DUNCAN v. GREENWALT.(Circuit Court, E. D. Missouri. 1.
March 21, 1882.)
COURTS 011' EQ.UITy-JURISDICTJON-PRACTICE-STATUTORY ACTIONS.
Where the statutes of a state, in which the distinction between actions in cbancery and suits at law is abolished, provide for a particular action, the question whether a federal court held in that state should regard that action, when brought before it, as legal or equitable, must depend upon the facts stated and the relief sought. If the suit appears to be in the nature of a suit in equity, it should go upon the equity calendar, and be proceeded with in accordance with the equity rules.
2. SAME-SAME-AcTION TO QUIET TITLE.
Courts of equity have jurisdiction over suits to quiet the title to real estate.
In Equity. This is a bill in equity filed by the complainant to quiet the title to certaiu real estate, situated in the city of St. Louis, by removing a cloud therefrom, caused, as is alleged, by the execution to the defendant's grantor of a certain tax deed. It is alleged that the pretended tax sale, and the deed executed in pursuance thereof, were void because of the failure to comply with the provisions of the statute of Missouri concerning tax sales. The respondent demurs to the bill upon the ground that under certain statutes of Missouri the complainant has a plain, speedy, and adequate remedy at law. E. Ounningham, Jr., for complainant. E. R. Monk, for respondent. MCCRARY, C. J., (orally.) The bill as it now stands is plainly a bill to quiet title to the real estate in controversy by removing a cloud therefrom, and it is properly brought upon the equity side of the court, in accordance with long-established rules, unless it be true, as claimed by counsel for the respondent, that a plain, speedy, and adequate remedy at law is provided by certain statutes of Missouri. The first of these is section 6852 of the Revised Statutes of Missouri, which provides as follows:
" Any person hereafter putting a tax deed on record in the proper county shall be deemed to have set up such a title to the land described therein as shall enable the party claiming to own the same land to maintain an action for the recovery of the possession thereof against the grantee in deed, or any person claiming under him, whether such grantee or person is in actual posession of the land or not."
Counsel for the respondent is in error in insisting that a remedy given by statute is necessarily a remedy at law. The Code of MisoIl'Heported by B. F. Rex, Esq., of the St. Louis bar.
DUNCAN V. GREENWALT.
souri, like the codes of many other states, abolishes the distinction between actions in chancery and suits at law, and provides for the mingling the two in the same proceedings. The statute, therefore, provides both for equitable and legal proceedings. And when the statute provides, as in the section just quoted, for a particular action, the question whether that action is to be regarded in this court as equitable or legal must depend upon the facts stated, and the nature of the relief sought. Although authorized by the Code it may be an equitable action. It is insisted that this section provides for a suit by a party in possession. If it has that meaning it is certainly an anomaly in the way of legislation, for in the very nature of thingG a suit to recover possession of real estate cannot be maintained by a party who already has possession. The statute, however, does not provide that a suit for possession may be brought by a party who already has the possession; it provides that such a suit may be brought against the grantee in a tax deed, or his assignee, whether such grantee or assignee is in possession of the land or not. It may apply to a case where the land is not occupied in fact. But, even if construed to apply to such a case as the present one, I do not think it provides for an exclusive remedy at law. In the state courts it might be held that a proceeding instituted under this section would afford the complainant an ample remedy, because either an equitable or legal action might be brought thereunder. But when such an action comes into this court we are bound by the equity practice which prevails here to look into the case, and if it appe,trs to be in its nature a suit in equity, it must go upon our equity cal811dar, and be proceeded with in accordance with the equity rules. The sElction, therefore, does not prescribe for all actions a remedy at law, nor can I say that it prescribes such a remedy in the present case. since the. bill shows upon its face a case in equity. The other statutory provision relied upon by the respondent is section 3;'561 of the Revised Statutes of Missouri, which provides in sub· stance that a party in possession of real estate may bring action against a party out of possession, who claims title, to require him to commence his suit at law to settle the question of his rights. It has been expressly held by the supreme court of Missouri that this section does not give an exclusive remedy at law so as to oust the jurisdiction of a court of equity in a case brought to remove a cloud from the title. Hal'l'ington v. Utterback, 57 Mo. 519. v.10, no.8-51
If the respondent, however, thinks that the question of title in this case can be and should be determined in a court of law, where there can be a trial by jury, she is at liberty to institute such a suit, which she can do at any time, the complainant being in possession. The fact that a bill in chancery has been filed· does not estop respondent from commencing an action at law. If such an action be commenced the court will then determine whether the suit in equity should be stayed until after a trial in the action at law. The demurrer to the bill is overruled. TREAT, D. J., concurs.
(District Court, W. D. North Carolina. November Term, 1881.)
CRIMINAL PROCEDURE-ARREST AND REMOVAL OF OFFENDERS FOR TRIAL.
Section 1014, Hev., St. in conferring criminal jurisdiction on commissioners appointed by the circuit courts, declares that proceedings before them shall be agrecaoly "to the usual mode of process" in the state where they are appointed; from which it may be inferred that it was the intention of congress to assimilate all proceedings for holding persons accused of crime to answer before a court of the United States, to the proceedings had for similar purposes by the laws of the state where such court is held.
COURT' COMMISSlOKEr.s-AuTIronrTY TO COMMIT.
The commissioners have authority under the state statutes to commit defendants to county jails. The mittim1t8 must be directed to the marshal, com. manding him to convey the prisoner into the custody of the jailer, and it must also direct the jailer to receive the prisoner and keep him in close custody until discharged or taken from his custody by some proper process of law. Commissioners have similar powers in United States cases as justices of the Deace have in state cases.
AUTIIORI'l'Y 01-' MAUSHAL.
The commitment of the prisoner to the county jail is not an absolute commitment, as the marshal can take the prisoner out of the custody of the jailer when it becomes necessary for him to complete the service by capias by producing the oody of the prisoner at the ensuing term of court.
4. SAME-OnDER OF COURT OR DrsTIUCT ATTORNEY.
Section 1030, Rev. St., directs that "no writ is necessary to bring into court any prisoner or person in custody, or for remandinp; him from the court into custody, but the same shall be done on the order of the court or district attorney."
Section 788, Hev. St., provides that marshals in each state, in executing the laws of the United States, shall have the same powers as sheriffs in executing the laws of the state. The proper practice in the execution of their powers suggested.