Epitomized Opinion

One Sturgeon purchased, at bankruptcy sale, certain real estate in Tuscarawas county, Ohio, subject to certain purported liens thereon which included a mortgage by the bankrupt to the Chicago Trust Company as trustees. Sturgeon entered into possession of the premises by virtue of this purchase and thereafter began suit in the Common Pleas Court of Tuscarawas county to quiet title. The two mortgage trustees, as well as other lien holders, were made parties defendant. The petition set forth that the mortgage was void and as the mortgage trustees were non-resident. Service was acquired by publication. The mortgáge trustees demurred to the petition and also answered asserting the validity of the trust mortgage. During the penancy of this suit to quiet title in the state court and áfter the appearance of the mortgage trustees therein, but before answer was filed, the trustees and beneficiaries began suit in the U. S. District Court at Cleveland in equity for a foreclosure -of the mortgage, making Sturgeon and his grantee parties defendant. A motion was filed by Sturgeon to stay proceedings in the foreclosure suit until the final determination of the suit in the state court was filed and denied. The Brick & Tile company, Sturgeon’s grantee, then answered, asserting the complete invalidity of the mortgage, and set up in bar of the foreclosure suit priority of jurisdiction over the subject matter acquired by the state court in the then pending suit to quiet title. The foreclosure suit was heard in the federal court and a decree of foreclosure and sale made. Sturgeon and other then appealed from this decree to the U. S. Circuit Court. In reversing the judgment of the district court, it was held:

1. The pendency in a federal court of an action in personam is not ground for abating a subsequent action in a state court or vice versa, each court being at liberty to proceed to final judgment, such judgment first rendered being binding on both parties; but where the action is one in rem, that court, -whether state or federal, which first acquires jurisdiction over the res has exclusive authority to control and dispose of it.

2. As a suit to quiet title is an action in rem, the state court acquires exclusive jurisdiction and during its pendency the federal court has no jurisdiction to entertain a suit to foreclose a mortgage on the same land.

3. In a suit in Ohio to quiet title as agr-'nst a mortgage the state court has jurisdiction in the same case to subject the land to payment of the mortgage, if found valid by foreclosure and sale.