between the parties hereto that the term of this lease shall be for the period of two years beginning the 1st day of July, 1906; provided, however, that if for any reason said party of the first part shall be unable or shall refuse on said 1st day of July to deliver to the said second party herein possession of said properties, as contemplated in this lease, then, and in that case, such delay in delivery of possession shall not work an abridgment in the term of this lease, but shall operate merely to defer the date of its commencement until such date as possession may be delivered as aforesaid. The said lessor covenants and agrees to use all reasonable endeavor and legal means to put the lessee in possession of the premises above described on said 1st day of July, 1906, or as soon thereafter as possible;" that the lessor also agreed that it would not interfere with possession by the lessee as contemplated by the lease.

Plaintiff alleges that the lease was recorded in Nome on June 21, 1906, and that it has been in force ever since the execution and delivery of the same; that about June 10, 1905, at Manchester,. N. H., one E. W. Spurr purported to execute, under the seal of the Corson Gold Mining Company, and as its president, a certain lease between the said Corson Gold Mining Company, defendant herein, and one Judson T. Webster, also a defendant herein; that this lease was for the same properties involved in this action; that Spurr had no authority to execute or deliver such a lease; that Webster, the lessee named therein, refused to accept the lease as drawn, signed by Spurr, or to act in accordance with the terms thereof; that between the time Webster received the lease in June, 1905, and March 16, 1906, Webster, without the consent or knowledge of the Corson Gold Mining Company, made material alterations in the lease; that Webster affixed his signature to the duplicates of the purported lease; that between September 25 and December 15, 1905, Webster sent one of the duplicates of the said purported lease, so altered by him, to an agent of his in Nome, together with a sublease from himself (Webster) to Thomas M. Gibson, a defendant herein; that the sublease covered the mining claims involved herein, together with certain other properties, and included an assignment from Webster to the said Gibson of the purported lease to the said Webster of the properties embraced in the sublease; that about December 8, 1905, Webster sent back one of the duplicate copies of the said purported lease, so altered and signed by him, to the attorney of the Corson Gold Mining Company at Manchester, with the request that the company consent to and ratify the alterations made by him in the purported lease, saying that he could not accept the said lease unless said changes therein were made, but that on December 12th the stockholders of the Corson Company considered the changes and the request of Webster, repudiated the transactions had by Spurr with Webster, and withdrew all offers of a lease to him, and notified Webster about December 13, 1905; that notwithstanding these things, Webster at some time between September 25, 1905, and March 16, 1906, delivered to the said defendant Gibson the duplicate of the said pretended lease, and the sublease and assignment, and Gibson put the same on record on March 16, 1906; and that all these things were done without the consent or knowledge of the Corson Gold Mining Company, or its officers or successors; that the defendant Gibson and the defendants Waskey and Harding, claiming an interest with Gibson, by force of transfer by him under the said purport 1 lease, and the said sublease, entered upon the mining properties involved, in May, 1906, claiming the right to do so by virtue of the said unauthorized and fraudulent lease, and the said sublease and assignment, and began working upon the claims, and were working upon them when this action was brought, and had taken from them large quantities of gold. Plaintiff alleges that since July 1, 1906, when the terms of his said lease began, he has tried to enter peaceably upon the properties embraced in his lease, and has demanded possession thereof from Gibson, Waskey, and Harding, who were occupying and working the same, but that they refused to surrender possession, or to permit him to enter for the purposes of his said lease, or for any purpose; that the co-tenant Gray is not in possession exclusively or adversely to plaintiff or to plaintiff's lessor, nor is he mining the properties, and he does not oppose entry and mining by plaintiff; that defendants Gibson, Waskey, and Harding are accountable for all gold taken from the mining claims since July 1, 1906, or that may be taken

