incident to the present status of the case, is to be considered as a suit of one corporation against the other: 1 Morawetz on Corporations, secs. 256, 257, 271. The suit in Tennessee proceeded in the name of the corporation itself, and its main objects were the same as those sought to be attained in the Alabama suit, the cancellation of the leases of July, 1877, and December, 1879, and an accounting between the companies. The only relief insisted on in the domestic action, which was not prayed for in the foreign suit, was, that the Memphis and Charleston company be enjoined from the issuance and sale of the five million dollars of additional stock, authorized by a meeting of stockholders held in 1882. Even this relief, while it could not be specially prayed in the Tennessee suit, was necessarily involved and effectuated in that case, since this stock was to be issued and disposed of only for the specific purpose of providing a fund with which to pay the East Tennessee, Virginia, and Georgia company a bonus for a surrender of the leases; and the leases having been decreed void, and ordered canceled, there was no longer any authorization for the issuance of the additional stock, and no such action threatened. The parties and the issues, we therefore conclude, were substantially the same in the two cases; and it only remains to be considered, on this branch of the appeal, whether the Tennessee court had jurisdiction to render the decree which was set up as a bar to the further prosecution of this cause in the Madison chancery court. It is of course well settled with respect to courts acting within one and the same territorial jurisdiction, and administering the laws of the same sovereignty, that the first to take cognizance of a controversy, or the control and custody of the property, cannot be defeated of its right to proceed to a final determination of the dispute, or to a complete administration of the property by the subsequent interposition of another tribunal; but, on the contrary, the pendency of the first action, properly pleaded, will abate the second. It may be conceded that jurisdiction taken by the court of one state to hear and determine a controversy, accompanied by the assumption of custody of the subject-matter in litigation, may be pleaded in bar of a subsequent proceeding, not merely ancillary in its character, in a court of another state, or of the United States. But in each of the cases put, we apprehend the pendency of the former suit must be pleaded; and if not pleaded, and the court in which the later proceeding is instituted goes on to

judgment, that judgment will bar the further prosecution of the older suit.

On the other hand, while there has been some diversity of adjudications on the point, it may now be considered as settled in principle, and by the weight of authority, that the pendency of an action in the courts of one state cannot, except possibly in the case conceded above, be set up to defeat a subsequent action in a court of another state: Wells on Res Adjudicata, sec. 530; Story on Conflict of Laws, sec. 609, p. 832, note c; Hatch v. Spofford, 22 Conn. 493; 58 Am. Dec. 433; Percival v. Hickey, 18 Johns. 257; 9 Am. Dec. 210; Drake v. Brander, 8 Tex. 352; Brown v. Jay, 9 Johns. 221; Stanton v. Embry, 93 U. S. 554.

Assuming, what is not questioned, that the Tennessee court had jurisdiction, otherwise than as affected by the pendency of this case, of the parties to and subject-matter involved in the bill of the Memphis and Charleston company against the East Tennessee, Virginia, and Georgia company, it would be an anomaly to hold that it could not render a final decree between those parties because of the pendency of a case in Alabama between the same parties, and involving the same controversy, when the fact was never pleaded, and would have availed nothing if it had been pleaded, or to deny to its decree when rendered, pending the Alabama case, a tithe of the force and effect it would have had in the absence of the other suit. This decree is not attacked as fraudulent or collusive. If it had been fraudulent, or the result of collusion between the two corporations, it would, of course, exert no influence upon the litigation pending in the Madison chancery court. Its sole alleged infirmity, however, results from the fact that it was rendered on a bill filed after the bill in this case was exhibited. The objection is untenable. "The first judgment rendered controls, whether the action in which it is reached be instituted before the other or not; and the rule applies where the first judgment is rendered in another state": Wells on Res Adjudicata, sec. 292; Childs v. Powder Works, 45 N. H. 547; Duff v. Little, 5 Watts, 130; Casebeer v. Mowry, 55 Pa. St. 422; 93 Am. Dec. 766; McGilvray v. Avery, 30 Vt. 538; Wood v. Gamble, 11 Cush. 8; 59 Am. Dec. 135; Rodgers v. Odell, 39 N. H. 452; Stout v. Lye, 103 U. S. 70, 71. And the same rule prevails as to decrees: Lowe v. Mussey, 41 Ligon, 10 Yerg. 468.

