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defendants in bringing forward the pretended ancient grants, were entirely unnecessary to the maintenance of the action, as the facts upon which title to the premises rested could be readily shown in an action at law. It was said that all the facts and questions necessary to determine the right to the property could be considered and disposed of in a single action at law, and allegations of fraudulent proceedings, respecting the acquisition of the title, did not convert the action at law into a suit in equity. Boston & Montana Min. Co. v. Mont. Ore. Pur. Co., 188 U. S. 632, 23 Sup. Ct. 434, 47 L. Ed. 626.

In McGuire v. Pensacola City Co. et al., 105 Fed. 677, 44 C. C. A. 670 (1901), the Court of Appeals of the Fifth Circuit dismissed a bill, where the plaintiff sued in equity, praying for an injunction to restrain defendants from interfering with certain lands, or committing trespass thereon, for a receiver, for an account as to rents and profits; that the title be quieted; and that a tract of land be decreed to belong to plaintiff, together with rents and profits. The decision was that there was nothing alleged to confer jurisdiction, although the bill showed that the complainant had a legal title to the land, and that defendants had obtained possession by force, and were in possession. It was held that if the defendants were trespassers they could be joined as defendants in an action in ejectment, and that the equitable jurisdiction would not be interposed to prevent a multiplicity of suits, as each defendant had a right to submit his claim of title and right to possession to a jury. It was also argued that the court had jurisdiction in equity to inquire into the allegations made of conspiracy, fraud and violence. But the court said:

"The fact that the defendants conspired to obtain possession of the land, or committed frauds and violence to obtain possession, the complainant having the legal title and the right to possession, does not confer jurisdiction in equity of a suit to recover the lands. These wrongs on the part of the defendants do not prevent the plaintiff from recovering the lands at law in ejectment. Such averments in a bill to recover real estate and its rents, brought by a plaintiff out of possession, and having the legal title against defendants in possession, do not confer jurisdiction in equity. Smyth v. Banking Co., 141 U. S. 656, 660, 661, 12 Sup. Ct. 113, 35 L. Ed. 891. The arerments that the defendants hold the lands under void judgments are without effect as conferring jurisdiction, because the judgments could as well be held void at law. Smythe v. Banking Co. (C. C.) 34 Fed. 825; Lewis F. Cocks, 23 Wall. 466, 469, 23 L. Ed. 70."

To the contention that the court had jurisdiction to quiet title from the cloud resting upon the land by the acts of the defendants, the court replied that it was well settled "that a plaintiff not in possession, having the legal title, cannot maintain a bill against defendants who are in possession to remove cloud from title.”'

In Hanley v. Coal Co. (C. C.) 110 Fed. 62 (1901), the relief sought was a decree establishing a right and title of plaintiff to the possession and use of lands, that a trustee be appointed to carry into effect a last will and testament, that an accounting be had, and for judgment and general relief. Judge Rogers decided that a court of equity will not take jurisdiction, at the instance of a plaintiff out of possession, to determine as between such plaintiff asserting title and a defendant in possession claiming adversely the simple and naked questions of who holds the legal title to the land or the right to the possession thereof. He continued :

"Nor is authority required to show that in such a case as that the equity jurisdiction of the federal court would not attach because facts are stated in the bill which, in a proper case, would give the court jurisdiction, on the ground of an account between the parties, for the reason that an accounting depends upon the title or right to possession, and the jurisdiction to try the title is in a court of law. Rev. St. U. S. § 723, [U. S. Comp. St. 1901, p. 583] article 7 of the Constitution of the United States. See, also, cases cited in volume 2 of the notes of Gould & Tucker to Rev. St. U. S. § 723. Nor can the equity jurisdiction of a federal court attach to quiet title in favor of a plaintiff who is either out of possession or has not acquired the legal title, as against a defendant in possession asserting adverse title. Frost v. Spitley, 121 U. S. 552, 7 Sup. Ct. 1129, 30 L. Ed. 1010; Dick v. Foraker, 155 U. S. 404, 15 Sup. Ct. 124, 39 L. Ed. 201; Adoue v. Strahan (C. C.) 97 Fed. 691."

In Bearden et al. v. Benner (C. C.) 120 Fed. 690 (1903), the prayer was that complainants' title be decreed and confirmed, that a certain deed be decided to have only conveyed a life estate, that, if necessary, the deed be corrected and reformed, and thus a cloud be removed from complainants' title; that an account be had, and an order of sale be made, and that the proceeds be paid over to complainants; and that a preliminary injunction issue restraining defendant from selling or incumbering the interests claimed by the complainants. The court treated the bill as one showing that the possession of the land in dispute was held adversely to complainants, and under a claim of title to the fee in defendant. Jurisdiction was denied, the rule being upheld that “those only who have a clear legal and equitable title to land connected with possession have any right to claim the interference of a court of equity, to give them peace or dissipate a cloud on the title.” Jurisdiction was also refused, notwithstanding the alleged necessity for an accounting; the court quoting from the leading case of Hipp v. Babin, 19 How. 271, 15 L. Éd. 633, where Justice Campbell, for the Supreme Court, laid down the rule that, when a party has a right to a possession which he can enforce at law, his right to the rents and profits is also a legal right, and must be enforced in the same jurisdiction. Furthermore, Judge Speer held that although the bill might have been maintained under the practice of the state of Georgia, yet that the courts of the United States, being controlled by the Constitution and the acts of Congress, cannot deprive a person of his right to a trial by jury in an action at law.

