authorizes relief similar to that afforded by the preceding sections; and the Court of Appeals for the Seventh Circuit in Godkin v. Cohn, 25 C. C. A. 557, 80 Fed. 458, and the Supreme Court of Minnesota in Manuel v. Fabyanski, 44 Minn. 71, 46 N. W. 208, have applied its provisions to cases not unlike the one now before us.

It is suggested that the provisions of section 2372 are inapplicable to this case because a patent had once been issued to Goodall for the erroneous entry; but we think this fact is immaterial. The provision is couched in comprehensive and unlimited terms, fully covers all possible cases, and presumably means what it says. Its language is: "In all cases of an entry hereafter made," the Commissioner "is authorized to change the entry, and transfer the payment," etc.

This becomes more plainly apparent when the history of the enactment is considered. It originally formed a part of the act of May 24, 1824 (chapter 138, 4 Stat. 31). As then enacted it was limited in its application to cases where no patent had been issued for the erroneous entrv. But the Revision of 1878 studiously omitted that limitation, and left the statute to apply to all entries of land. The Revision struck out the fore part of the original act entirely, and eliminated from what remained all reference to the requirement that no patent should have issued for the erroneous entry.

Section 5596 of the Revised Statutes (U. S. Comp. St. 1901, p. 3750) relating to the Revision of 1878 is as follows:

"All acts of Congress passed prior to said first day of December one thousand eight hundred and seventy-three, any portion of which is embraced in any section of said Revision are hereby repealed and the section applicable thereto shall be in force in lieu thereof; all parts of such acts not contained in such Revision, having been repealed or superseded by subsequent acts, or not being general and permanent in their nature."

The language of the act just quoted is somewhat confused and indicates some carelessness in arrangement; but the section has been repeatedly construed, and its true import and meaning declared to be that if any portion of a particular act is embraced in any section of the Revised Statutes any parts of the same act not contained in the Revision must have been either repealed or superseded by other acts, or were not general or permanent in their nature. Waters v. Campbell, 4 Saw. 121, Fed. Cas. No. 17,264; In re Stupp, 12 Blatchf. 501, Fed. Cas. No. 13,563, United States v. Claflin, 14 Blatchf. 55, Fed. Cas. No. 14,799; United States v. Le Bris, 121 U. S. 278, 7 Sup. Ct. 894, 30 L. Ed. 946.

Inasmuch, therefore, as the act of 1824 originally excluded from its remedial operation cases where patents had issued, and as the revision in section 2372 eliminated the part making exception of such cases, it most obviously repealed the part so eliminated, and intentionally left it as it now stands, general and comprehensive covering all cases of mistaken entries, whether patents may or may not have issued.

Reference to original statutes frequently affords material aid in determining the meaning of their provisions when carried forward into the Revised Statutes, and they may be referred to for that purpose. United States v. Le Bris, supra. See, also, United States v.

Bowen, 100 U. S. 508, 518, 25 L. Ed. 631; Cambria Iron Co. v. Ashburn, 118 U. S. 54, 6 Sup. Ct. 929, 30 L. Ed. 60; Logan v. United States, 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429; United States v. Lacher, 134 U. S. 624, 10 Sup. Ct. 625, 33 L. Ed. 1080; The Conqueror, 166 U. S. 110, 122, 17 Sup. Ct. 510, 41 L. Ed. 937; Barrett v. United States, 169 U. S. 218, 227, 18 Sup. Ct. 327, 42 L. Ed. 723. Before closing this phase of the case we deem it appropriate to notice more particularly the contention that Le Marchal made his homestead entry with knowledge of the claims of Goodall's heirs. The proof in our opinion warrants no such contention. Le Marchal's correspondence with the Commissioner of the General Land Office is claimed to disclose such knowledge. But this is incorrect. Le Marchal's information derivable from the records of the local land office was untrustworthy and confusing. He may be constructively presumed to have known that the receiver's receipt and the tract book indicated that Goodall's entry was on the S. E. 14 in question; but he also should be credited with knowing that the patent certificate and the patent, best evidences of the truth, indicated to the contrary, and located Goodall's entry in another township. Not only so, but the land displayed no evidence of cultivation or use, and therefore carried no warning to him.

Some other facts presumably known by him apparently tended to confuse him. The plat book in the local land office showed that the S. W. 4 instead of the S. E. 14 had been entered by Goodall. Moreover, Le Marchal heard, pending his consideration of the question whether he should settle on the tract, that one Boyd claimed to have cash-entered it in 1879 and these facts were sufficient to suggest an investigation on his part before he expended his time and money in establishing a homestead. Accordingly correspondence followed with the Land Commissioner in which the facts were considered, resulting in the assurance twice told by the Commissioner, that the S. E. 1/4 in question was in fact just as the record disclosed-vacant public lands. We discover nothing in this to cast even a shade of suspicion upon the good faith of the homestead entry. It suggests only that reasonable caution which should attend the consideration and determination of important affairs.

