which it relates is situated; and secures to any inhabitant of that State who is a sole defendant exemption from suit in a district other than that in which he resides. By Acts of August 8,1888, the districts in Louisiana were subdivided, and in cases in which there are defendants residing in different divisions-process is authorized to reach them; and while those statutes have no direct bearing on the question presented, they show that Congress deemed it necessary, even in such cases, to authorize process to run beyond the division in which the court issuing it sat. The rule, that ordinarily a receiver appointed by a court having jurisdiction to make the appointment is an officer of that court, having only such power as the order of the court under the general principles of law and due course of procedure may confer upon him, or such as may be conferred upon him by statute; that his possession is the possession of the court, and property thus placed in his hands is in custodia legis, is so fully recognized that citation of authorities in support of the rule seems unnecessary. Prominent among the decisions so holding are the cases of Booth v. Clark, 17 Howard, 331, and Davis v. Gray, 16 Wallace, 217. From those considerations it must follow that a court can not confer upon a receiver power outside of the territory over which it has jurisdiction, for its process can not be effective beyond that, unless authorized by statute to reach to other territory within the limits of the country to which the court belongs; and where the process of a court can not go and be entitled to enforcement and respect, its officers can not have power. Northern Indiana Railway Co. v. Michigan Railway Co., 15 How., 242; Ableman v. Booth, 21 How., 524; Toland v. Sprague, 12 Pet., 328; Pennoyer v. Neff, 95 U. S., 714; Harkness v. Hyde, 98 U. S., 476. In Ableman v. Booth it was truly said, that “ no judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and .an attempt to enforce it beyond those boundaries is nothing less than lawless violence.” Whether want of jurisdiction arises from the fact that the thing to be •affected by judgment and process of a court is without its territorial jurisdiction, or without its jurisdiction for any other reason, is unimportant, for in either case the process is invalid because the court has not jurisdiction. This brings us to the inquiry whether the Circuit Court for the United States sitting in and for a district in the State of Louisiana had jurisdiction to appoint a receiver, and through him to take possession and control of a railway no part of which was in the State or district in which the court was authorized to sit, but of which a part at least was in this State. Such an inquiry must be determined by the laws of the United States creating Circuit Courts and determining their jurisdiction; and without making further particular reference to the statutes regulating that matter, the decisions of the Supreme Court of the United States bearing on that ■question will be briefly noticed. As before said, the jurisdiction of that court over an action transitory or personal in its nature between the two railway corporations will be ■conceded; for if the defendant in that suit could not, for any reason, have been compelled to appear in that court, that was a matter it might waive. In Toland v. Sprague, 12 Peters, 328, it was said: “The judiciary act has divided the United States into judicial districts. Within these districts a Circuit Court is required to be holden. The Circuit Court of each district sits within and for that district, and is bound by its local limits. Whatever may be the extent of their jurisdiction over the subject matter of suits in respect to persons and property, it can only be exercised within the limits of the district. Congress might have authorized civil process from any Circuit Court to have run into any State of the Union. It has not done so. It has not in terms authorized any original civil process to run into any other district, with the single exception of subpoenas for witnesses within a limited distance. In regard to final process, there are two cases, and two only, in which writs of execution can now by law be served in any other district than that in which the judgment is rendered; one in favor of private persons, in another district of the same State, and the other in favor of the United States, in any part of the United States. We think that the opinion of the Legislature is thus manifested to be, that the process of a Circuit Court can not be .served without the district in which it is established, without the special •authority of law therefor.” In Railway Company v. Railway Company, 15 Howard, 233, it appeared that a railway company in Michigan, incorporated under the laws of that State, made an agreement with a railway company in and incorporated by the laws of Indiana, whereby the latter agreed that the former might build and operate a road in Indiana under the charter of the latter. Another railway company, also established by the law of Indiana, claimed the exclusive right to construct and operate a road in that part •of Indiana, and it brought a suit in the Circuit Court of the United States for the district of Michigan against the Michigan road, in which injunction was sought to restrain that company from constructing a road