Opinion of the Court.

charged of record, and that the title of the plaintiffs in and to said premises and every part thereof may be confirmed and established as against said defendants and each and every of them and all persons claiming through or under them," and for a writ of possession, damages, and costs.

That record also showed the issue and due service of citations to all the defendants except Dorsey and Hart; the issue of a citation directing the sheriff to serve Hart, being a citizen of Louisiana, by publication, and the sheriff's return showing the execution of the citation by such publication in a newspaper of the county four successive weeks before the return day; and a like service by publication on Dorsey, a citizen of New York.

That record further showed a default of all the defendants; and that upon a writ of inquiry the jury assessed damages against Dorsey and Hart; found as facts the issue of the patent to League and the title of the plaintiffs as his heirs, that Hart "claimed said land," and that a deed was made by Dorsey, and recorded, as alleged in the petition, but that Hart and Dorsey respectively had no title, of record or otherwise; and returned a verdict "for the plaintiffs, and that they recover the land described in the petition."

That record finally showed a judgment "that the plaintiffs recover of the defendants the premises described," and "that the several deeds in the plaintiffs' petition mentioned be, and the same are hereby, annulled and cancelled, and for naught held, and the cloud thereby removed," and for costs; and that execution issue for the costs.

The Circuit Court, against the plaintiff's objection, admitted the judgment in evidence, instructed the jury that it divested the plaintiff of his title to the land, and directed a verdict for the defendants.

The plaintiff, deriving his title under a deed with covenants of general warranty from League, is entitled to maintain this action against League's heirs, who are estopped by those covenants, unless the former judgment in the action brought by them in the State court has adjudicated the title as between them and the present plaintiff. It is therefore necessary to consider the nature and effect of that judgment.

Opinion of the Court.

The petition combined, in accordance with the practice prevailing in that State, an action in the nature of ejectment to recover possession of the land, and a suit in equity to remove a cloud upon the plaintiffs' title; and the service by publication was in the form authorized by the local statutes against nonresidents. 1 Paschal's Digest of Laws of Texas (4th ed.) art. 25.

The petition alleged that Wilkerson was in possession; and that the other defendants, except Hart, held recorded deeds, which were fraudulent and void, and cast a cloud upon the plaintiffs' title. But as to Hart, it did not allege that he was in possession, or was in privity with the other defendants, or that he held any deed, but only that he set up some pretended claim and title. And the verdict finds that he claimed the land, but had no title of record or otherwise therein. The judgment is that the plaintiffs recover the land of the defendants, and that the deeds mentioned in the petition be and are annulled and cancelled, and the cloud thereby removed, and for costs; and execution is awarded for costs only, and not for any writ or process in the nature of a writ of possession or habere facias.

It is difficult to see how any part of that judgment (except for costs) is applicable to Hart; for that part which is for recovery of possession certainly cannot apply to Hart, who was not in possession; and that part which removes the cloud upon the plaintiffs' title appears to be limited to the cloud created by the deeds mentioned in the petition, and the petition does not allege, and the verdict negatives, that Hart held any deed.

But if there is any judgment (except for costs) against Hart, it is, upon the most liberal construction, only a decree removing the cloud created by his pretended claim of title, and is no bar to the present action.

Generally, if not universally, equity jurisdiction is exercised in personam, and not in rem, and depends upon the control of the court over the parties, by reason of their presence or residence, and not upon the place where the land lies in regard to which relief is sought. Upon a bill for the removal of a cloud upon title, as upon a bill for the specific performance of an

Opinion of the Court.

agreement to convey, the decree, unless otherwise expressly provided by statute, is clearly not a judgment in rem, establishing a title in land, but operates in personam only, by restraining the defendant from asserting his claim, and directing him to deliver up his deed to be cancelled, or to execute a release to the plaintiff. Langdell Eq. Pl. (2d ed.) §§ 43, 184; Massie v. Watts, 6 Cranch, 148; Orton v. Smith, 18 How. 263; Vandever v. Freeman, 20 Tex. 334.

It would doubtless be within the power of the State in which the land lies to provide by statute that if the defendant is not found within the jurisdiction, or refuses to make or to cancel a deed, this should be done in his behalf by a trustee appointed by the court for that purpose. Felch v. Hooper, 119 Mass. 52; Ager v. Murray, 105 U. S. 126, 132. But in such a case, as in the ordinary exercise of its jurisdiction, a court of equity acts in personam, by compelling a deed to be executed or cancelled by or in behalf of the party. It has no inherent power, by the mere force of its decree, to annul a deed, or to establish a title.