The result is that the decision of the Secretary of the Interior authorizing the transfer of the mistaken entry to the homestead tract was in violation of the plain provisions of the law governing the matter, and therefore presents no obstacle to the relief sought by the bill. That decision was the defendant's main reliance and without it he has no defense.

The United States stood pledged by the statutes we have been considering to protect a homestead entry made in good faith against appropriation to correct any prior mistaken entry. Such had been declared to be a wise public policy and independent of the presumption attending the decision of the Secretary of the Interior, no one, we believe, would have had the hardihood to deny complainant's equity as against the defendant.

The next and only remaining question is whether the defendant. Tegarden is protected by a tax deed upon which he relied. The land

in question was assessed for taxation in the name of William Goodall and was nominally forfeited to the state of Arkansas for the nonpayment of taxes for the years 1896 and 1897. In 1901 the defendant availed himself of the privileges of section 4243 et seq. Mansfield's Digest, and made his application to purchase the land from the state. He paid $50 and secured a tax deed. This in our opinion does not aid him. Until the legal or equitable title to public land has passed out of the United States it remains subject to the control of the government and is beyond the power of the state to tax. Hussman v. Durham, 165 U. S. 144, 17 Sup. Ct. 253, 41 L. Ed. 664. It must be conceded that Goodall never got the legal title to the tract in controversy. He received a patent, but not for that tract. It is furthermore true that neither he nor his heirs ever acquired any equitable title to it; neither of them ever received a patent certificate for it, and, apart from the judgment of the Secretary of the Interior which we hold to be void and of no effect, neither of them ever had any equitable right whatever to it. If an equitable right to a tract intended to be entered, but which was not in fact entered, can prevail as against the United States, until the entry is duly corrected (which we find no occasion to decide), Goodall's equitable right would attach to the "N. E." 1⁄4 (and not to the "S. E." 1/4), that being the tract, as we have already stated, upon which he actually intended to make his entry.

The decree of the Circuit Court must be reversed and the cause remanded, with instructions to enter a decree for the complainant as specifically prayed for in his last amended bill filed June 8, 1905, and in harmony with the views here expressed.

BUCHANAN CO. v. ADKINS et al.

(Circuit Court of Appeals, Fourth Circuit. November 4, 1909.)

No. 860.

1. INJUNCTION (§ 38*)-NATURE AND GROUNDS-ACTIONS AND PROCEEDINGS IN AID OF WHICH INJUNCTION IS AUTHORIZED.

While, under certain circumstances, a complainant out of possession may be awarded an injunction preventing the destruction of the property, it should be in cases only where an action at law is either pending or contemplated and ancillary thereto so as to preserve the status quo. [Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 86-90; Dec. Dig. § 38.*]

2. QUIETING TITLE (§§ 10, 12*)-RIGHT OF ACTION-TITLE AND POSSESSION OF COMPLAINANT.

Only a complainant who has a clear legal title to land as well as its actual possession has the right to claim the aid of a court of equity to quiet his title, or remove a cloud therefrom.

[Ed. Note. For other cases, see Quieting Title, Cent. Dig. §§ 8-12, 36–42; Dec. Dig. §§ 10, 12.*

Necessity of possession in suits to quiet title, see note to Jackson v. Simmons, 39 C. C. A. 522.]

3. QUIETING TITLE (§ 4*)—JURISDICTION-ADEQUATE REMEDY AT LAW.

A federal court of equity is without jurisdiction of a suit by a complainant alleging title to a tract of land embracing 147,000 acres against For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

a large number of defendants, each of whom is alleged to claim title to a separate portion of such tract and to be in possession of the same, the greater number under color of title, and to have been so in possession for varying lengths of time not stated, the averred purpose of the suit being to determine the adverse claims of title and avoid separate actions at law which would afford a complete and adequate remedy in each case.

[Ed. Note. For other cases, see Quieting Title, Cent. Dig. § 6; Dec. Dig. § 4.*]

4. QUIETING TITLE (§ 5*)—Grounds of JURISDICTION-AVOIDANCE OF A MULTIPLICITY OF SUITS.

The claimant of a large tract of land, separate portions of which are in the possession of each of a large number of persons claiming title in various ways, cannot maintain a single suit in equity in a federal court against all of such adverse claimants to determine the question of title, on the ground of avoiding a multiplicity of actions at law, since, even if such suit could in any case be maintained, it would not obviate the necessity of trying the case of each defendant separately.