under the contract, in violation of the exclusive right claimed by the plaintiff. In disposing of the case the court said: “In this case we shall consider the question of jurisdiction in regard to the district only. In all cases of contract, suit may be brought in the Circuit Court where the defendant may be found. If sued out of the district in which he lives, under the decisions he may object; but this is a privilege which he may waive. Whenever the jurisdiction of the person will enable the Circuit Court to give effect to its judgment or decree, jurisdiction may be exercised. But whenever the subject matter in controversy is local, and lies beyond the limit of the district, no jurisdiction attaches to the Circuit Court sitting within it. An action of ejectment can not be maintained in the district of Michigan for land in any other district, nor can an action of trespass quare clausum fregit be prosecuted when the act complained of was not done in the district. “ Both of these actions are local in their character, and must be prosecuted where the process of the court can reach the locus in quo.” It was insisted in that case, as in others which will be hereafter considered, that the court having jurisdiction of the persons could enforce its .judgment by acting upon them; which would seem to be true, as injunction only was sought, if there was no other obstacle to the extension of such jurisdiction; but after indicating the class of cases in which the court could thus enforce its judgments, the court said: “ It will readily be admitted, that no action at law could be sustained in the District of Michigan, on such ground, for injuries done in Indiana. No action of ejectment or for trespass on real property could have a more decided local character than the appropriate remedy for the injuries complained of. And is this character changed by a bill in chancery ? By such a procedure we acquire jurisdiction of the defendants, but the subject matter being local, it can not be reached by a chancery jurisdiction, exercised in the State of Michigan.” < A suit was brought in the Circuit Court for a district in Tennessee, io cancel a contract for the sale of land in Mississippi, to recover money paid on the contract, and to enjoin the adverse party from enforcing it. The relief asked was granted; but the court attempted to establish a, lien on the land in Mississippi, and directed it to be sold by persons acting under its appointment, to satisfy the judgment rendered in favor of the plaintiff; but on appeal it was held, that “ the court had no jurisdiction to decree a sale to be made of land lying in another State, by a master acting under its own authority,” and that it had no power to-create a lien on the land. Boyce v. Grundy, 9 Pet., 289. In Railway v. Ward, 2 Black, 485, it was held, that a District Court of' the United States for the district of Iowa had not jurisdiction to abate as a public nuisance a bridge across the Mississippi River, the middle of that stream being the boundary between the States of Iowa and Illinois; and in the course of the opinion it was said: “ Congress could extend the jurisdiction of the Federal courts across the Mississippi River by enlarging the judicial districts on either side; or it could confer concurrent jurisdiction on adjoining districts, extending to trespasses and torts committed within the shores of the river. But the courts of justice can not do it unless authorized by an act of Congress.” The direct purpose of all judicial action is relief to a litigant, which can not be given by a judgment or decree alone, but must be given, if all, through the enforcement of the one or the other by appropriate process; and the highest test of the jurisdiction of a court in a given case is found in the answer to an inquiry whether it has lawful power thus to enforce its judgment or decree. This rule is thus clearly expressed by the Court of Appeals of Maryland: “It would be an idle thing in chancery to entertain jurisdiction of a matter not within its reach, and make a decree which it could have no power to enforce or to compel a compliance with. And the absence of that very power is a good test by which to try the question of jurisdiction. It would be a solecism to say that the chancellor has jurisdiction to decree in rem, where the thing against which the decree goes, and is alone the subject of and to be operated upon by it, is beyond the territorial jurisdiction of the Chancery Court, and not subject to its aup thority, and the decree, if passed, would itself be nugatory for the want of power or jurisdiction to give it effect.” White v. White, 7 Gill & J., 210. There are classes of cases, however, in which courts of chancery may, through action on persons over whom they have jurisdiction, indirectly affect title to property, real or personal, situated in a State not within their jurisdiction. Such jurisdiction, however, is tentative in character',, and necessarily precarious; for it depends for effect on obedience of a defendant, and may be defeated if he be unyielding. If in the exercise of such jurisdiction a foreign court, by imprisonment or like coercion, should compel a conveyance when, by the laws of the country where the property is, no right to a conveyance existed, then a court of the country having jurisdiction over the property might disregard a