therefrom by them hereafter, prior to the termination of plaintiff's lease, but plaintiff, not having access, cannot ascertain the true amount of gold that has been taken; and that the defendants last named have no right of claim or possession to the said mining properties other than the void and pretended lease. It is then alleged that the defendant Willey, prior to the making of the lease to the plaintiff Johnston by the defendant Universal Mining Company, was the controlling stockholder of said corporation, and alone conducted on its part the negotiations which resulted in the making of the lease to plaintiff, and assented to the same, but that at the time of the commencement of this suit he was publicly stating that plaintiff's lease was of no validity, and that, by dealings between himself, as president of the Universal Mining Company, and himself individually, he has obtained a deed of conveyance from the company to himself individually of all of the mining claims embraced in the lease to this plaintiff Johnston, and that this deed was made without authorization by the stockholders or directors, and that if it is put on record, it will operate to cloud and embarrass plaintiff's title to his leasehold interest in the said mining property; that since July 1, 1906, when the term of the plaintiff's lease began, plaintiff has demanded of Willey, as president of the corporation, that the company and Willey, as president, put him in peaceable possession of the mining properties, in fulfillment of the covenants of the lease; but that Willey has failed to take any steps to that end, but is combining with the defendants Gibson, Waskey, and Harding to leave them in the possession and enjoyment of the properties under the alleged void lease to the defendant Webster; that the record of the void lease to Webster, and Webster's sublease and assignment to Gibson, constitute a cloud upon plaintiff's title to his leasehold interest; that the defendants are not responsible financially for the value of the gold taken or to be taken; that the occupation by Gibson, Waskey, and Harding, and the taking of gold from the claims, and the exclusion of plaintiff therefrom, constitute great and irreparable injury, for which plaintiff has no adequate remedy at law; that plaintiff at great expense prepared to mine the claims from and after July 1, 1906; that the open working season is a brief one; and if the defendants shall be left in possession the claims may be wholly worked out before final decree can be obtained; and that plaintiff will be put to great additional expense unless he can enter upon and operate the claims under his lease. Plaintiff asks for a decree in his favor, adjudging that the Universal Mining Company, when it made and delivered its lease to plaintiff, was the owner of the legal possessory title to the properties described in the lease; and that on July 1, 1906, he became lawfully entitled to the possession of the properties in co-tenancy with Gray; and that the pretended lease from the defendant Corson Gold Mining Company to Webster was not authorized, and was materially altered prior to delivery without the consent of the Corson Gold Mining Company, and was and is null and void; that the defendants Webster, Gibson, Waskey, and Harding have no right under said pretended lease to the possession of the said properties, and that they have never acquired any rights by any lease or sublease, or assignment, but that the said instruments are clouds upon plaintiff's title to his leasehold interest. Cancellation of the alleged pretended lease to the defendant Webster, and the sublease thereunder, and the partial assignment to Gibson, is prayed for, and a decree is asked enjoining Gibson, Waskey, and Harding from continuing to occupy the claims, and from extracting gold therefrom, and compelling them to surrender possession to plaintiff, and requiring them to account for gold extracted; and that defendant Willey be restrained from disparaging plaintiff's title, and that he may deliver into court deeds, purporting to convey from the Universal Mining Company to himself the said mining property; and that, until final decree, restraining order be issued.

A temporary restraining order was issued, and a motion for preliminary injunction was heard. The plaintiff filed several affidavits tending to substantiate the allegations of his complaint. The defendants also filed affidavits denying plaintiff's allegations as to title, and setting forth that they had been in possession since March, 1906, and had redeemed the property from a foreclosure at an expense of $10,000, and thereafter had spent large sums upon it; and that they claimed title and possession in good faith. The defendants Gibson, Waskey, and Harding filed a demurrer to the application for an injunction,

on the ground that plaintiff did not state a cause of equitable cognizance as against them. The demurrer was sustained, and injunction pendente lite was denied, for the reason that the plaintiff was not entitled to relief in equity. The bill was dismissed as against appellees, without prejudice to maintenance by plaintiff of an action at law.

Thomas R. Shepard, Shepard & Flett, and W. H. Flett, for appellant.