In United States Mining Co. v. Lawson et al. (C. C.) 115 Fed. 1005 (1902), Judge Marshall very clearly reviews the principal cases bearing upon the question under consideration. That was a bill brought for an injunction to restrain defendants from working on plaintiff's mining claim, and that the title of the plaintiff be quieted. The action was looked upon by the learned judge as maintainable under the statutes of the state of Utah, but, after reference to the seventh amendment to the Constitution of the United States, and to section 723 of the Revised Statutes, providing that suits in equity shall not be sustained in the federal courts where a plain, adequate, and complete remedy at law may be had, it was pointed out that there was no averment that the plaintiff was in possession, but that it appeared that the title

of the plaintiff was a legal one, and that if defendants were in possession the property could be recovered, and the title could be determined in an action of ejectment. The court said:

"It is a familiar rule that, where a part of the relief to which plaintiff is entitled is equitable, a court of equity, having jurisdiction for this purpose, will ordinarily assume jurisdiction of the entire case, and grant both the legal and equitable relief that the case demands. It is no less well settled that the right to an injunction to prevent the continuance of a wrong may be a sufficient equitable incident to give a court of equity jurisdiction of what would otherwise be a legal action. Root v. Railroad Co., 105 U. S. 207, 26 L. Ed. 975; Jesus College v. Bloom, 3 Atk. 262; 1 Pom. Eq. Jur. & 236. To have this effect, however, the equitable relief must be something more than simply in aid of a legal action or during its pendency. Courts of equity do not usually undertake to try disputed legal titles to land. American Dock & Improvement Co. v. Trustees for Public Schools, 37 N. J. Eq. 266. And before a plaintiff is entitled to a permanent injunction restraining the violation of a commonlaw right, he must ordinarily establish this right at law. Coke Co. v. Broadbent, 7 H. L. Cas. 601, 606. In the federal courts, at least, it is common practice to proceed in equity for an injunction to preserve real property pending legal proceedings for the determination of the title. Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. 560, 28 L. Ed. 2113; Waterloo Min. Co. v. Doe, 82 Fed. 45, 27 C. C. A. 50; St. Louis Min. & Mill. Co. of Montana v. Montana Min. Co. (C. C.) 58 Fed. 129 ; Stevens v. Williams, 5 Morr. Min. Rep. 449."

Decisions within this circuit are to the same effect. In Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 Fed. 4, 50 C. C. A. 79, 61 L. R. A. 230 (1901), the prayer was for a temporary injunction restraining defendants from boring wells and removing oil, and for a decree that complainant had full, complete, and equitable title to the premises involved, that a receiver be appointed, and that adverse claims of defendants be adjudged without right. This court held that the circuit court had no jurisdiction to try the title to the property, or to judge the complainant to be entitled to the possession thereof. The cases of Whitehead v. Shattuck, 138 U. S. 146, 11 Sup. Ct. 276, 34 L. Ed. 873, and Black v. Jackson, 177 U. S. 349, 20 Sup. Ct. 648, 44 L. Ed. 801, were quoted from, to sustain the general rule that equity will not proceed to determine title or right of possession to lands brought by one who is out of possession against a claimant in possession. Davidson v. Calkins (C. C.) 92 Fed. 230, wherein Judge Wellborn ably reviews the decisions of the Supreme Court, was cited with approval. Cal. Oil & Gas. Co. of Ariz. v. Miller et al. (C. C.) 96 Fed. 12.

In Morrison v. Marker (C. C.) 93 Fed. 692 (1899), a decree was asked adjudging a deed to be fraudulent and void, and that it be canceled, that complainant be adjudged to have a good and valid title, and that the title of complainant be quieted. Judge Morrow, sitting in the Circuit Court, decided that there was not a case stated within the equity jurisdiction of the court, and quoted with approval from Frost v. Spitley, 121 U. S. 552, 7 Sup. Ct. 1129, 30 L. Ed. 1010, where it was held that a person out of possession cannot maintain a bill to remove a cloud upon title, and to quiet the possession of real estate, whether his title is legal or equitable, for if his title is legal, his remedy is by action of ejectment, and, if equitable, he must acquire the legal title, and then bring ejectment.

In Northern Pacific Railroad Company v. Amacker, 49 Fed. 529, 1 C. C. A. 345, this court again sustained the general rules as heretofore stated. That was a suit seeking a decree declaring that defendants had no estate in certain lands claimed by the complainant, that the title of the complainant was good, and praying that the defendants be enjoined from asserting claim to the lands, adverse to the complainant. Equity jurisdiction was denied. To like effect is Southern Pacific Railway Co. v. Goodrich (C. C.) 57 Fed. 879 (1893).

