Page:Federal Reporter, 1st Series, Volume 3.djvu/457

 450 FEDEBAIi EKPOKTBa. �court of Wisconsin, and the Ju^gment affirmed at the Augusl term, 1878, and a remitter filed in the circuit court in No- vember, 1878, and final judgment rendered thereon in May, 1879. �The present suit was commeneed by Hubbard in tliîs court, and the bill filed on March 7, 1879, to enforce his lien against the mill property for the advances so made by him. On May 27, 1880, the defendants, John J. Marsh and others, owners of the land, began an action in the circuit court of St. Croix county, making Hubbard, the complainant in this case, and three other persons, as subsequent encumbrancers of the mill forty nnder Belle-w, defendants, to foreclose their liens upon the property, and to extend the decree against them formerly rendered in the same court in the suit for strict foreclosure against Bellew. �And the question is, provided the controversies are the same, ■which court first obtained jurisdiction of the subject-matter of the controversy ? for, if the state court first obtained juris- diction of the property, and the subject-matter of the contro- versy, and the controversies are the same, this court will stay the proceedings here until the case pending in the state court can be determined. And it is contended by the defend- ants' counsel that the state court did, by virtue of the suit brought in 1877, obtain such jurisdiction, and that the suit brought in May, 1880, 14 months after the suit in this court was begun, is but a continuation of the first suit. I am unable to concur in this view. �Hubbard's claim, if sound, is not derived solely from Bel- lew, as the second party to the contract of sale, and subject to the defendants' title, butis paramount in equity, not only to Bellew's interest under the contract, but to the defendants* title, and is equivalent to a first mortgage lien upon the mi-U property from the defendants themselves. It constitutes the foundation for an affirmative cause of action, demanding and entitling the defendant to affirmative relief. It is founded partly on the written contract, and partly upon independant fwt». Neverthelesa, it may be true, that, by making him a ����