Charles S. Wheeler, J. F. Bowie, Gordon Hall, and Albert Fink, for appellees.

Before GILBERT and ROSS, Circuit Judges, and HUNT, District Judge.

HUNT, District Judge (after stating the facts as above). The important question is whether plaintiff had a plain, adequate, and complete remedy at law. If he had, then the lower court properly refused to entertain his bill as one entitling him to equitable relief, at least until after he had instituted his legal action. We have plaintiff, a lessee out of possession, knowing that defendants, third persons, were in possession, mining the property involved, and claiming right of possession, now suing in equity to establish title, to acquire possession, to cancel an instrument and remove a cloud, for an accounting, and for injunction to prevent further mining. The complaint sets forth facts which, being taken to be true, show appellees to be naked trespassers-that is, that they went upon and hold possession of the property without title, legal or equitable, in themselves or their predecessors, while plaintiff shows that he is a lessee of the owners of both legal and equitable title, and that his right of possession began on July 1, 1906, but that he has been wrongfully excluded from the property by these appellees. The contract under which plaintiff claims. was an executed lease, containing among others this clause:

"Witnesseth: That for and in consideration of the rents, royalties, covenants, and agreements to be paid and performed by the said party of the second part, the said party of the first part has agreed to lease, demise, and let, and does hereby lease. demise, and let, to the said party of the second part all its right, title, and interest in and to the properties and mining claims hereinafter specifically described."

The proviso (heretofore quoted in the statement preceding this opinion), assured the enjoyment of the property by plaintiff for the full period of two years, but it did not change the character of the conveyance by making it an executory, rather than an executed, contract. A lease to commence in futuro is grantable. Whitney v. Allaire, 1 N. Y. 305; Becar v. Flues, 64 N. Y. 518. The lessee acquired an interest in the term, which he could assign, and for which he could maintain ejectment without any further act upon his part, if possession was withheld after his right of entry became complete. If the plaintiff's lessor had been in possession on July 1, 1906, and for any reason had refused to surrender possession to plaintiff, such refusal would not have operated to defer plaintiff's right of possession, notwithstanding plaintiff's enjoyment might have been postponed, and his term of two years might not have begun until after he obtained actual possession. This construction of the lease is reasonable, and appears to be in har

mony with the whole instrument, for in another part thereof the lessor covenanted and agreed with the lessee that he would use all reasonable endeavor and legal means to put the lessee in possession "on said 1st day of July, 1906, or as soon thereafter as possible." Any doubt upon this point, however, has been resolved by the pleading of plaintiff, which is framed upon the theory that plaintiff's right of possession accrued July 1st. He claims not under an agreement for a lease, but under an existing lease, and he asks for mesne profits from July 1, 1906-profits to which he would have no claim unless his right of possession accrued at that specified date.

The estate of plaintiff as a lessee could only have been perfected by his entry, but after July 1, 1906, which was the date alleged by plaintiff for the commencement of the term, his interest as lessee was such that, though not in actual possession, still he had a present interest in the term, and could maintain ejectment. Wood's Landlord & Tenant, p. 266; Tyler on Ejectment, pp. 75, 77; Van Rensselaer v. Slingerland, 26 N. Y. 580; Adams' Equity, p. 217. In Trull v. Granger, 8 N. Y. 115, the right of possession in præsenti was held to be all that was necessary to maintain ejectment, and an entry is not necessary. And in Gardner v. Keteltas, 3 Hill (N. Y.) 332, 38 Am. Dec. 637, it was held that ejectment would lie by a lessee before entry against a stranger in possession, and wrongfully withholding from plaintiff. Plaintiff being out of possession with a right of action in ejectment, his remedy was complete and adequate against those in possession, it being indisputable that ancillary suit could be brought upon the equitable side of the court to restrain waste or destruction of the estate, pending the hearing and determination of the action at law. Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. 560, 28 L. Ed. 1113; Id., 113 U. S. 537, 5 Sup. Ct. 565, 28 L. Ed. 1116.