[Ed. Note. For other cases, see Quieting Title, Cent. Dig. § 13; Dec. Dig. § 5.*]

Appeal from the Circuit Court of the United States for the Western District of Virginia, at Abingdon.

Suit in equity by the Buchanan Company against Jane Adkins and 725 others. Decree dismissing bill on demurrer, and complainant appeals. Affirmed.

J. L. Jeffries and S. B. Avis (Jeffries & Lawless and W. H. Leonard on brief), for appellant.

William H. Werth and E. M. Fulton (A. S. Higginbotham, Chapman & Gillespie, J. H. Stinson, and Ayers & Fulton, on the brief), for appellees.

Before GOFF and PRITCHARD, Circuit Judges, and DAYTON, District Judge.

GOFF, Circuit Judge. The complainant, a corporation of the state of West Virginia, filed this bill against the defendants, 726 in number, citizens of the state of Virginia, alleging that complainant is the owner in fee simple of a tract of 146,10914 acres of land, in the county of Buchanan, state of Virginia, conveyed to it by W. L. Dennis, county clerk of that county, and C. W. Tebault and wife, by deed dated February 25, 1905, which gives the metes and bounds of the tract; that it was such part of a patent from the commonwealth of Virginia to Richard Smith and Henry Banks, dated November 16, 1795, for 200,000 acres, as was situated in the state of Virginia, the residue thereof being in the state of Kentucky; that the same by a regular, complete, and perfect chain of title, through a succession of conveyances, was acquired by Frederick Pearson, in whose name said land was duly assessed for taxes for the year 1876, and the succeeding years, including 1905; that, the taxes for the years 1876 to 1883 being delinquent and unpaid, the land was on the 12th day of October, 1886, sold for the taxes so unpaid, and was purchased by the state of Virginia, in the manner provided by the laws of that state; that pursuant to

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

section 666 of the Code of Virginia of 1904 C. W. Tebault filed his application for the purchase of the land with the clerk of the county court of Buchanan county, and having thereafter sold his interest therein, and his right to purchase the same to the Buchanan Company, the said W. L. Dennis, as county clerk, together with C. W. Tebault and wife, conveyed the same to complainant by the deed before mentioned; that the land when patented was and has continued to be wild and uncultivated, consisting of mountains covered with heavy and valuable timber, unfit for cultivation, except as hereafter mentioned, its chief value being the timber thereon, except possibly that coal may be discovered under the surface thereof; that each of the persons who owned the land under the patent and subsequent conveyances, constituting the chain of title under which complainant is the owner, beginning with the year 1822, took and held actual as well as constructive possession thereof, and exercised open, visible, and notorious acts of ownership upon the same, and employed agents and tenants residing thereon to take charge of it, and that complainant has, since it purchased the same, entered upon the land, taken possession of and appointed superintendents over it, and that complainant's possession extends to the boundaries thereof; that each of the defendants is seeking to assert some sort of claim to portions of the land, the character of which as to many of them is unknown to complainant, but it alleges that the title it holds to the same is superior to the right and title of each of such defendants as to a very large part of the land, if not as to all of it; that many years after the land had been acquired by those through whom it passed to Pearson, and in many cases after he had become the owner and was in possession thereof, and in other cases, after the state of Virginia had purchased the same, the defendants, or those under whom they claim, entered upon portions of said land, made small clearings thereon and lived upon them, occupying for that purpose only a few acres; that some of them have obtained junior patents from the state for tracts of land located within complainant's boundary; that others have secured pretended statutory court rights for certain small parcels, while others have no color of title whatever, and are mere squatters; that many others have received and placed upon record deeds and conveyances from persons who had illegally entered upon said land.

Complainant further alleged that, as it acquired title to all of the land mentioned through said single deed and chain of title, its right as against each and all of the defendants arises from a common source, and is common between it and each and all of them; that, as it is in actual as well as constructive possession of the land, no one of the defendants can, or does, hold possession of any part thereof beyond the portion actually occupied by him or her; that those who acquired court rights did so unlawfully, not being in actual occupancy of any part of the land, or they obtained the same for tracts largely in excess of what they in fact actually occupied, thus acquiring the same by fraud and false testimony, and that, therefore, the aid of a court of equity will be necessary to investigate and set aside such claims; that in the year 1885 the clerk's office of Buchanan county with all of its records was destroyed by fire, and that since that time