Vt. 392; Peak v.

The gravamen of the bill in each case was the existence of

the void leases of the Memphis and Charleston company to the East Tennessee, Virginia, and Georgia company, possession and use by the latter of the former's property under these leases, and the indebtedness of the lessee to the lessor on account of such possession and use. The Tennessee decree determined each and all of these matters. It cancels the leases, it enforces a surrender of the property, and it settles the accounts between the parties. After that decree, there was no lease in existence to be upheld or annulled by our court; no property of one party, in the wrongful possession and enjoyment of the other, to be restored to its rightful control and. use; nothing due from the East Tennessee, Virginia, and Georgia company to the Memphis and Charleston company, to be decreed to be paid by the former to the latter. Complainant's cause of action had been destroyed by being merged into the decree of a competent court, and there was nothing left for the chancery court of Madison to act upon: Wells on Res Adjudicata, sec. 530; Barnes v. Gibbs, 31 N. J. Eq. 317; 86 Am. Dec. 210; Freeman on Judgments, secs. 215-221; North Bank v. Brown, 50 Me. 214; 79 Am. Dec. 609; Jones v. Jamison, 12 La. Ann. 35.

Our opinion therefore is, that the court below erred in decreeing cancellation of the lease and amended lease, in adjudging or finding that the parties had accounted between themselves, and in enjoining the Memphis and Charleston company from the issuance of the stock authorized in 1882. All of these matters had been expressly or necessarily settled by the Tennessee decree.

Unquestionably, however, the complainant, Grayson, had a good cause of action when he filed his bill. The answer which set up the foreign decree is therefore to be treated as a plea of puis darrien continuance; and the final disposition of this case, as to complainant's costs and reasonable expenses in the prosecution of his suit in behalf of the Memphis and Charleston corporation, should be had accordingly.

Reversed and remanded.

RAILROADS-LEASES BY. A railroad cannot lease its road to another company unless specially authorized by charter or aided by legislative authority: State v. Atchison etc. R. R. Co., 24 Neb. 143; 8 Am. St. Rep. 164. A railroad company cannot lease its road so as to absolve itself from its duties to the public without authority from the legislature: International etc. R. R. Co. v. Eckford, 71 Tex. 274; Railway v. Morris, 68 Id. 59; compare East Line etc. R'y Co. v. Culberson, 72 Id. 375; 13 Am. St. Rep. 805, and note.

ESTOPPEL TO DENY CORPORATE EXISTENCE by contracting with the corporation: Schloss v. Montgomery Tr. Co., 87 Ala. 111; '3 Am. St. Rep. 51, and note; compare Karns v. Olney, 80 Cal. 90; 13 Am. St. Rep. 101, and note.

FOREIGN JUDGMENTS. As to the effect and conclusiveness of foreign judgments: Note to Messier v. Amery, 1 Am. Dec. 324-326; note to Lazier v. Westcott, 82 Am. Dec. 413, 414; McLaren v. Kehler, 23 La. Ann. 80; 8 Am. Rep. 591; Brinkley v. Brinkley, 50 N. Y. 184; 10 Am. Rep. 460; Gunn v. Peakes, 36 Minn. 177; 1 Am. St. Rep. 661, and note. A judgment duly entered in the circuit court of Illinois, and duly transcripted to another state, is valid as a cause of action against a general demurrer: Nicholas v. Farwell, 24 Neb. 180.

GOODBAR, WHITE, AND COMPANY V. DANIEL.