conveyance made under such circumstances. • An eminent writer thus states the rule which has been recognized: •“ Where the subject matter is situated within another State or country, but the parties are within the jurisdiction of the court, any suit may be maintained and remedy granted which directly affect and operate upon the person of the defendant and not upon the subject matter, although the subject matter is referred to in the decree, and the defendant is ordered to do or to refrain from certain acts towards it; and it is thus ultimately but indirectly affected by the relief granted. As examples of this rule, suits for specific performance of contracts, for the enforcement of express or implied trusts, for relief on the ground of fraud, actual or constructive, for the final accounting or settlement of a partnership, and the like, may be brought in any State where jurisdiction of defendant’s person is obtained, although the land or other subject matter is situated in another State, or even in a foreign country. On the other hand, when the suit is strictly local, the subject matter is specific property, and the relief when granted is such that it must act directly upon the subject matter, and not upon the person of the defendant, the jurisdiction must be exercised in the State where the subject matter is situated.” Pome. Eq., 1318; Whart. Confl. of Laws, 288-293. This rule has been recognized by the Supreme Court of the United States, and by the decisions of the State courts. Massie v. Watts, 6 Cranch, 148; Caldwell v. Carrington, 9 Pet., 97; Watkins v. Holman, 16 Pet., 26; Railway v. Railway, 15 How., 243; Corbett v. Nutt, 10 Wall., 475; Pennoyer v. Neff, 95 U. S., 723; Watts v. Waddle, 6 Pet., 389; White v. White, 7 Gill & J., 211; Vaughan v. Barclay, 6 Whart., 392. In Watkins v. Holman it was said: “A court of chancery, acting in personam, may well decree the conveyance of land in any other State, and may enforce their decree by process against the defendant. But neither the decree itself, nor any conveyance under it, except by the person in whom the title is vested, can operate beyond the jurisdiction of the court.” The property in controversy in that cause was situated in the State of Alabama, and the owner thereof sold one-lialf of the property and gave bond to make title, after which, without making title, he died; administration was taken out on his estate in Massachusetts, and under an act of the Legislature of Alabama the administratrix was authorized to sell the real estate situated in that State. The holder of the'bond for title brought, a suit in the Supreme Judicial Court of Massachusetts, praying that court, to empower the administratrix to make title to him in accordance with the bond, and such an order Was made and complied with. It was with reference to a deed made under such circumstances that the language above quoted was used. The case of Corbett v. Nutt was one which made it proper to inquire-whether the Supreme Court of the District of Columbia had power to appoint a trustee for land in Virginia, in place of a trustee in whom title-had vested under a will, that person declining to accept the trust; and in holding that this court had not such power, the same ruling was made as in Watkins v. Holman. Jurisdiction of courts of equity, even in the classes of cases referred to, exists only when the relief sought is such that it may be given by the act-of the person over whom the. court exercises jurisdiction; and it is probably true that no decision made by an English or American court in modern times holds that such jurisdiction exists for the purpose of compelling a person, by conveyance or otherwise, to place property situated in a jurisdiction essentially foreign to it under the control of a court, in order that it may administer it through a receiver or otherwise. The law is thus stated by a distinguished elementary writer: “The-claim to affect foreign lands must be strictly limited to those cases where the relief decreed can be entirely obtained through the parties’ personal obedience; if it went beyond that, the assumption would not only be presumptuous, but ineffectual.” Westl. Priv. International Law, art. 65. That Judge Story, to say the least, doubted the existence of such jurisdiction, even with this limitation, is evident. Story Confl. of Laws, 543, 544, 545. This seems necessarily to be a correct limitation of the rule; for otherwise a court in one State would have power to acquire jurisdiction over-lands situated in another. If a person be under contractual obligation to convey lands, a court of equity having jurisdiction over his person may compel him to make the-necessary conveyance, although the land is in another State; but in such case the decree and process through which it is enforced creates no right to the thing, and only enforces the specific right created by the contract;. The same jurisdiction may be exercised when land is held in trust, whether this arises from contract, devise, or fraud; but in such cases the court simply compels the person, over whom it has jurisdiction, to pass to another title to the'specific thing on account of a fixed right to it existing when the suit was brought. If, however, the right or claim which a court in one State attempts to-enforce against lands situated in another, be one that arises from its