takes persons on the land, and offers it for sale, takes posts there with the intention of using them in building a fence, and sharpens the posts ready to drive, such person has such actual possession of the property that he may maintain an action under Civ. Code Kan. § 594, to quiet his title thereto as against the tax-deed holder, who makes no claim of having possession.Hoffman v. Woods, 19 Pac. 805, 40 Kan. 382.

[h] (Mich. Sup. 1886) Complainant, after purchasing certain land which was in the possession of and adversely claimed by defendant, erected a small shanty on skids, which he moved on the land, and erected a barb-wire fence with posts only at the four corners. Held, that the possession was not sufficient to maintain an action to quiet title, and complainant should be remitted to his action in ejectment.-Watson v. Von Derheide (Watson v. Brewing Co.) 28 N. W. 726, 61 Mich. 595.

[i] (Mo. Sup. 1895) A party, by turning a cow into an inclosed lot and removing bill boards therefrom, does not acquire such possession of the land as will sustain an action to remove a cloud from the title.-McRee v. Gardner, 33 S. W. 166, 131 Mo. 599.

[j] (N. J. Ch. 1896) Possession of complainant is peaceable, within Act 1870 (Revision, p. 1189; 3 Gen. St. p. 3486), where defendant setting up a claim of title has not interfered with complainant's possession by an act which is suable at law, and suit upon which will or may involve the title of defendant.-Allaire v. Ketcham, 35 Atl. 900, 55 N. J. Eq. 168.

[k] (N. J. Ch. 1898) Where complainant's grantor staked off land including that in dispute, caused it to be surveyed and graded, and streets to be laid out, had a map issued showing it to belong to him, and had a movable tramway put over a portion of it, and complainant, after taking it, kept it in constant repair, and made numerous extensive and plainly visible improvements, and was the only one except his grantees to exercise acts of ownership, complainant has such possession as will enable him to bring a bill to quiet title.-Land Co. v. Dunn, 40 Atl. 121, 56 N. J. Eq. 749.

[1] (N. Y. App. 1892) Under Code Civ. Proc. § 1638, providing that where a person has been, or he and "those whose estate he has" have been, in possession of land for three years, he may bring an action to determine adverse claims thereto, a wife who, since her husband's death, has lived in part of a house, and collected rents from the tenants of the other portions, may bring such action when her possession and that of her husband have continued through a period of three years.-Deifendorf v. Deifendorf, 30 N. E. 375, 132 N. Y. 100.

[m] (N. Y. App. 1898) On a verbal agreement for the purchase of land, plaintiff went into possession, paid part of the purchase price and taxes, cultivated it, and erected a house thereon. Held such possession as enabled him to maintain an action to determine a hostile claim, under Code Civ. Proc. § 1638, providing that a person in possession of land, claiming it in fee, may maintain such an action.-Brown v. Crabb, 51 N. E. 306, 156 N. Y. 447.

[n] (Pa. Com. Pl. 1899) A temporary possession or occupancy is not the possession meant by Act June 24, 1885 (P. L. 152), which permits a party in possession to remove any cloud on the title which might have arisen by reason of the sales mentioned in the act.-Petroleum Co. v. Nutting, 8 Pa. Dist. R. 523.

2. Constructive Possession.

[a] A plaintiff who has the legal title to lands that are wild, uncultivated, and unoccupied may maintain an action in equity to remove a cloud upon his title, though he has no other than the constructive possession resulting from the legal ownership.

-(Md. App. 1896) Baumgardner v. Fowler, 34 Atl. 537, 82 Md. 631; (Neb. Sup. 1890) Lejeune v. Harmon, 45 N. W. 630, 29 Neb. 268. [b] (U. S. Sup., Wis., 1895) Where a railroad company, which has purchased large tracts of land, constructs its road and appurtenances over certain parcels thereof, the possession thus held of a part may be regarded as sufficient constructive possession of the remainder, which are in fact vacant and unoccupied, to support a bill to quiet title to the whole.-Roberts v. Railroad Co., 15 Sup. Ct. 756, 158 U. S. 1, 39 L. Ed. 873.

[c] D. C. Sup. 1893) The placing on record of a void tax deed, and also a deed from the tax-sale purchaser to another, is not sufficient to draw to the latter constructive possession of the land.-Scott v. Hyde, 21 D. C. 531.