EXECUTIONS

[88 ALABAMA, 583.]

REMEDY OF PURCHASER AT SHERIFF'S SALE AS AGAINST FRAUDULENT CONVEYANCE. A purchaser of the legal title to land at sheriff's sale has a plain and adequate remedy at law in ejectment, although the land has been fraudulently conveyed by the judgment debtor prior to sale, and he is not entitled to equitable relief; but when he acquires no title to the land at the sale, his only remedy, if he has any, is in equity. EXECUTIONS.-PURCHASER AT SHERIFF'S SALE BUYS AT HIS OWN RISK, and will not be relieved from the effect of his bid upon proof that the execution defendant had no title to the property sold. His bid is an irrevocable satisfaction of the judgment to the extent of the sum bid at the sale.

HUSBAND AND WIFE-NOTICE TO HUSBAND AS AGENT OF WIFE.-Notice of fraudulent facts avoiding a deed, acquired by a husband while acting as agent and trustee for his wife, in investing the proceeds of her separate estate, is constructive notice to her of such facts.

BILL in equity by plaintiffs and appellants, as partners and judgment creditors of J. B. Mackey, against J. M. Daniel and Myra J. Daniel, his wife, to set aside as fraudulent a conveyance of land to Mrs. Daniel by Mackey and wife; to have an account of the money invested by Mackey in the purchase of such land, and the amount thereof declared a lien on the land for the satisfaction of their judgment; to set aside a credit of $250 on their judgment, bid by them at sheriff's sale under their execution, on the ground that such bid was made under mistake and misapprehension of their rights. A demurrer was filed to the bill, on the ground that,-"3. It shows that complainants had an adequate remedy at law by ejectment." Another demurrer was filed, on the grounds,-"2 Because it does not aver any collusion or knowledge of any wrong or fraud on the part of Mrs. Myra J. Daniel"; "3. Be

cause the levy and sale of the land was a satisfaction pro tanto of the complainants' judgment and execution, which a court of equity cannot vacate"; "7. The complainants having purchased at their own sale, the doctrine of caveat emptor applies, and they cannot set aside their sale and purchase on the ground of mistake." Demurrer sustained, decree accordingly, and error is assigned thereon. The other facts are stated in the opinion.

Matthews and Daniel, for the appellants.

Walden and Son, for the appellees.

SOMERVILLE, J. The court, in sustaining the third ground of the first demurrer, ruled that the complainants, under the facts stated in the bill, had a plain and adequate remedy at law by the action of ejectment. This view can be supported only on the theory that when the complainants purchased the land in controversy at the sheriff's sale under the execution issued against J. B. Mackey on their judgment, they bought the legal title. We have many times held that a purchaser of the legal title to land sold under execution at a sheriff's sale has a plain and adequate remedy at law by ejectment, although the land had been fraudulently conveyed by the judgment debtor prior to such sale: Smith v. Cockrell, 66 Ala. 64; Teague v. Martin, 87 Ala. 500; 13 Am. St. Rep. 63. In this case, however, assuming the allegations of the bill to be true, as we must do on demurrer, Mackey never acquired the legal title to the land, but an equity only. One Pullen formerly owned the land, and conveyed it to Mrs. Mackey, the wife of said J. B. Mackey, the judgment debtor, her husband being alleged to have paid most of the purchase-money out of his own effects. Mackey and wife afterwards conveyed to Mrs. Myra J. Daniel, one of the defendants in the bill. One of the questions which arose in Smith v. Cockrell, 66 Ala. 64, was, whether precisely such an interest was subject to levy and sale under execution as a "perfect equity," within the meaning of section 3207 of the Code of 1876, which is now section 2892 of the present Code of 1886. We held that it was not subject to sale, and consequently, that the purchaser at such execution sale acquired no title of any kind, legal or equitable.

On the authority of that case, the complainants, under the facts stated in their bill, acquired no interest of any kind in