The parties concur in the conclusion, though upon different grounds, that so much of the decree as relates to the note of $4500, shall remain undisturbed. The agreement made in 1851, therefore, and all rights and liabilities arising under it, may be determined without further notice.
Nor is the case ready for hearing in this court, except as to the question of‘the investment of the $2000 in the Eerry *77Property, all the other matters in controversy being at the time of appeal in the hands of the referee. We are, then, to inquire whether the decree as to the Eerry Property, or the trust fund is correct, and this inquiry, we are compelled to answer in the negative. Our reasons for this conclusion we will state briefly. t
And, in the first place, it was improper under the proceedings to give the relief granted to the respondents. They filed no bill, nor arc any of their answers made cross-bills. The most and all they could ask, was that they might be dismissed the court. If they had any relief to ask or discovery to pray for, they should have done so by bill, or by making their answer a cross-bill. Compten v. Comer 4 Iowa 577; Armstrong v. Pierson, 8 Iowa 29; Siverly v. State, Dec. T. 1858.
In the second place, it seems to us that this question was adjudicated between these parties in the New-York case, and so long as that judgment remains in force it must be conclusive. It will be observed from the statement of the cause that the bill of Anne G. and her infant children, as filed in New-York, prayed the same relief based upon the same facts as are set up in the answers of Alexander and others in this case. That action was commenced in the Supreme Court of Saratoga County, heard upon full testimony and submitted to a referee. Upon the coming in of his report it was ordered and adjudged that no portion of the trust fund created by the last will and testament of Gregor MacGregor, deceased, mentioned in the complaint in this action, created for the benefit of the plaintiffs and others, has ever been transmitted to, or invested in land in the State of Iowa, and that the said fund is now in the hands of said Duncan MacGregor and •fames MacGregor, Jr., trustees; and it is further ordered and adjudged that the plaintiffs are not entitled to judgment that James MacGregor, Jr., release all right to the property in Iowa mentioned in the complaint.
Complainants appealed to the General Term of the Supreme Court, and there the judgment was, after argument, *78affirmed.in all respects. The cause was then taken to the Court of Appeals, and there the appeal was dismissed. The property mentioned in the complaint filed in that case covered that known as the Ferry Property in this.
It is insisted that the judgment rendered in New York does not conclude the parties for the reason that the courts of the State had no jurisdiction of the subject matter involved in this controversy; that the lands being in this State, the courts of New York could do nothing as to the title to such lands. The rule upon this subject, as stated in Massie v. Watts, 6 Cranch 148, is, that in cases of fraud, of trust or of contract, the jurisdiction of a court of chancery is sustainable wherever the person may be found, although lands not within the jurisdiction may be affected by the decree. When the ease, however, involves a naked question of title, the courts of a State other than that where land is situated, cannot sustain their jurisdiction. “But when the question changes its character, when the defendant is liable to the plaintiff either in consequence of contract, or as a trustee, or as the holder, of a legal title acquired by any species of malafides practiced on the plaintiff, the principles of equity give a court jurisdiction wherever the person may be found, and the circumstance that a question of title may be involved in the inquiry and may even constitute the essential point on which the case depends, does not seem sufficient to arrest that jurisdiction. Massie v. Watts, supra. See also the authorities there cited. Earl of Kildare v. Fitzgerald, 1 Vern. 419; Arylasse v. Muschamp, Ib. 135; and 2 Story’s Eq. Jur. 744-'5; Story’s Conflict of Laws, 544-’45; Penn v. Lord Baltimore, 1 Vesey 444; Sturtevant v. Pike, 1 Carter’s Ind. 277 ; Story’s Eq. Pl. 489; McLean v. Lafayette Bank, 3 McLean, 622.
The jurisdiction is sustained upon the principle that in all cases in equity the primary deeree is in personam and not in rem, and that in these cases peculiarly the courts • having authority to act upon the person may make decrees not binding the land itself, but the conscience of the party in *79regard to the land, and compel him to perform his contract, execute his trust, or answer for the fraud according to conscience and good faith. In a case for the specific perform- ' anee of a contract to convey lands, for instance, if the lands lie within the reach of the process of the court, courts of equity instead of relying exclusively on the proceedings in pcrnonavi, will act upon the thing or property also, and put the successful party in possession, if the other party refuses to comply with the decree. But, says McLean, J., while a decree cannot operate as a conveyance of land out of the State, as it does under the statute within the State, yet this is a matter which does not affect the jurisdiction. Having jurisdiction of the parties by a voluntary appearance, the court may decide the controversy between them, and effect may be given to the decree as the law shall authorize. 8 McLean, 522.
The case in 1 Carter, 277, was this: Gage was the son-in-law of Col. Zebulon Pike, and had from his father-in-law, a power of attorney to sell certain lands in Ohio. The attorney deeded them to one R. and immediately received a re-conveyance of the same to himself, adopting this as a mode of acquiring the legal title. After Col. Pike’s death his heirs filed a bill in the Dearborn Circuit Court in Indiana, asking among other things that the conveyance to Gage might be set aside, and that he be required to relinquish to the heirs the lands embraced therein. Gage answered, admitting the conveyance as charged, but said that Col. Pike was indebted to him in a sum exceeding the value of the lands, and that he adopted the transaction complained of as a mode of obtaining payment. Gage was required to relinquish to the heirs, and Perkins, J., in' delivering the opinion says: “The land, the principal subject matter of this suit, lies in Ohio, out, of course, of the jurisdiction of the courts of this State, but as the defendant interested in the controversy was brought directly before the Circuit Court, it was authorized, as a court of equity, to take cognizance of the cause under *80•the general rule that courts of equity act upon the person.”
