Ill. 328 (64 N. E. Rep. 1076). See opinion for construction of statutes as to proper practice where action involving a freehold is erroneously appealed to the appellate court. Kan. Laws 1895, ch. 96, § 14 construed and applied-jurisdiction of supreme court of. actions involving title. Tarr v. Abrams, 64 Kan. 887 (68 Pac. Rep. 605). A suit to enforce a mechanic's lien does not involve "title to real estate" so as to give the supreme court jurisdiction of an appeal, under Mo. Const., art. 6, § 12, although there was a side issue of who was the owner, in order to determine whether notice was given the proper person. Such court has jurisdiction under the provision referred to only when the judgment itself affects the title to land. P. M. Bruner Granitoid Co. v. Klein, 170 Mo. 225 (70 S. W. Rep. 687). An action to set aside conveyances of land made by a debtor to a third person and by him to the debtor's wife, as a fraud upon the creditors of such debtor, involves title to real estate so as to give the supreme court of Missouri appellate jurisdiction. Balz v. Nelson, 171 Mo. 682 (72 S. W. Rep. 527). But the contrary is held as to a suit by a creditor of a woman to have the title to property, which her children had devested out of her on the ground of a resulting trust in their favor, deemed to be in her as to him on account of his having made a loan to her on the faith of its being in her name. Klingelhoefer v. Smith, 171 Mo. 455 (71 S. W. Rep. 1008). In North Carolina a justice of the peace has no jurisdiction of an action of ejectment by a mortgagee against a mortgagor in possession, where title to realty is involved, notwithstanding an allegation that the mortgagor is a tenant of the mortgagee. Smith v. Garris, 131 N. C. 34 (42 S. E. Rep. 445). Construing and applying Vt. Stat., § 1040, denying justices of the peace jurisdiction of actions of trespass involving title, where the damage claimed exceeds twenty dollars, it is held that upon appeal in such an action in which the damage claimed did not. exceed twenty dollars, an amendment increasing the claim for damages from twenty to one hundred dollars deprives the appellate court of jurisdiction. An action for trespass for cutting down growing trees involves title. Heath v. Robinson, 75 Vt. 133 (53 Atl. Rep. 995).

Sec. 588. Jurisdiction of courts of equity. Equity has no jurisdiction of an action in ejectment, and such an action. is stated by a bill alleging that plaintiffs have the title to and right to possession of land and are kept out of possession by

the defendants who claim title, although an accounting is asked and an injunction requiring the defendants to vacate is prayed for, such demand for equitable relief being premature. Williams v. Fowler, 201 Pa. St. 336 (50 Atl. Rep. 969). A court of equity decreeing for a plaintiff claiming title to real estate, the cancellation of certain instruments affecting such title, on account of the insanity of the grantor executing them, cannot put him in possession by the issuance of a writ of assistance, but, as to possession, he will be left to his remedy at law. Clay v. Hammond, 199 Ill. 370 (65 N. E. Rep. 352; 93 Am. St. Rep. 146; See pp. 154-165 for exhaustive note on "Jurisdiction of equity to put party in possession in aid of its decree").

Sec. 589. Jurisdiction-When determined by residence of party or location of land. An action to compel specific performance of an agreement to convey land, if the defendant's obligation is in contract, merely, without any element of trust, is an action in personam, and must be brought in the county where the defendant resides, and not of necessity in the county where the land is situated. Close v. Wheaton, 65 Kan. 830 (70 Pac. Rep. 891). An action for the cancellation of mortgages on account of their having been procured by fraud is transitory and need not be brought where the land lies, but the jurisdiction is in the county of the defendant's residence; and this rule is not changed by Ky. Stat., § 11. Shouse v. Taylor, Ky. (72 S. W. Rep. 324; 24 Ky. Law Rep. 1842). The jurisidction of an action against the sureties on a sheriff's bond for a trespass committed by his deputy, to which neither the sheriff nor such deputy is made a party, is in the county of the residence of the bondsmen, and not where the trespass was committed; Tex. Rev. Stat., art. 1194, subd. 9, requiring an action for trespass to be brought in the county where the trespass was committed, applying only when the action is against the trespasser individually. Lasater v. Waits, 95 Tex. 553 (68 S. W. Rep. 500). A judgment constituting a lien on land, even after levy of execution thereunder, does not give the holder any estate, right or interest in the land, so as to require an action for the vacation of the same to be brought where the land lies, under Minn. Gen. Stat., 1894, $$ 5182, 5183. State v. District Court of Chippewa Co., 85 Minn. 283 (88 N. W. Rep. 755). Where the parties agree that a bond given for a part of the purhcase price of land shall be enforced out of a par

ticular tract of land, the court in the county where such tract lies has jurisdiction of an action for the enforcement of the bond. N. C. Code, § 190 (3) applied. Connor v. Dillard, 129 N. C. 50 (39 S. E. Rep. 641).

Sec. 590. Stare decisis-Overruled cases. A rule of property is not established by a decision of the supreme court construing the provisions concerning the exemption of property from taxes contained in the charter of a seminary, which were unlike those contained in any other seminary charter; so as to make the rule of stare decisis applicable to prevent the overruling of such decision. Colorado Seminary v. Board of Com'rs, 30 Colo. 507 (71 Pac. Rep. 410). An overruled decision is regarded not law, as never having been the law, but the law as given in the later case is regarded as having been the law, even at the date of the erroneous decision. To this rule there is one exception,-that where there is a statute, and a decision giving it a certain construction, and there is a contract valid under such construction, the later decision does not retroact so as to invalidate such contract. Falconer v. Simmons, 51 W. Va. 172 (41 S. E. Rep. 193).