[d] (Fla. Sup. 1889) Possession by a duly-authorized agent, having charge of all the land and engaged in keeping off trespassers, is sufficient to sustain the equitable jurisdiction to remove a cloud on the title in favor of owners of legal title who are themselves nonresidents.-Sloan v. Sloan, 5 South. 603, 25 Fla. 53.

[e] (Mo. Sup. 1899) Under Rev. St. 1889, § 2092, permitting a person in possession of land to file a petition to quiet title, mere constructive possession of unoccupied and uncultivated lands, evidenced by paying taxes and employing a man to visit the land occasionally and drive away trespassers, is not sufficient to support the petition.-Catlin v. Lumber Co., 52 S. W. 247.

[f] (Mo. App. 1894) A person who is not in the actual possession of land, and has no color of title and constructive possession, cannot maintain an action to quiet title.-McGrath v. Mitchell, 56 Mo. App. 626.

[g] (Mo. App. 1894) The possession of land by a plaintiff's agent is sufficiently the possession of the plaintiff to sustain an action to quiet title.-Root v. Mead, 58 Mo. App. 477.

[h] (N. J. Err. & App. 1892) Possession in fact, as distinguished from constructive possession arising simply by virtue of legal title, is essential to the jurisdiction of the court of chancery under the act to compel the determination of claims to real estate, and to quiet the title to the same (Revision, 1189): but actual possession of the principal tract is sufficient possession of adjoining uninclosed pieces of lands held under the same title, and used in connection therewith, to confer jurisdiction to quiet the title to the latter.-Yard v. Association, 24 Atl. 729.

[i] (N. J. Ch. 1898) Under 3 Gen. St. p. 3488, one who has mapped lands into lots, filed his map, dedicated streets, and sold lots, may file a bill to quiet title, not only to the lots retained, but also to the lots sold, and the possession of the grantee of the lots sold is the possession of the complainant for the purposes of that suit.-Land Co. v. Dunn, 40 Atl. 121, 56 N. J. Eq. 749.

[j] (N. M. Sup. 1896) One having a deed and good title to a tract of land, and actual possession of a part of it, has constructive possession of the remainder, enabling him to maintain a suit to quiet title thereto, against one who, though having a deed giving him color of title thereto, and being in possession of other land included in his deed, has done nothing but irregular, occasional, or equivocal acts to oust the true owner.-Gentile v. Kennedy, 45 Pac. 879, 8 N. M. 347.

[k] (N. Y. Sup. 1898) Code Civ. Proc. § 1638, gives the right to a person who has been in possession of real property for one year, in which he claims an estate not less than a 10-year term, to bring an action to determine any adverse claim thereto. Held that, under the statute, constructive possession, as tenants, was sufficient.-Clason v. Stewart, 51 N. Y. Supp. 1100, 23 Misc. Rep. 177. [1] (Pa. Com. Pl. 1896) Under Act June 10, 1893, providing that when any person is in possession of lands claiming to hold possession under any right or title which is disputed or denied by any other person he may apply for a rule to show cause why an issue should not be framed to determine the rights of the parties, there must be actual possession by the petitioner, in order that he may maintain such action.-Hilborn v. Wilson, 17 Pa. Co. Ct. 346.

[m] (W. Va. Sup. 1897) Equity, under its jurisdiction to remove a cloud, will not entertain a bill by one who has only constructive possession.-Carberry v. Railroad Co., 28 S. E. 694, 44 W. Va. 260.

VIII. PLEADING.

1. Necessity of Alleging Possession.

[a] In suits which are purely in the nature of bills to quiet title, the general rule is that plaintiff must aver in his petition that he is in actual possession. -(Ky. App. 1890) Gately v. Weldon, 14 S. W. 680; (1897) Cornelieson_v. Foushee, 40 S. W. 680, 101 Ky. 257; (1897) Coppage v. Griffith, 40 S. W. 908; (1897) Smith v. White, 41 S. W. 436;

(Md. App. 1891) Livingston v. Hall, 21 Atl. 49, 73 Md. 386.

[b] In bills to remove clouds from the title to real estate, it must be shown that complainant was in possession of the land when the bill was filed, or that the land was wild and unoccupied.

-(Fla. Sup. 1895) Watson v. Holliday, 19 South. 640, 36 Fla. 488; (1897) Richards v. Morris, 22 South. 650, 39 Fla. 205;

(Ill. Sup. 1896) Robertson v. Wheeler, 44 N. E. 870, 162 Ill. 566; (1899) Glos v. Huey, 54 N. E. 905, 181 Ill. 149.

