stated the .case, and delivered the opinion of the court.
No errors have been assigned either upon the record or in the briefs of counsel, as required by our Rule 21. For this *204 reason, we might very properly affirm the decree without looking into the record; but, as the case has been submitted and briefs filed on both sides, we will, without making this a precedent to justify such neglect of tffií salutary rule ’ in the future, proceed to the consideration of the points suggested by the counsel for the appellant in opposition to the decree.
1'. It is insisted, that as Thompson, was, at the time of the commencement of the suit, a citizen of Tennessee, and a necessary party, the court could not take jurisdiction of the cause; and in support of this objection, it is said, that, where there is a plurality of plaintiffs or defendants, each one must have the requisite character of citizenship to sue and be sued.
The question here presented cannot be one of practical importance in the future, as the act of March 3, 1875 (18 Stat. 470, sect.-1), has extended the jurisdiction of the circuit courts to controversies “between citizens of different States,” using for that purpose the very words of the' Constitution (art. 3, sect. 2), and thus avoiding the embarrassments that frequently arose under'the act of 1789 (1 Stat. 78, sect. 11), which limited their authority to controversies between “ a citizen of the' State where the suit is brought and a citizen of another State.” It is, therefore, sufficient to say, that, since the act of Feb.' 28, 1839 (5 Stat. 321, sect. 1), it has never been doubted that the circuit courts had jurisdiction of a suit in equity of a local nature, where a citizen of one State prosecuted citizens of other States, in a distridt where the property in controversy was situated, and of which one of the defendants was an inhabitant. If all the defendants were served .with process in the district, or voluntarily appeared'in the suit, the decree when passed would bind all: But if they were not served, of did not appear, and they were not indispensable parties, the case might proceed without them, and their interests would not be affected by what was done.in their absence. If, however, an indispensable party was a citizen of the same State with the plaintiff, the jurisdiction would be defeated; because the controversy would not be between citizens of: different States, and thus not within the judicial power of the United States as defined by the Constitution. The decisions to this effect ar.e numerous.
Hagan
v.
Walker,
’Here, Gallagher could sue both Thompson and Ober separately in the courts of the United States, and they could each sue him. The suit is of a local nature, its object being to subject lands in Arkansas to the. payment of a debt.' It must, therefore, be brought in the district where the property is situated. Ober is a citizen ' of that. State, and is the principal defendant. The relief demanded consists^in bringing his property to sale,' to pay a debt charged upon it. As to him, the court confessedly had jurisdiction. • Thompson,-though a citizen ,of Tennessee, was served with process in Arkansas; and this, under the provisions of the- act of 1839, -brought him into the case, and within the jurisdiction of the court.
2. As Fleming, the payee'of the notes secured by the lien, was, when the suit was commenced, a citizen of Tennessee, arid, consequently, incompetent to sue Thompson, also a- citizen of that State,, in the courts of the United States, it is claimed that Gallagher cannot maintain this suit.'
This objection is also based upon a clause -in sect. 11 of the Judiciary Act of 1789, repealed by the act of .March 3, 1875, which provides that no circuit court shall have cognizance of any suit to'recover .the. contents of a promissory note in favor of an assignee, unless a suit might have been prosecuted in such court to recover such-contents if no 'assignment had been-made. Under this act, it was held, in
Sheldon
v.
Sill,
The court had, therefore, jurisdiction of the suit as originally brought; and this jurisdiction was not defeated by the amendment which introduced the notes,, not in judgment, but secured by the lien, into the case. Having obtained rightful jurisdiction of the parties and the subject-matter of the action for one purpose, the court- will make its. jurisdiction effectual for complete relief. Story’s Eq. 64 Jc. ' If the amendment had not .been made, the court,would in its decree have taken care to protect the rights of the holders of the outstanding notes; and that is all it is called upon tó do by the amendment. Having jurisdiction for one purpose, it may be retained for all within-the general scope of the equities to be enforced.
3. Another, objection urged is, that the assignment of the n'otes by Fleming did not transfer .the lien he had reserved- as security for their payment.' It is undoubtedly true, that, in many of' the States, the implied lien which ^equity raises in favor of the vendor of real ’property to secure the payment of the purchase-money does not pass by an ’ assignment of the debt; but here the lien was not left to implication: it was expressly reserved. In fact, it is more than a lien. In .equity, it is a mortgage, so made by e'xpress contract. The acéeptance by Thompson of the deed containing the reservation, amounts to an express agreement on his part that the land should be
*207
held as security for the payment of what he .owed on account of the purchase-money'. This created an equitable mortgage; and such a security passes by an assignment of the debt it secures. We s.o held in
Batesville Institute
v.
Kauffman,
It is claimed, however,' that the law of Arkansas is different, and that the Supreme Court of that State has decided that a lien to secure the payment! of .purchase-money, expressly reserved by the vendor in his deed, does not pass by an assignment of the debt. ,If such was the settled rule of law in the State when the notes which are'under consideration in this case were assigned, we should be compelled to' recognize it as a rule of property there, and be governed'accordingly. .
Suydam
v.
Williamson,
“ The lien or equity held or possessed by the vendor of any real estate, for the sale of the same, shall inure to the benefit' of any assignee of the notes or obligation's given for the purchase money of such real estate, and such lien or equity shall be assignable, and payable by indorsement or otherwise in the han(ds of such assignee, and’any-such assignee may maintain' an action or suit,to enforce' the same :. Provided, the said lien or equity is expressed upon or appears from the face' of the deed of conveyance.” Bamphlet Laws, 1873; p. 217, sect. 28:
'This legislation was followed, at the December Term, 1873, by the case of
Campbell
v. Rankin,
4. It is finally insisted that Gallagher must exhaust his remedies at law before he can come into a court of equity to subject the land. This is not a creditor’s bill to reach equitable assets. There is no attempt to enforce the judgment as a judgment, but to reach securities held for the debt. The suit is in reality.one to-enforce a mortgage given to secure anote, but hot commenced until after the note had gone into judgment at law. The note was merged in the judgment: but the lien which secured it w;as not; that was simply transferred from the note to ..the judgment.
An election to sue at law upon a note secured by mortgage does pot make it necessary for the holder to exhaust his remedies in that 'forum before he can go into equity to enforce his. mortgage. He may. proceed at' law and "in equity at the same timé, and until actual, satisfaction of the debt has been obtained.
This disposes of all the questions presented in the demurrer,- and brings us to' a consideration of the cáse upon its facts. Without going into the .details of the evidence, it is sufficient to say, that we are entirely satisfied that English purchased the property in Pulaski County at the sheriff’s sale, for the benefit of Thompson.; that Thompson either furnished him the •money to pay the sheriff, or repaid him what he may have advanced within a short time thereafter; that the sale to Ober was made by Thompson to pay or secure a debt he owed; that English conveyed to Ober at the request of Thompson, and to •give effect to the arrangement he had made; that Ober, at the time óf his purchase, had full knowledge of all the facts, and that he took the title to the property incumbered, by the lien reserved in the deéd frota Fleming.
It follows that the decree of the Circuit Court was right, and it is, therefore, ' Affirmed.