decree and execution of its process, then the court is directly acting upon the thing over which it has not jurisdiction, and to such a case the rule can not be applied. There are a few American cases which seem to hold that jurisdiction to compel a conveyance of land or other property situated in another "State exists under facts last stated; and while they have no direct application to the question certified, they are often cited to sustain the proposition that a court sitting in one State has jurisdiction to appoint a receiver, and through him to take possession of real and personal property situated in another State. They will be briefly considered in view of that fact. The subject matter involved in Muller v. Davis, 94 United States, 444, was a continuous line of consolidated railway, situated in the States of Iowa and Missouri, and a Circuit Court of the United States for a district in Iowa, in foreclosure of a mortgage, directed a sale of the entire road by a master; the mortgagor and trustee, in whom it seems the title was vested, being before the court. In the course of the opinion it was said: “It is now undoubtedly a recognized doctrine that a court of equity, sitting in a State and having jurisdiction of the person, may decree a conveyance by him of land in another State, and may enforce the decree by process against the defendant. True, it can not send its process into that other State, nor can it deliver possession of land in another jurisdiction, but it can command and enforce a transfer of the title. And there seems to be no reason why it can not, in a proper case, effect the transfer by the agency of the trustees when they are complainants. In McElrath v. The Pittsburg & Steubenville Railway Company, 55 Pennsylvania State, 189, a bill for foreclosure of a mortgage, in which it appeared that a railway company whose road was partly in Pennsylvania and partly in West Virginia, had mortgaged all their rights in the whole road, the court decreed that the trustee who had brought the suit, being within, its jurisdiction, should sell and convey all the mortgaged property, as well that in the State of West Virginia as that in Pennsylvania. This case is directly in point, and tends to justify the decree made in the present case. The mortgagors here were within the jurisdiction of the court. So were the trustees of the mortgage. It was at the instance of the latter the master was ordered to make the sale. This court might have ordered the trustee to make it. The mortgagors who were foreclosed were enjoined against claiming property after the master’s sale, and directed to make a deed to the purchaser in further assurance; and the court can direct the trustee to make a deed to the purchaser in confirmation of the sale.” Under similar facts the same ruling was made by the Supreme Court, of Errors of Connecticut in Mead v. Railway, 45 Connecticut, 223. There are a few legal propositions bearing on the question of the existence of such a jurisdiction, to which the courts of the United States and of the several States all assent. One of these is, that jurisdiction over real property exists only in the tribunals of the country in which it is situated, and that it can not be taken possession of or sold under the order, license, or decree of a court having jurisdiction only in another State. Wilkinson v. Leland, 2 Pet., 654; Watts v. Waddle, 6 Pet., 400; Boyce v. Grundy, 9 Pet., 275; Watkins v. Holman, 16 Pet., 26; Railway v. Railway, 15 How., 233; State of Pennsylvania v. Bridge Co., 18 How., 453; Railway v. Ward, 2 Black, 485; Corbett v. Nutt, 10 Wall., 475; Reynolds v. Stockton, 140 U. S., 272; Lewis v. Darling, 16 Pet., 13; Carpenter v. Strange, 141 U. S., 105. A decree foreclosing a mortgage and the process through which it may be enforced acts upon the mortgaged property directly; the sale when made is essentially a judicial sale, which has frequently been declared to be a sale by the court. In Williamson v. Berry, 8 Howard, 546, a judicial sale was defined to be ‘ ‘ one made under the process of a court having competent authority to order it, by an officer legally appointed and commissioned to sell;” and unless the decree directs otherwise, the usual mode of procedure and the effect of each act are thus stated: “ The usual mode of selling property under a decree or order in chaneery is a direction that it shall be sold with the approbation of a master in chancery, to whom the execution of the decree in that particular has been confided. It matters not whether the sale is public or private by a person authorized to make it, but that the approbation of the master in either case completes the title. Before, however, a purchaser can get a title, he must get a report from the master that he approves the sale, or that he was the best bidder, accordingly as the sale may have been made either privately or at auction. The report then becomes the basis of a motion to the court, by the purchaser, that his purchase may be confirmed. Notice of the motion is given to the solicitor in the cause, and confirmation nisi is ordered by the court, to become absolute in a time stated, unless cause is shown against it. Then, unless the purchaser calls for an investigation of the title by the master, it is the master’s privilege and duty to draw the title for the purchaser, reciting in it the decree