iffs, or that the plaintiffs themselves had acquired it from the state. And in the latter case the question could scarcely arise, because the plaintiffs, having a perfect title direct from the state, would not fail to produce it. The presumption of title in the possessor is indulged in favor of quieting the land titles of the country and to support the possession and right of those who, under a claim of right, hold such possession, but whose claim of title is not complete in all parts. If the position taken in this case be established as the law, then the object and purpose of such a presumption which has so long prevailed in common law courts will be defeated, and the title of every possessor of real estate whose claim of title was not perfect would be placed at the mercy of those who, either by force, fraud, or strategy, could secure the possession and thus place the actual and rightful possessor upon proof of a regular chain of title from the government, and in case of failure to do so could defeat his right by simply showing that the title had passed out of the state without showing any claim of title in himself."

REAL ACTIONS.

EPITOME OF CASES.

Sec. 678. Jurisdiction-Waiver of by parties. Where a court has no jurisdiction of an action to quiet title because the land is in possession of the defendant, jurisdiction cannot be conferred on it by consent of the parties. Robertson v. Wheeler, 162 111. 566 (44 N. E. Rep. 870). Want of jurisdiction over the cause cannot be waived by the parties. Collins v. Keller, 58 N. J. L. 429 (34 Atl. Rep. 753). In Missouri it is held that objection to the jurisdiction of the court on account of the real estate not being in the county is waived by appearance, answer and trial without objection. Lindell Real Estate Co. v. Lindell, 133 Mo. 386 (33 S. W. Rep. 466). It is held that where the jurisdiction of a court over the subject-matter affirmatively appears from the record and was not questioned in the lower court in any manner whatever, the

objection that the land was situated in another jurisdiction cannot be raised for the first time in an appellate court. The decision is put upon the ground that the appellate court can only consider questions of error which appear upon the record. Leavenworth Ter. Ry. & B. Co. v. Atchison, 137 Mo. 218 (37 S. W. Rep. 913).

Sec. 679. Jurisdiction-Title involved-How determined. Whether or not title is involved in an action so as to oust the jurisdiction of an inferior court must depend upon the facts which are pleaded, and not upon the allegations of the pleader expressing his opinion on that subject. Hamill v. Bank of Clear Creek Co., 22 Colo. 384 (45 Pac. Rep. 411). For the purpose of determining jurisdiction on appeal, in order that an action may be deemed to be one affecting the title to real property, or an interest therein, that must be its actual effect, in the sense that a judgment therein will determine or change title. Hill v. Board of Water and Sewer Com'rs, 150 N. Y. 547 (44 N. E. Rep. 1105). Citing, Norris v. Nesbit, 123 N. Y. 650 (25 N. E. Rep. 377); Trevett v Barnes, 110 N. Y. 500 (18 N. E. Rep. 257).

Sec. 680. Jurisdiction-As to when title is involved, For the purpose of determining jurisdiction an issue as to whether a wind mill is a fixture does not involve title to rea estate. Vaughn v. Grigsby, 8 Colo. App. 373 (46 Fac. Rep 624). Under the Missouri constitution, 1875, arts. 6, 12 declaring the appellate jurisdiction of the supreme court, it i held that actions to quiet title under the code of civil proced ure, § 2092,"involve title to real estate" and hence com within the final reviewing power of the supreme cour Northcutt v. Eager, 132 Mo. 265 (33 S. W. Rep. 1125). For the purpose of determining jurisdiction of a justice of the peace, it is held that an averment that the plaintiff is entitled to the possession of the premises and a denial of the same, puts title in issue. Grosso v. City of Lead, 9 S. Dak. 165 (68 N. W. Rep. 310). For the purpose of giving jurisdiction on an appeal, a freehold is not involved in the foreclosure of a mechanic's lien. Pearson Lum. Co. v. Brady, 159 Ill. 378 (42 N. E. Rep. 875). For the purpose of determining juris

diction on an appeal, the freehold is involved in the proceedings for the condemnation of the right of way for an elevated railroad. Metropolitan West Side El. R. Co. v. Siegel, 161 Ill. 638 (44 N. E. Rep. 276). A defense to an action for purchase-money that the grantor's title had failed, does not render the case one "respecting titles to land," so as to affect the question of jurisdiction. Black v. Fritz, 98 Ga. 32 (25 S. E. Rep. 188).

Sec. 681. Jurisdiction-State and federal courts. Where the controversy is one within the jurisdiction of both the state and federal courts, that court which first acquires jurisdiction will be allowed to retain it, free from any interference by the other, until final judgment is rendered and enforced by its process. Prugh v. Portsmouth Sav. Bank, 48 Neb. 414 (67 N. W. Rep. 309). The court say: "No general principle is better settled than a state court may not, by injunction, restrain proceedings in a federal court. * A reciprocal doctrine applies to the allowance of injunctions by the federal courts, interfering with the process of state courts; and while there is a federal statute applying to this situation, the federal decisions seem to regard this statute as declaratory, and simply expressive, of a general principle which would be applicable independently thereof. Missionary Soc. v. Hinman, 13 Fed. Rep. 161."