The case of Massie v. Watts'was this: Watts brought his suit in equity in the Circuit Court of the United States for the District of Kentucky, against Massie, a citizen of that State, to compel him to convey one thousand acres of land in the state of Ohio, the defendant having the legal title with notice of the plaintiff's equity. An objection was made to the jurisdiction of the court. In delivering the opinion, Marshall, 0. J., after reviewing the facts, says: “If we reason by analogy, from the distinctions between actions local and transitory at common law, this action would follow the person because it would be founded on an implied contract or on a neglect of duty. If wo reason from these principles which are laid down in the books relative to the jurisdiction of the courts of equity, the jurisdiction of the Court of Kentucky is equally sustainable, because the defendant, if liable, is either, liable under his contract or as a trustee.”
Upon the authority of these cases and the others before cited, we think it clear that the court of New York had jurisdiction, and that the judgment entered must bind the parties as also the courts of this State. It was charged by the complainants in that case that the trust fund had been transferred to Iowa with the consent and knowledge of the trustees, and invested in certain lands, and the prayer was that the Gardners should be declared to hold the said lands upon the terms set out in the deed of Alexander to George D., and that the trustees under the will of Gregor, should release all right to said property. Dy reference to the transaction between Alexander and George D. Gardner it appears that Gardner held the lands conveyed to him in trust as follows : These tracts (the Ferry Property,) for the use of Anne G. during life, and to the use of the children of the said Anne G. and Alexander after her death, in accordance with the provisions of a will of Gregor MacGregor, and an agreement (in respect certain trust funds) of said James and Duncan MacGregor, the trustees appointed by said will — and a fourth tract for the use of Alexander, for whose use the same had *81been before held by James, now when it is remembered that the Supreme Court of New York found against the complainants in that case upon every material point made in the bill, and denied the relief asked, it would seem that argument was unnecessary to show the binding effect of that judgment upon the parties to the litigation; the parties are the same, the issues are the same, and having been once settled by the judgment of a -court of competent jurisdiction, we have no disposition, if we had the power, to re-open the controversy for another, or further examination.
But, in the third place, treating it as res integra, we are satisfied upon the facts that the judgment in New York was-right, and such as the court below should have rendered. There can be no ground for misconceiving the intention of the devisor in bequeathing the $2000 to the trustees, and not the least difficulty in understanding their duty. Neither the brother nor his wife had any right to touch or use the principal sum, the interest or income was hers during life— after the death of both the children if any were to receive the principal and any interest still remaining in the hands of the trustees. This $2000 was to be invested in bond and mortgage, upon unincumbered real estate, and to be kept invested in this manner during the period that they were to pay over the income, or until the principal was required to be paid over to the children or next of kin. Now it must be plain to the comprehension of any person, that the trustees would violate the duties devolving upon them by virtue of the provis-. ions of tins will, to invest the trust fund in the purchase of lands instead of in bonds and mortgages upon unencumbered real estate. It was perfectly competent for the devisor to direct ■ how this money should be used, and to determine what kind of an investment would be most advantageous to the beneficiaries. Having accepted the trust, the trustees were bound to execute it in the manner pointed out in the will; and it ' was not for them to say whether the mode adopted by the devisor for securing this fund to the recipients was wise or unwise, just or unjust. If they could buy lands, so they could *82personal property, speculate in stocks, or invest the fund in any other manner to suit their own notions of what would be most to the advantage of the cestue que trust. No such discretion or power was given to them however.
Viewing the question then singly in this aspect there could of course be no ground for claiming that these lands were, in the language of the decree in the court below, “ the fund of $2000 described in the seventh clause of the will of Gregor MacGregor.” The claim is, however, that if the trust fund Was actually invested in real estate, (in this case the Ferry Property) the beneficiaries may follow it and claim the benefit of the new investment, or the estate purchased; and there is no controversy as to the rule upon this subject. If money held by trustees is invested in any other property into which it can be traced, the beneficiary may elect to follow the same into the investment thus made, or he may treat and hold the trustees personally responsible for a breach of duty. This principle, however, though ever so just and well settled, has no application to this case. It has no application for two reasons:
The first is, that respondents fail to show that the Ferry Property was purchased with the trust money. That it was thus purchased is afiirmed by them and denied under oath by complainant.
We need not say, therefore, that it is the duty of respondents to satisfy the court of the truth of this averment. They affirm, and they must therefore prove. The testimony upon this part of the case is quite voluminous. To refer to it in detail would unreasonably and unnecessarily extend the length of this opinion. We state therefore, that the impression made upon our minds after reading the immense mass of testimony contained in the record, and the conclusion to which we have arrived is, that the trust fund never was in fact transferred. We are satisfied that complainant contemplated making the transfer, and that Duncan supposed it had been made. This intention, however, was never executed or carried into effect. The money, if invested any where, remains in New York. *83Such was the conclusion of the courts of that State, and of its correctness there can be no fair room for doubt.
But, in the second place; the rule referred to has no application because the respondents have no right to elect to follow the trust fund (if it was invested as claimed,) into these lands. It was the capitalsand not the income, that it is insisted was thus invested. This capital, as we have seen, belongs not to Alexander nor to Anne Gr., but to the residuary legatees. Who these may be cannot now be known. They are the persons however, that have the right of election, and not those who are entitled to the income for life. It is true that the children of Alexander are respondents and may be treated as electing to follow the fund or capital into the lands. They may not survive their parents however, or if they do, other children may be born having an equal right to an election. Indeed it seems to us that the proposition is an exceedingly clear one, that the right of election is in the remainderman and not in those taking the income, and that until it is known who the residuary legatee is the power of election does not exist.
While therefore, we are by no means prepared to sanction the conduct of complainant, in every respect, touching the transaction developed in this case, we feel no hesitation in concluding that the decree below is unsustained by the testimony and should be reversed.
Decree reversed.