[c] (Ariz. Sup. 1889) Though the statute of 1881 abrogated the rule that one out of possession could not sue in equity to quiet his title, a complaint which neither shows that plaintiff is in possession, or is entitled to possession, is bad. Astiazaran v. Mining Co., 20 Pac. 189.

[d] (Ind. Sup. 1895) In an action to quiet title, if plaintiff is not entitled to possession, the complaint must show the nature of his interest or title, and that it is consistent with the right of possession in another.-Railway Co. v. O'Brien, 41 N. E. 528, 142 Ind. 218.

[e] (Miss. Sup. 1896) A bill to remove a cloud on title which fails to show any title in the complainant is fatally defective.-Pierce v. Hunter, 19 South. 660, 73 Miss. 754.

[f] (N. Y. Sup. 1898) A party shown without objection to be in possession of the premises may have a cloud removed from his title, notwithstanding the complaint does not allege his possession.-Nickerson v. Marble Co., 54 N. Y. Supp. 705, 35 App. Div. 111.

[g] (W. Va. Sup. 1898) A bill to remove a cloud from title, which shows on its face that complainant has no title to the land himself, and no right to interfere with others who appear to have good title thereto, is properly dismissed.Harr v. Shaffer, 31 S. E. 905, 45 W. Va. 709.

2. Sufficiency of Allegations.

[a] (U. S. C. C., Nev., 1897) Under the statute of Nevada relating to actions to quiet title to real property, plaintiff, in bringing a suit in equity for that purpose in the federal court of Nevada, need not set out specifically the character of his own title, or of the alleged title of the defendant, but need only allege that plaintiff is the owner and in possession of the property, describing it. and that the defendant is unlawfully asserting a claim thereto adverse to him.-Mining Co. v. Warren, 82 Fed. 519.

[b] (Ala. Sup. 1899) An allegation in a bill to quiet title that, since their purchase of the premises, complainants "have resided on the same and are now in possession thereof," is a sufficient averment of possession.-Liddell v. Carson, 26 South. 133.

[c] (Colo. Sup. 1896) Under Code Civ. Proc. 1887, § 255, providing that “an action may be brought by any person in possession, by himself or his tenant, of real property, against any person who claims an estate therein adverse to him, for the purpose of determining such adverse claim," plaintiff need only allege that he is the owner in fee simple and in possession, without defining the adverse claim which he seeks to have determined.-Amter v. Conlon, 43 Pac. 1002, 22 Colo. 150.

[d] (Ky. App. 1896) An allegation in a petition under St. § 11, to quiet title, that plaintiff is the owner and in possession of the tract of land in dispute, is a substantial statement that plaintiff is in actual possession.-Weaver v. Bates, 33 S. W. 1118.

[e] (Neb. Sup. 1896) A petition was not open to the objection of failing to plead plaintiff to be the owner of the land in suit where it averred "that plaintiff was, at the time of the making and execution of the contract hereinafter mentioned [the one sought to have canceled], the owner, and is now, and has been for more than five years last past, in the possession" of the premises in controversy, and there was no averment in the pleading that plaintiff ever parted with title.-Scarborough v. Myrick, 66 N. W. 867, 47 Neb. 794.

[f] (N. Y. Sup. 1896) An allegation that plaintiff is the owner in fee simple of unoccupied lands is a sufficient averment of his possession thereof, in an action to quiet title.-Andrus v. Wheeler, 42 N. Y. Supp. 525, 18 Misc. Rep. 646.

(99 Fed. 286.)

LANE et al. v. WELDS et al.

(Circuit Court of Appeals, Sixth Circuit. December 4, 1899.)

No. 739.

1. JUDGMENT-RES JUDICATA-PERSONS Concluded.

In order that one not a party of record, nor in privity with a party, shall be concluded by a judgment, on the ground that he assumed the burden of the defense in the suit, his action in that regard must have been open, and known to the opposite party.

2. PATENTS-INVENTION-WIRE FENCES.

The Hewitt patent, No. 316,458, for improvements in wire fences, the fence described being formed by a combination of crimped metal pickets, and a series of cables formed of two wires twisted together, between which the pickets are held, is void for lack of patentable invention, as both elements were old, and the crimped pickets merely the equivalents of the notched or grooved wooden pickets known in the prior art. 8. SAME.