for sale,' his approval of it, and the confirmation by the court of the sale, in the manner that such confirmation has been ordered. We have been thus particular, for the purpose of showing the office of the master in relation to a sale, and what is meant by subjecting a sale to the approval of a master, and to show that such a sale, until approved by the master and confirmed by the court, gives no title to a purchaser of an estate which he may have bargained to buy.” ’In Blossom v. Railway Company, 3 Wallace, 207, in which sale under foreclosure of a mortgage came in question, it was said: “ It is true that the marshal or master, as the case may be, is the officer of the court, and that as such his acts and proceedings are subject to the revision and control of the court. In sales directed by a court of chancery, says Judge Story, the whole business is transacted by a public officer, under the guidance and superintendence of the court itself. Even after the sale is made, it is not final until a report is made to the court, and it is approved and confirmed.” Reference to these matters has been made for the purpose of illustrating the proposition that judicial sales, whether made on foreclosure of mortgage or for some other purpose, are, in effect, sales made by the court directing the sale; and it is difficult to avoid the conclusion that the rule asserted in Muller v. Davis, and other cases cited, has no application in any case in which a sale of the thing is necessary before any person can become entitled to have it conveyed to him; for in such cases it is the decree, sale, and confirmation, and payment of the purchase money, which give the right to the conveyance, and all these for efficacy must depend on the jurisdiction of the court, through its decree and process, to act directly upon the thing. The fact that a person has executed a mortgage does not authorize any court to require him to convey the mortgaged property to the mortgagee or to any other person; nor does the fact that a mortgage gives power to a trustee named in it to sell the mortgaged property on. failure of mortgagor to pay the sum so secured, authorize him to convey on failure of mortgagor to make such payment; but in either case there must foe a sale made under the mortgage before any person can become entitled to a conveyance. A deed is but evidence of a right; and in case of judicial sales, a valid decree, sale by an authorized person, and confirmation are ordinarily essential to the right of a purchaser to a conveyance. These and compliance with the terms of sale create the right to a conveyance; and they can have no legal existence unless the court directing and confirming the sale had jurisdiction. The right of a purchaser at such sales rests on the fact that a sale was made in pursuance of decrees and orders made by a court in the exercise of lawful power over the thing sold, and not upon a prior right to the thing, which the court simply enforces by compelling the adverse party to make a conveyance which he ought to have made without coercion; and there is at least a seeming inconsistency in holding that a court has power to decree a sale of property, cause it to be sold by its own officer acting under its process, and to confirm the sale, but that to perfect the title of the purchaser it is necessary to compel the owner to make a conveyance. No case can arise, unless under exceptional legislation, in which a court having jurisdiction to decree the sale of property, and that to make under its own process, has not power to pass whatever title the defendant has without resort to any aid whatever from him. To base jurisdiction to decree the sale of land and to sell it, although it be hot situated within the territory over which the court has jurisdiction, on the proposition that the court has power, in a different but proper case, to compel a person before it to make a conveyance he is under obligation to make, without reference to any action of the court, seems to us illogical; for the powers are not of the same character, nor the one in any •respect dependent on the other. One is a power exercised directly on the person over whom the court has jurisdiction; while the other operates, if at all, as directly on the thing not within its jurisdiction; for if the decree directing the sale and sale made under it be not given full effect, the purchaser can have no right to-a conveyance. Substance and not form ought to be regarded. No case can arise in which a court will have power to appoint a receiver unless there be property of which the court may take possession through its receiver; and if the property be immovable, or movable, but so connected with immovable as are cars or other like property necessary to and used in operating a railway, then the suit in which a receiver to take possession of them may be appointed is necessarily one local in character; for in such case the court operates directly upon the thing. Such a proceeding is not one strictly in rem, but such is its nature; and under general rules everywhere recognized, such proceeding can be had only where the thing to be taken into possession is within the territory within which the court has power to act. The line between actions termed' local and transitory, in some of the decided cases, becomes shadowy; but in no case can.a suit the purpose