Where there is a legal title, and one who holds it is kept out of possession by defendants holding adversely, the remedy is at law to recover possession. "Equity in such cases has no jurisdiction, unless its aid is required to remove obstacles which prevent a successful resort to an action in ejectment, or when, after repeated actions at law, its jurisdiction is invoked to prevent a multiplicity of suits, or there are other specific equitable grounds of relief." United States v. Wilson, 118 U. S. 86, 6 Sup. Ct. 991, 30 L. Ed. 110; Harland v. Bankers et al. (C. C.) 32 Fed. 305.

Plaintiff doubts whether ejectment would lie, saying that "it is very questionable whether if plaintiff should attempt to proceed in ejectment he would be able to maintain his action." That ejectment ordinarily affords ample remedy to recover mesne profits cannot be disputed; that it affords ample remedy to recover possession cannot be disputed; and that damages can be recovered in ejectment is also certain. His doubts must therefore rest upon the apprehension that in this particular case the law cannot give him all the relief he needs, because, in addition to the several kinds of relief just enumerated, he must have a decree of cancellation of the fraudulent and altered lease to Webster, and a decree of removal of the cloud created thereby upon his title, and because he must have injunction from further trespass in operating the property. It is this full relief that he prays,

seeking to justify his prayer upon the ground that, where equity takes jurisdiction, it will give such full relief, whether legal or equitable, as to all matters relating to the subject-matter of the bill, even though relief is granted in matters which would not have been the subject of equitable interposition, had they alone been the original subjects of the relief sought. Plaintiff has cited decisions holding that a bill to remove a cloud will lie, though plaintiff is out of possession, where his legal remedy is not adequate, and that ejectment is an inadequate remedy in all cases where, although plaintiff might recover possession, a void instrument or muniment of title would be left outstanding and uncanceled. Bunce v. Gallagher, 5 Blatchf. 48, Fed. Cas. No. 2,133, and Sayers v. Burkhardt, 85 Fed. 246, 29 C. C. A. 137, decided by the federal courts, are construed to sustain this proposition. The latter was a case where the object of the suit was to remove a cloud, and to set aside as fraudulent certain proceedings had in a state court, and to declare the same null and void. But the weight of decision by the federal courts is against the doctrine that appellant relies upon, in that it is well established that, where plaintiff is not in possession, and defendant is, a suit to quiet title is not within the jurisdiction of a court of equity, where other relief as well is sought. And this is true, even though a number of additional reliefs are prayed for, part of which may be included within the jurisdiction of equity. Smyth v. N. O., C. & B. Co., 141 U. S. 656, 12 Sup. Ct. 113, 35 L. Ed. 891, cited in the opinions of many courts, is a leading case. Complainant there went into equity, asking that his title be adjudged valid, and for possession, and for rents and profits. In the bill it was alleged that certain proceedings taken by the land department of the government were invalid, and that because of the invalidity of the proceedings, complainant's right was not defeated or impaired. The prayer also asked that complainant might be declared to be the owner, and put in possession of the premises described, and have an accounting for rents and profits. An examination of the brief for the appellant in that case shows that it was forcibly urged upon the court that the bill should be maintained in equity, because there was not an adequate remedy at law, and because fraud was charged which prevented complainant from completing his title to a portion of the lands, and that a multiplicity of suits would be necessary, and that his title was threatened, and that it was the province of a court of equity to stop these acts, investigate the frauds, compel an accounting, and that equity alone could afford adequate relief. But Justice Field, for the court, said that notwithstanding the statements of the bill respecting the alleged illegal and fraudulent use of certain ancient. grants, and the alleged illegal proceedings of the department, the bill averred possession by complainant of a legal title. Continuing, he said:

"Whether that title can be enforced against other claimants will depend of course upon the validity of the ancient grants produced, and of the proceed ings by which Louisiana is alleged to have acquired the property. That can be shown in an action at law, as well as in a suit in equity."

It was further held that the allegations as to the illegality of the action of the land department, and the fraudulent proceedings of the