GREENWALT V. DUNOAN.

35

equity adapts its decrees to the necessities of each case!' Page 432. See, also, Van Bokkeienv. Cook, 5 Sawy, 593-4:. The,pre'Bent case is a stronger one for permitting the co-tenant to sue alone, as there is no account in. which others are interested required. But this point is fully settled by the supreme court of the United States in Mississippi tl Missouri Ii. Co. v. Ward, 2 Biack, 485. steamThe suit was brought by Ward, a tenant in common of boats, to enjoin a nuisance, without making his co-owners parties <Jomplainant or defendants. Says the supreme court in deciding the case:
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"Ward was the part owner of these steam-boats, and commander or ODe (}f them, navigating the river in succellsive trips between St, Louis. and St. Paul, and which boats, the complainant alleges, were much injured and delayed by the bridge. which, he avers, is a great obstruction to navigationamounting to a prominent nuisance. It is insisted that Ward cannot sue alone, and could only come before the court jointly with the other part-ownera of the vessels irljured and delayed. He seeks no damages by his bill, but only an abatement of the nuisance, as a preventive remedy against future Injury and delay. .A.. bill in equity to abate a pUblic nuisance filed by one who has sustained damage has succeeded to the former mode in England of an information in chancery, prosecuted in behalf of the crown, to abate or enjoin the nuisance as a preventive remedy. The private party sues rather as a public prosecutor, though on his own account; and unless he shows that he has sustained, and is still sustaining, individual damage he cannot be heard. He seeks redress of a continuing trespass' and wrong 'against himself, and acts in behalf of all others who are or may be injured; nor i8 there more 1iecessitll for joining partners in the proseCution than there is for his joining in the suit any oth81' person aa complainant who haa 8UStained injury. Gibbons, Dilapidation, 402."

This decision exactly covers the point under consideration, and is authoritative. None of the points of the demurrer relied on a.re tenable. The demurrer to the bill must, therefore, be overruled, and it is so otderedt with leave to answer on or before the next rule-day of this court.

GREENWALT

v.

DUNOAN

and others,-

"

(Oircuit Oourt, E. D. Mis8IJuri. March 22, 1883.)
1.

Eq,UITY-JURISDICTION IN SUITS TO REMOVE CLOUDS UPON TITLES.

A suit to remove a cloud upon a title cannot be maintained in a court of equity, where the plaintiff has a full, complete, and adequate remedy at .Jaw.
*Reported by B. F. Re". Esq.· of the St. LouIs bar.

36
2.

FEDERAL REPORTER.

SAME-CROBS-BILL-RIGHTS OF DEFENDANT.

The defendant in a suit to remove a cloud from a title to property in the plaintiff's possession, has a rip;ht to file a cross-bill urging a superior title in himself, and to be fUlly heard; and if his title is found to be better than the plaintiff's, he is entitled to a decree in his favoF, settling the whole controversy, 3.
SAME.

Where 8 cross-bill is filed it should contain adequate averments to show title in the defendant. 4. SI.ME--How DEFECTS SHOULD BE TAKEN ADVANTAGE OF. Where the cross-bill does not contain the proper averments, the defect should be taken advantage 'of by demurrer.

In Equity. Pleas and demurrer to a cross-bill,This is a suit to quiet the title to' certain real estate situated in the city of St. Louis, by removing a cloud therefrom, caused, as alleged, by the execution to the defendants' grantor, of a certain tax deed. E. Cunningham, J,'., for complainant. E. R. Mark,' for defendants. TREAT, J. The unquestioned rule obtains in all cases in equity to remove a cloud upon a title that it must be clear that plaintiff has not a full, complete, and adequate remedy at law; otherwise he will be remitted to his common·law remedy. This, under the constitution of the United States, the acts of congress, and repeated decis· ions of the United States supreme court, is an inflexible rule. Mere questions as to conflicts of supposed legal titles can ordinarily be decided in actions of ejectment. Plaintiff's right in this case to sue in equity rests solely on the fact that, being in possession, they cannot sue the adverse parties at law. They set out in their bill with great fullness the pretended title of t,he defendants, as well as their own derivative title. The defendants file a cross-bill designed to be defensive in part, but to a large extent affirmative. The purpose of the pleader is to urge the superiority of defendants' title and to have a decree settling the whole controversy. To the cross-bill two pleas have been interposed and argued. The first is that, inasmuch as the cross-bill does not aver possession in the defendants, their remedy as for affirmative relief is at law; that is, if persons are not in possession of real estate to which they have paramount title, they should be driven to their action of ejectment. That plea rests upon a misapplication of the general rule are in court for the sole reason that they are stated. The in possession, and therefore have brought in the defendants, who are out of possession, to answer to the demand made. The defend.ants.
*For opinion on demurrer to original bill see 10 FED. REP, 800.

y'CAULL V. BRAHAM.

87

being thus in court 'at plaintiffs' instance, have a right, by answer or cross-bill, to be fully heard, and not to be denied a full hearing be, cause the sale basis, jurisdictionally, of plaintiffs' bill is true. The defendants are here because they are out of possession, and to say that, therefore, they shall not be heard wo'uld be. a strange perversion of the rule, and entirely subversive of the only ground on which plaintiffs proceed in equity. The first plea is overruled. The second plelj. looks to the averments of the cross-bill concerning the title set up affirmatively by the defendants. The as fully disclosed by the plaintiffs in their original bill, pertains to an alleged tax title. All the requirements of the I:ltatutes are set out, and the particulars wherein it is alleged said staiutes were not ob· served, by reason of which defendants' title is invalid. The cross-bill avoids meeting said allegations, and avers in the most general terms that defendants have a collector's deed. It is not disclosed under what direct authority or preliminary proceedings or judgment said collector acted. In other words, there are in the cross-bill no adequate averments to show title in the defendants. This defect should have been taken advantage of by demurrer. The court overrules the plea, but, treating it as a demurrer, gives the defendants leave to amend. It should be remarked that the form of both pleas is objectionable in referring the court by lines and pages of the cross-bill to what is stricken out, instead of stating the subject-matter. The court should not be driven to the task of hunting out by folios, lines, and pages, in voluminous pleadings, the various facts intended to be assailed, and thus determine as ex mero motu what the objection may possibly' suppose exceptionable, or what it can detect so to he. The points already presented as to the second plea cover the demurrer, which is sustained.

MCCAULL

v.

BRAHAM.

(fJircuit Court, S. D. New Y()1'k.

March 20, 1883.)

1.

CoNTRACTS-ARTISTS' SERVICES-EXCLUSIVE RIGHTS-DAMAGES-INJUNCTION.

Contracts for the exclusive services of distingUished artists in theatrical representations are personal and peculiar. Damages for violation of such contmcts are not capable of definite determination"and violat.ions of them may be properly restrained ,by injunction. Where damages for the violation of a covenant are liquidated by agreement, Bemble, an injunction will not be allowed.