of which is to subject certain property, whether real or personal, to payment of a debt, or to have it placed in possession of and under control of a court for any purpose of administration, be termed other than-a local action. The difference between local and transitory actions was thus stated in case of Mostyn v. Fabrigas, 1 Cowper, 161, by Lord Mansfield: 11 There is a formal and substantial distinction as to locality of trials. I state them as different things; the substantial distinction is, where the proceeding is in rem, and where the effect of the judgment can not be had, if it be laid in the wrong place. That is the case of all ejectments where the possession is to be delivered by the sheriff of the county; and as trials in England are in particular counties, the officers are county officers; therefore the judgment could not have effect if the action was not laid in the proper county.” It has sometimes been stated that the principles thus announced furnished simply a technical rule in reference to venue, and that they had. no bearing on the more substantial question of jurisdiction; but the language of the great judge is not susceptible of such a construction. The case of British South Africa Company v. Compantriade Mocambique, Appeal Cases, 602, decided in the House of Lords in the year last past, sets all such questions at rest, so far as the English courts are concerned. The opinion in the case may be read with profit on the question of extra-territorial jurisdiction of the courts of that country, and it is not without value as to the general claim for equity jurisdiction already considered. The principles stated in Mostyn v. Fabrigas met with the approval of Chief Justice Marshall in Livingston v. Jefferson, 1 Brockenbrough, 209, and in deference to what he understood to be the difference between such actions at common law, he felt constrained to hold that an action of trespass quare clausum fregit was a local action. In Casey v. Adams, 102 United States, 66, there was a fund in reference to which it became necessary to settle priorities between creditors, and a question arose whether this should be done by the court where the fund was, or by a court sitting in the parish where the national bank to which the fund belonged was situated. The act of Congress permitted suits to be maintained against such associations in the county or parish in which the bank was located, and it was contended that the proceeding could be maintained only in that parish. In disposing of the question the court said: “ The distinction between local and transitory actions is as old as actions themselves, and no one has ever supposed that laws which prescribe generally where one should be sued included such suits as were local, either by statute or the common law, unless it was expressly so declared. Local actions are in the nature of suits in rem, and are to be prosecuted where the thing on which they are founded is situated. * * * The proceeding in this case was local in its nature. It related to property in the parish of Lafourche, which had been seized and sold under process from the District Court of that parish.” Under the laws of this State, as well as from the nature of the property itself, a railroad, which includes the right of way, rails, and all other material placed thereon, or on other land used in connection therewith for permanent use, as well as all necessary structures, such as station houses for storage of freight and accommodation of passengers, water tanks, and like structures, must be deemed real estate or immovable property; but the rolling stock and other movable property of such a company is declared by the Constitution to be personal property. Const., art. 10, sec. 4. Under the settled rules of law, can such property be taken possession of by a court having jurisdiction only in another State, if the property be situated in this ? Looking to the relation of rolling stock and other movable property-necessary to the operation of a railway, and to the public use of the entire property, the same reasons will be seen to apply for holding such property subject to seizure, possession, or sale only by a court having jurisdiction within the territory where the property is situated, as apply to the seizure, possession, or sale of immovable property, even if it could be held that the same rule in this respect does not apply to movable as well as immovable property. Whether the lex rei sitae or the lex domicilii be applied to the movable property owned and used by the Texas & Pacific Railway Company, is unimportant; for under neither was its situs in the State of Louisiana, unless there in fact; and if in course of railway traffic some of the movable property belonging to it was in fact in Louisiana when the receiver was appointed, that could not confer on the court making the appointment jurisdiction over property not so situated. The same result would necessarily follow, even if under the act of Congress or some law of the State of Louisiana the railway company had acquired and then possessed in the State of Louisiana property movable or immovable, unless it be the law that ownership and possession of property in one State, with jurisdiction over the person of the owner, is sufficient to confer upon a court only having jurisdiction therein power to take possession and control of