Sec. 591. Former adjudication-Who bound by. An adjudication against a husband's claim of homestead in land made by him in litigation involving this right is conclusive against his wife although she was not a party. Frazier v. Brashears, (Ky.) 66 S. W. Rep. 1038; 23 Ky. Law Rep. 2232. A creditor of an heir seeking to establish a lien upon the heir's undivided interest in lands of his ancestor is bound by a previous judicial ascertainment by a court of competent jurisdiction as to an advancement made to such heir, and takes subject thereto. Comer v. Shehee, 129 Ala. 588 (30 So. Rep. 95; 87 Am. St. Rep. 78). A default judgment entered by publication service against the "Farmers' Loan & Trust Company," purporting to bar the lien of a mortgage assigned of record to the "Farmers' Loan & Trust Co., trustee" is not binding upon the "Farmers' Loan & Trust Company, trustee." Farmers' Loan & Trust Co. v. Essex, 66 Kan. 100 (71 Pac. Rep. 268). No alienee, grantee, assignee, or mortgagee is bound or affected by a judgment or decree rendered in a suit commenced by or against the alienor, assignor, or mortgagor subsequent to the alienation, grant, assignment, or mortgage, to which he is not a party. Austin v. Hoxsie, Fla. (32 So. Rep. 878).

A contingent interest in real estate is bound by a judgment in an action to quiet the title thereto where the court has before it all the parties that can be brought before it, and it acts on the property according to the rights that appear, there being no fraud or collusion. Mathews v. Lightner, 85 Minn. 333 (88 N. W. Rep. 992; 89 Am. St. Rep. 558).

Sec. 592. Former adjudication-Judgment against tenant by third party-When binds landlord. A judgment in favor of the plaintiff in an action of ejectment, rendered against a tenant in possession, does not bind his landlord, where he was neither a party to the action nor had any notice thereof. Sanford v. Tanner, 114 Ga. 1005 (41 S. E. Rep. 668). The court say: "It is claimed that a judgment in ejectment against a tenant, even where the real owner of the land was not a party to, had no notice of, and took no part in the proceedings in such a case, is binding on such real owner; but in our opinion this contention is not sound. In 1 Freem. Judm. § 185, the rule is thus stated: 'If the landlord did not participate in the defense, and was not notified of the pendency of the previous action, the judgment rendered therein is not admissible against him for any purpose except to show the fact of its recovery, and that the defendant therein had ceased to hold as his tenant.' In the case of Read v. Allen, 58 Tex. 380, it was ruled that ‘a judgment against a tenant rendered in a cause to which his landlord is not a party, and of which he had no notice, can not affect the landlord's title.' Rulings in the following cases are also to the same affect: Chant v. Reynolds, 49 Cal. 213; Stridde v. Saroni, 21 Wis. 175; Brant v. Church, 110 N. Y. 537 (18 N. E. Rep. 357); Oetgen v. Ross, 47 Ill. 142 (95 Am. Dec. 468); Powers v. Scholtens, 79 Mich. 299 (44 N. W. Rep. 613)."

cases.

Sec. 593. Former adjudication-Particular Where a contractor conveyed certain property and thereafter contracted with his vendee to erect houses thereon, proceedings brought by others to foreclose mechanic's liens are not res adjudicata as against such claimants or others having like claims made defendants, as to the ownership of the property as between the vendor and vendee. Shryock v. Hensel, 95 Md. 614 (53 Atl. Rep. 412). A judgment appropriating land, rendered in condemnation proceedings to which the owner was made a party and who accepts the damages awarded him, is

conclusive as to the constitutionality of the statute under which the appropriation was made, as against a person holding title under such owner. Conn. Laws 1867, ch. 137; Gen. Stat. 1866, tit. 37, ch. 4, construed and applied. Branch v. Lewrenz, 75 Conn. 319 (53 Atl. Rep. 658). In an action of ejectment based on a trust deed, a prior decree rendered in a chancery suit between the same parties adjudging that a certain sum was due on account of the debt secured, is admissible to prove a breach, notwithstanding a writ of error has been prosecuted, and a supersedeas granted. Brown v. Schintz, 203 Ill. 136 (67 N. E. Rep. 767). A former recovery against a municipal corporation in a suit for damages sustained by a property owner by reason of its maintenance of a nuisance is no bar to a second action brought by him with a view to recovering compensation for damages subsequently arising from the same cause, unless the recovery in the first suit was for prospective damages, as well as for such as had actually been suffered up to the time of the bringing thereof. Mulligan v. City Council of Augusta, 115 Ga. 337 (41 S. E. Rep. 604). An adjudication in an action of ejectment between tenants in common, that the defendant owned a certain undivided interest, and the plaintiffs the balance, does not bar him from claiming, in partition proceedings afterwards brought by them against him, an undivided interest with them under an after-acquired title from one not a party to the action in ejectment or the partition proceedings. Carter v. White, 131 N. C. 14 (42 S. E. Rep. 442). A judgment in an action brought to recover land claimed under a residuary clause in a deed does not bar another action by the same plaintiffs against the same defendants to recover the land on account of a mistake in the deed. Davidson v. Mayhew, 169 Mo. 258 (68 S. W. Rep. 1031). A judgment in favor of a vendor foreclosing his vendee's equity for failure to make payments and adjudging a forfeiture of payments made and that the vendor had fully complied with his contract, bars an action by the vendee to rescind the contract and recover the payments made. Bingham v. Kearney, 136 Cal. 175 (68 Pac. Rep. 597). Where a bankrupt acquires an interest in property as an heir of his sister after a sale of all his interest in the property by his assignee in bankruptcy, an order of the United States district court denying his motion to set aside the assignee's sale on the ground that he had no interest in the property at the time he was adjudged a bankrupt, is not res adjudicata of the question as to whether he or his sister was owner