The Lane and Lane patent, No. 518,506, for an improvement in wire fences, which consists in incorporating in a wire picket fence crimped or corrugated wire pickets, with the reverse twisting of the strands of the longitudinal wires between the pickets, which was the usual mode of twisting such wires previously, when the fence was made in the field, whether the pickets were of metal or wood, is void for lack of invention. 4. SAME.

The incorporation upon an old art of a function of the mechanism commonly used to produce the fabric of the old art does not constitute invention which will sustain a patent.

5. SAME-COMMERCIAL SUCCESS.

The commercial success of a patented article is only one element to be considered, where patentability is otherwise in doubt.

Appeal from the Circuit Court of the United States for the Eastern District of Michigan.

This is a bill brought to restrain infringement of letters patent No. 316,458, issued March 31, 1885, to one W. Hewitt, which has been assigned to the complainants, and letters patent No. 518,506, issued April 17, 1894, to J. and C. Lane, the complainants below and appellants here. Both patents are for improvements in wire fences. The bill avers that the validity of the patents and the fact of infringement is res adjudicata by reason of a decree in a former suit upon the same patents, between complainants and one William Price, the defense having been made for Price by the present defendants in their own interest. The answer denies infringement; denies that defendants were parties or privies to the former suit, or in any way estopped thereby; and denies the validity of the patents involved. The decree was for the appellees, the lower court finding that defendants were not estopped by the decree in the former suit with Price, and that the patents involved were void.

R. A. Parker, for appellants.

James Whittemore, for appellees.

Before TAFT, LURTON, and DAY, Circuit Judges.

LURTON, Circuit Judge, after making the foregoing statement of facts, delivered the opinion of the court.

1. The decree against Price, establishing the validity of the two patents upon which this suit is brought, does not estop the present

defendants from challenging the validity of those patents. Defendants were not parties or privies to that suit, and had no direct interest therein. B. A. Weld, one of the defendants, was the patentee of a fence-making machine, which was capable of making many different kinds of wire and wire and slat fences. The patentee, or the firm of which he was a member, it does not clearly appear which, sold to one Price one of the Weld fence machines. They also sold him some crimped or corrugated wire pickets, which were capable of being used in the construction of many kinds of wire fences, including those covered by the Hewitt and Lane patents. Price was sued for making the Hewitt and Lane fence with the Weld machine. Neither the Weld fence machine nor the crimped pickets infringed either patent, as neither patent included any mechanism for the construction of the fence or the crimped or corrugated picket, except so far as such pickets were one element in the fences covered by the claims of those patents. In fact, crimped or corrugated wire pickets were old, and could not have been the subject of any patent as an article of manufacture. Weld, therefore, had no interest in the suit of Lane and Lane against Price, except in so far as it limited the use of the Weld machine to fences not covered by the two patents owned by Lane and Lane, or to those having licenses under those patents. The claim that B. A. Weld, either for himself or the firm of which he was a member, assumed to defend that suit, and thereby estopped himself, is not satisfactorily made out. The most that can be said is that he at one time promised to defend same, and did pay five dollars to the solicitor employed by Price to obtain copies of the patents claimed by Lane and Lane. He, however, declined to carry out this promise, and refused to pay the retainer fee of counsel or the expense incident to making the necessary patent-office investigations. When Price found that Weld would not defend the suit, he abandoned the case, and suffered a decree to be taken upon an agreement by which the complainants in that suit waived an assessment of damages and paid the costs.

Aside from the unsatisfactory character of the evidence relied upon as establishing the fact that the defendants, or any one of them, did defend said suit, even so far as any defense was made, there is no evidence whatever going to show that the complainants in that suit knew anything whatever as to the interference of the present defendants with the defense of that suit. Indeed, it does not appear that the complainants in the Price suit even knew of the relation of Price to either B. A. Weld, or Weld & Co., or of the license which Price held under them to use and sell their machine. An estoppel must be mutual. If the defendants did not openly and avowedly, to the knowledge of the complainants, undertake the defense of that suit, the complainants would not have been estopped by the decree, if adverse to them, in a subsequent suit against the defendants. The principle is correctly stated thus in Herm. Estop. p. 157:

"If one not a party of record, nor in privity with a party of record, to a judgment, desires to avail himself of the judgment as an estoppel, on the ground that he in fact defended the action resulting in the judgment, he must 39 C.C.A.-34