In the judgment in question, no trustee to act in behalf of the defendant was appointed by the court, nor have we been referred to any statute authorizing such an appointment to be made. The utmost effect which can be attributed to the judgment, as against Hart, is that of an ordinary decree for the removal by him, as well as by the other defendants, of a cloud upon the plaintiff's title.

Such a decree, being in personam merely, can only be supported, against a person who is not a citizen or resident of the State in which it is rendered, by actual service upon him within its jurisdiction; and constructive service by publication in a newspaper is not sufficient. The courts of the State might perhaps feel bound to give effect to the service made as directed by its statutes. But no court deriving its authority from another government will recognize a merely constructive service as bringing the person within the jurisdiction of the court. The judgment would be allowed no force in the courts of any other State; and it is of no greater force, as against a citizen of another State, in a court of the United States, though

Opinion of the Court.

held within the State in which the judgment was rendered. Hollingsworth v. Barbour, 4 Pet. 466, 475; Boswell v. Otis, 9 How. 336; Bischoff v. Wethered, 9 Wall. 812; Knowles v. Gaslight Company, 19 Wall. 58; Pennoyer v. Neff, 95 U. S. 714. See also Schibsby v. Westenholtz, L. R. 6 Q. B. 155; The City of Mecca, 6 P. D. 106.

The Circuit Court having ruled and instructed the jury otherwise, its judgment must be reversed, and the case remanded with directions to set aside the verdict, and to order a New trial.

UNITED STATES, on the relation of Chandler, v. COUNTY COMMISSIONERS OF DODGE COUNTY.

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA.

Submitted January 4th, 1884.-Decided January 21st, 1884.

Internal Improvements-Municipal Bonds-Nebraska-Statutes-Tax. A wagon bridge across the Platte River is a work of internal improvement within the meaning of the statute of Nebraska of February 15th, 1869; and that statute makes it the duty of county commissioners to levy a tax on the taxable property within a precinct in whose behalf bonds have been issued under that statute to aid in constructing such a bridge, sufficient to pay the annual interest on the bonds, and without regard to any limit imposed by, or voted in accordance with chapter 9 of the Revised Statutes of 1866.

Petition for writ of mandamus; refused below, and brought up by writ of error.

Mr. William H. Munger for plaintiff in error.

Mr. J. T. Newton, Mr. Lewis A. Groff, and Mr. C. S. Montgomery for defendants in error.

MR. JUSTICE GRAY delivered the opinion of the court. This is a writ of error to reverse a judgment of the Circuit Court of the United States for the District of Nebraska, deny

Opinion of the Court.

ing a peremptory writ of mandamus to command the county commissioners of the county of Dodge, in the State of Nebraska, to levy a special tax upon the taxable property within Fremont Precinct, a local subdivision of that county, to pay and satisfy two judgments obtained by the petitioner against the county, in that court, upon interest coupons attached to bonds issued by the county commissioners in behalf of the precinct on September 1st, 1871, under the statute of Nebraska of February 15th, 1869, for the purpose of building a wagon bridge across the Platte River in that precinct, and purchased by the petitioner in good faith in the usual course of business, and without notice of any defects or infirmities; each of which judgments provided that they should be paid by such a levy.

To an alternative writ of mandamus, alleging the facts above stated, the county commissioners filed an answer, alleging that the bonds, which were signed and sealed by the county. commissioners, were in this form:

"UNITED STATES OF AMERICA, STATE OF NEBRASKA.

"It is hereby certified that Fremont Precinct, in the county of Dodge, in the State of Nebraska, is indebted unto the bearer in the sum of one thousand dollars, payable on or before twenty years after date, with interest at the rate of ten per cent. per annum from date. Interest payable annually on the presentation of the proper coupons hereunto annexed. Principal payable at the office of the county treasurer, in Fremont, Dodge County, Nebraska; interest payable at the Ocean National Bank, in the City of New York.

"This bond is one of a series issued in pursuance of and in accordance with a vote of the electors of said Fremont Precinct at a special election held on the eleventh day of November, A.D. 1870, at which time the following proposition was submitted:

"Shall the county commissioners of Dodge County, Nebraska, issue their special bonds on Fremont Precinct, in said county, to the amount not to exceed fifty thousand dollars, to be expended and appropriated by the county commissioners, or as much thereof as is necessary, in building a wagon bridge across Platte River, in said precinct; said bonds to be made pay