Sec. 682. Jurisdiction-Law of place. For the purpose of determining jurisdiction a contract is deemed to have been made at the place where it was finally delivered to the party claiming thereunder. Ivey v. Kern Co. Land Co., 115 Cal. 196 (46 Pac. Rep. 926). The Iowa statute providing that no action on a fire policy shall be begun within 90 days after service of written notice of loss, being merely remedial, has no extra territorial force. State Ins. Co. of Des Moines. Iowa v. Du Bois, Colo. App. (44 Pac. Rep. 756). A will devising real estate is governed by the lex loci rei sita. Fraxier v. Boggs, 37 Fla. 307 (20 So. Rep. 245). The right to subject real estate to the payment of a debt is determined by the law of the place where such real estate is situated. La Selle v. Woolery, 14 Wash. 70 (44 Pac. Rep. 115),

reversing La Selle v. Woolery, 11 Wash. St. 337 (39 Pac. Rep. 663; 32 L. R. A. 73; 54 Am. St. Rep. 855).

In

Sec. 683. Jurisdiction of particular courts. Georgia a justice's court has no jurisdiction of action for damages to realty. Bagley v. Columbus S. Ry. Co., 98 Ga. 626 (25 S. E. Rep. 638; 34 L. R. A. 286; 58 Am. St. Rep. 325). Del. Act March 26, 1869, construed-jurisdiction of orphans' court. Green v. Saulsbury, 6 Del. Ch. 371 (33 Atl. Rep. 623). The Indiana appellate court has no jurisdiction to determine an appeal from a decree establishing and foreclosing a vendor's lien. Upland Land Co. v. Ginn, 14 Ind. App. 431 (42 N. E. Rep. 1028). In Michigan a court commissioner has no jurisdiction of an action against a tenant to recover possession where the question of title is involved. Jenkinson v. Winans, 109 Mich. 524 (67 N. W. Rep. 549). A district court in Montana has jurisdiction of an action to quiet title brought by the holder of a tax deed after expiration of the period of redemption from the tax sale. Light v. Prussey, 18 Mont. 263 (44 Pac. Rep. 983). The obvious purpose of the constitutional and statutory limitations upon the powers of justices of the peace concerning actions on contracts for real estate is to exclude from the cognizance of such officers, proceedings involving a determination of the title or boundaries of land, and not to render inadmissible, in actions. within their jurisdictions, deeds, contracts, and other evidences of title. A county judge, in the exercise of the authority conferred upon him as a justice of the peace, has jurisdiction of actions to recover liquidated damages upon the failure of the defendant to convey real estate in accordance with the terms of the agreement which is the basis of such proceeding. Lorius v. Abbott, 49 Neb. 214 (68 N. W. Rep. 486). statute (N. J. Rev., p. 576, § 29), which gives a justice of the peace jurisdiction to take summary proceedings to eject a tenant for holding over after the expiration of his term, and after written demand and notice by his landlord, does not give him jurisdiction to remove a tenant for forfeiture on account of breach of condition in the lease. State v. Sinclair, N. J. L. (34 Atl. Rep. 943).

Sec. 684. Jurisdiction-County where action should be brought. An action of trespass for an injury to real estate must be brought in the county where the real estate is situated. Grace v. Cox, 16 Ind. App. 150 (44 N. E. Rep. 813). An action by a vendee to enforce a lien against the vendor who has rescinded the contract, may be brought in the county where the land is situated. Bullitt v. Eastern

Ky. Land Co., 99 Ky. 324 (36 S. W. Rep. 16). A complaint seeking specific performance and to have a lien declared on lands in controversy and for partition, is a local action and not transitory. State ex rel Collins v. Superior Court of Snohomish County, 13 Wash. St. 187 (43 Pac. Rep. 19). An action to recover the value of a growing crop destroyed by trespassing animals, involves a trespass to real estate and the jurisdiction is to be determined by the location of the premises. Keaton v. Snider, 14 Ind. App. 66 (42 N. E. Rep. 372).

Sec. 685. Jurisdiction-Land in another state. The force and effect of a judgment as affecting land in another state is limited to the parties over whom the court obtained jurisdiction; such decrees do not act upon the land but upon the parties. Blackman v. Wright, 96 Ia. 541 (65 N. W. Rep. 843). In Minnesota it is held by a divided court, that an action will lie in that state to recover damages for injuries to land situated in another state, although the General Statutes, 1894, §§ 5182 and 5183, provide that actions for injuries to real estate must be brought in the county where the subject of the action is situated. This decision is put upon the ground that an action for injury to land is personal in its nature and that the statute applies only to causes of action arising within the state. In an able dissenting opinion by Buck, Justice, the authorities are carefully collated and reviewed and the opposite doctrine strongly maintained. Little v. Chicago, St. P., M. & O. Ry. Co., 65 Minn. 48 (67 N. W. Rep. 846; 60 Am. St. Rep. 421; 33 L. R. A. 423).

Sec. 686. Jurisdiction-Nonresident parties-Lands affected. In Louisiana it is held that where real estate situated in that state forms the subject of partition among