Page:Federal Reporter, 1st Series, Volume 3.djvu/458

 miBBABD V. BEIiliEV. 451 �defendant in the foreclosure suit on the contract wîih Bellew, he'may have been compelled, in order to protect his rights in the premises, to have filed a cross-bill for the enforcement of his lien. But, not being made a party to that suit, he is in no way precluded by the judgment, and being a non-resident he had the constitutional right to bring his action to foreclose his lien in this court, free from any danger of having his case dismissed, or the proceedings stayed, on aecount of an action involving the same controversy which might be subsequently brought in a court of concurrent jurisdiction. �The case brought by the defendants in the state court in 1880 can scarcely be considered as a continuation of the for- mer suit. The defendants are wholly different. In the for- mer suit Bellew was sole defendant. In this Hubbard, with three subsequent encumbrancers, and Bellew are the defend- ants. The purpose of the suit is also diiïerent, though it respects a small parcel of the same land described in the con- tract which the former suit was brought to foreclose. The former suit was for a specifie performance of the contract, and a strict foreclosure of Bellew's right under it, on aecount of a failure on his part to perform its covenants; the latter, though professedly to foreclose Hubbard's rights under Bel- lew, was to extend the decree against Bellew to Hubbard. The effect will be to raise a controversy of a very different nature, and which could only be properly presented by a cross-bill, filed by Hubbard, setting up his mortgage claim against the defendants upon one forty of the land. �Such a claim as Hubbard makes in the case could iaot properly be litigated in a suit on the contract, the purpose of which was to compel a specifie performance by Bellew, or, upon default thereof, to foreclose his interest under the con- tract, and the interest of ail others holding under him and Bubject to the defendants' title. �Clearly, I think, on the facts presented, the latter suit is not a continuation of the former, in any such sense as would, under the rule of oomity observed between the state and federal courts when having concurrent" jurisdiction, draw to it the exclusive jurisdiction of the controversy. ����