WHITEHEAD V. ElSTWHISUE.
of the state statute are pninted out, and it is clearly demonstrated that no fact appeared upon the face of the bill which defeated the right of the court to entertain jurisdiction in equity. It is made plain, however, that this ruling was based upon the assumption that the defendant was not in possession, and that therefore an action at law could not be sustained. Thus, we find it said: "No adequate relief to the owners of real property against the adverse claims of persons not in possession can be given by a court of law. If the holders of such claims do not seek to enforce them, the party in possession, or entitled to possession,-the actual owner of the fee,-is helpless in the matter, unless he can resort to a court of equity. It does not follow that by allowing, in the federal courts, a suit for relief, under the statutes of Nebraska, controversies properly cognizable in a court of law will be drawn into a court of equity. There can be no controversy at law respecting the title to, or right of possession of, real property, when neither of the parties is in possession. An action at law, whether in the ancilmt form of ejectment or in the form' now commonly used, will lie only against a party in possession. Should suit be brought in the federal court, under the Nebraska statute, against a party in possession, there would be force in the objection that a legal controversy was withdrawn from a court of law; but that is not this case, nor is it of such cases we are speaking. '" '" '" If the controversy be one in which a court of equity only can afford the relief prayed for, its jurisdiction is affected by the character of the questions involved." In Reynolds v. National Bank, 112 U. S. 405, S. C. 5 Sup. Ct. Rep. 213, it is held that the legislation of the state may be looked to, to ascertain what constitutes a cloud upon a title, and that what is declared to be a cloud by state statute will be removed by a court of the United States sitting in equity, even though, in the absence of the statute, the defect was not such as courts of equity had recognized as casting a cloud upon the title. The facts of the case did not present the question of a speedy and adequate legal remedy. Killian v. Ebbinghaus, 110 U. S. 568, S. C. 4 Sup. Ct. Rep. 232, and Fussell v. Gregg, 113 U. S. 550, S. C. 5 Sup. Ct. Rep. 631, reiterate the rule to be "that whenever a court of law is competent to take cognizance of a right, and has power to proceed to a judgment which affords a plain, adequate, and complete remedy without the aid of a court of equity, the plaintiff must proceed at law, because the defendant has a constitutional right to a trial by jury." If, then, it be true that the state statute can, by enlarging equitable rights and remedies, confer upon the United States courts equitable jurisdiction in a case wherein there exists a plain and adequate remedy at law, it follows that indirectly, but effectually, state legislation has &brogated section 723 of the Revised Statutes, which expressly forbids the United States courts from taking jurisdiction in equity in cases wherein the remedy at law is adequate, and has annulled the conprovision securing the light of trial by jury. As we construe the allegations of the bill filed in the present cause, it clearly appears therefrom that complainant has a speedy and ade· <tuate remedy at law to settle the question of title and right of pos..
session of the realty in dispute between the parties hereto; and, that being so, it follows that this court cannot, sitting as a court of equity, entertain jurisdiction of the cause, and the demurrer to the bill must therefore be sustained.
(Oircuit Oourt, D. Kansa8. June 8, 1886.)
ATTORNEY AND COUNSEL-ADVICE-EsTOPPEL.
While a lawyer does not insure the correctness of his advice, yet. after having .given it, he is estopped from speculating upon it to the injury of his client. ' When a lawyer and mistakenly, yet honestly, gives advice, and thereafter enters upon a speculation in respect to the property, the subjectmatter of the advice. the law holds him as an agent for his client, and holds the speculation as only for the benefit of the client. But if, when giving the advice, the lawyer at that time understood, not that he was regularly employed to do so. and if the advice was an answer abstractly correct to a question put generally, and not with all the facts and circumstances of the case stated, the above principle does not apply.
SAME-INCORRECT ADVICE, IN GOOD FAITH-EFFECT OF ATTORNEY'S SUBSEQUENT PROFIT BY IT-ESSENTIAL CONDITIONS.
In Equity. J. J: Buck and W. H. R08sington, for complainant. L. F. Vuller, for defendant.
BREWER, J. The facts in this case are these: A man named Christie was the holder of a large body of land in Marion county, including therein the tract upon which the mortgage in controversy is sought to be foreclosed. On November 29, 1879, be executed a note for $1,973 to a man named Gr,egg. Both of these parties lived in Canada. On February 20, 1880, Christie acknowledged and delivered a mortgage on this tract to secure such note. That mortgage was reand acknowledged by him on corded March 8, 1880. It was February 20th, though not signed or acknowledged by his wife until February 24th, but in fact it was delivered to the mortgagee on February 20th, or, rather, delivered to his agent, and this agent afterwards went and got the wife's signature. It was delivered in lieu of a mortgage which had been executed in November prior, and returned. So that this Mr. Gregg had a mortgage in his possession, acknowledged by the mortgagor on the twentieth day of February, 1880. On the twenty-third of February, three days after he received the mortgage, an attachment was placed upon this land by a man named Leonard. The mortgage was therefore executed and delivered by the mortgagor himself three days before the attachment, but not recorded until about eight days thereafter. That attachment