Similar questions were also involved in Empire State, Idaho M. & D. Co. v. Bunker Hill S. M. & C. Co., 121 Fed. 973, 58 C. C. A. 311 (1903). Bill in equity was brought by the Empire State Company to quiet title to a certain mining claim. The controversy related to extralateral rights. It was contended that possession of the property did not appear to be in the appellee, but the bill alleged that the appellee was in possession of all of the lode or vein, which extended beyond a certain plane, and within vertical planes of projected end lines. The court expressly regarded that as an averment of possession of all that part of the lode which was in controversy, and, when the point of possession was settled, proceeded to show that a trespass and threat to continue to extract ore were alleged, wherefore it was held equity would intervene.

Among the decisions by courts of the states, that of Mary Ann Long's Appeal, 92 Pa. 171, bears closely upon the case under consideration. There the subjects of the bill in equity were leasehold estates. Fraud and conspiracy were set up, and nine kinds of relief were asked, including injunction, accounting, and that the interests claimed by plaintiff be declared his. The court held the case as properly in ejectment, looking upon it as one where plaintiff was really seeking to establish his title against defendant in possession. “Her title,” said the court, "may be worthless, but she has possession, and until he proves, by an action at law, that he has the right to that possession by virtue of good title, she cannot be disturbed. Haggin v. Kelly, 136 Cal. 481, 69 Pac. 140.

Appellant relies largely upon the recent case of Big Six Development Co. v. Mitchell, 138 Fed. 279, 70 C. C. A. 569, as being direct authority that equity will retain his bill. The facts there presented an unusual case for injunctive relief, and the court, Judge Hook dissenting, held that as the injury was to the res, equity had jurisdiction not only to restrain waste or threatened trespass, but having acquired jurisdiction might proceed “to settle the question of title, and to remove the cloud." The doctrine thus expressed was applied to a very unusual condition of facts, and unless its meaning is circumscribed by the peculiar features of the case, it would appear to be an extension of equitable jurisdiction beyond the rule of decision of this circuit, and of other circuits, as laid down in Kellar v. Craig, 126 Fed. 630, 61 C. C. A. 366, and other federal cases already cited.

It results from what we have said that, inasmuch as plaintiff has a complete remedy at law, his position invoking the general equity powers of the court cannot be upheld. Bruce v. Murray, 123 Fed. 366, 59 C. C. A. 494. Manifestly, the principal issue involved in the case, and the one that should be first tried, is right of possession against defendants in possession, and defendants have a right to stand on their possession until compelled to yield to better title, and to demand trial by jury as to whether plaintiff has a true title. Fussell v. Gregg, 113 U. S. 554, 5 Sup. Ct. 631, 28 L. Ed. 993.

As plaintiff claims no special rights under the Alaska Codes, other than such as he is entitled to under general equitable principles, which it may be assumed are not narrowed by the Codes, it is unnecessary to consider the argument of the appellees to the effect that under Alaska Code Civ. Proc. $$ 301, 475, courts of equity will not determine questions of title and right of possession at the instance of one out of possession, in an action brought by such person against one in possession.

The order dismissing the bill without prejudice to an action at law is affirmed.

(157 Fed. 155.)

(Circuit Court of Appeals, Eighth Circuit. November 6, 1907.)



The only fraud which may be availed of in an action at law in a federal court to avoid a formally executed release of the claim sued on is misrepresentation, deceitor trickery practiced to induce the execution of a release which the signer never intended to execute and upon which the minds of the contracting parties never met, and does not include any of those misrepresentations of fact which may have been resorted to in order to persuade the claimant to agree to the release as actually made. In such respect it is immaterial whether the release is or is not under seal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Release, § 32.] 2. COURTS-FEDERAL COURTS-EQUITABLE DEFENSE IN ACTION AT LAW.

In the federal courts, the rule subsists that the distinction between legal and equitable defenses is always recognized, and such rule cannot be affected by state legislation or practice permitting equitable defenses in actions at law.

[Ed. Note. For cases in point, see Cent. Dig. vol. 13, Courts, 88 912, 913.] 3. RELEASE-DEFENSE IN ACTION AT LAW-PLEADING IN AVOIDANCE-FRAUD.

In an action on an accident insurance policy in which a formal release of the claim executed by defendant for a stated consideration was pleaded as a defense, a replication which in effect denied that plaintiff executed a release but alleged that if she did it was procured by fraud and deceit in that defendant's agents represented to her that defendant was not liable on the policy and read asfidavits to her purporting to state facts, known to them to be untrue, in support of such representation, whereby she was induced to accept a sum of money from defendant which purported to be a gift, does not state such a case of fraud as would avoid the release at law.

In Error to the Circuit Court of the United States for the Eastern District of Missouri.

James C. Jones (Jones, Jones, Hocker & Davis, on the brief), for plaintiff in error.

Frederick H. Bacon, for defendant in error.

Before VAN DEVANTER and ADAMS, Circuit Judges, and RINER, District Judge.

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