other property situated in another State. The act of Congress, as before seen, in effect, declares that the eastern terminus of the Texas & Pacific Railway shall be at Marshall or at the eastern line of this State, and no railway east of that line constitutes a part of that, even though it may be owned and operated by that company. If, however, the Texas & Pacific Railway, as a continuous line under common ownership, extended into the district in which the Circuit Court making the appointment had jurisdiction, we do not see that, under the acts of Congress before referred to, it would have jurisdiction to appoint a receiver, and through him or otherwise to take possession of that part of the railway situated in Texas, even if the decision in Muller v. Davis be correct when applied to the facts of that case; for that decision recognizes the law to be that the court “could not send its process into that other State, nor can it deliver possession of land in another jurisdiction.” If that court could not have power to place a private owner in possession, it certainly could not take possession through its receiver or otherwise; for the incapacity, in the one case as in the other, results from the absence of jurisdiction over the property. If it were the ownership of property which gives a court jurisdiction •over it, then it would exist wherever the court has jurisdiction over the person of the owner; but under-the acts of Congress, jurisdiction over -property is not founded on ownership, but on the locality of property, although ownership may become a controlling fact in settling the rights of parties. This being true, that a part of a connected and entire property may be within the jurisdiction of the court can not confer upon it jurisdiction to take possession or otherwise deal directly with that part situated in a State within which the court has not jurisdiction. This is illustrated by the case of Railroad Company v. Ward, 2 Black, 485, and by other cases before referred to. If the railway corporation could have been compelled to convey its property here situated to the court’s receiver—a power which the president and directors of the company, or even its stockholders, could not exercise under the laws of this State—this would not remove the difficulty as to jurisdiction; for if the receiver could thus be clothed with title to the property, the disposition of it would rest on the decrees of the court appointing him; for these are the foundation of every judicial sale or disposition of property through a court, when not made on account of an existing right to property through which the person to whom it ought to be conveyed is entitled to it, without reference to the decrees of any court, and the receiver’s possession would still be the possession of the court. Let the matter be obscured as it may, in such cases the court acts directly on the property; sells it if it be sold, conveys it if it be conveyed, and possesses it if it be in any manner placed in the hands of its receiver. In Moseby v. Burrow, 52 Texas, 396, it appears that a resident of the State of Arkansas brought an action in this State against a corporation in Tennessee, whose property there was placed in the hands of a receiver by a chancery court of that State. The corporation had lands here, which were attached after they had been conveyed to the receiver under the order of the court that appointed him, by the officer of the corporation to whom the lands had been conveyed in trust for it; and in the action here the receiver asserted right to the land against the attaching creditor. The Supreme Court of this State refused to recognize his right, or the jurisdiction of the court that appointed him to affect in the manner attempted lands situated in this State, and applied the rules announced in Booth v. Clark and in other cases cited in the opinion. In Morris v. Hand, 70 Texas, 481, it appeared that Hand made a contract with Fox, such as could be specifically enforced, to convey lands in Texas; and they both being residents of Montgomery County, in the State of New York, Fox obtained a decree from the Supreme Court of that county directing Hand to make to him a conveyance, or to pay a named sum of money. Hand did not comply with the decree, but was subsequently adjudged insane, and Brown was appointed committee of his estate, and in pursuance of a decree directing him to do so, Brown conveyed the land to Fox, In a controversy here between the heirs of Hand and a person holding under the conveyance made by Brown, it was held to be “ settled without conflict of authority, that courts of one country or State have no authority under any circumstances to divest the title to real estate situated in a foreign • State or country, or to direct the sale of such land to be made by any one occupying a fiduciary capacity.” The opinion, however, recognized the rule, that in proper cases such relief might be given through personal process against the person who had obligated himself to convey. /"""^Decisions doubtless may be found in which it was held in England, at an early day, that chancery courts of that country had power to appoint receivers and take possession through them of property in Ireland, in the colonies, and in countries having no governmental connection with England; but as said in Booth v. Clark, “orders have been