NORTHERN PAC. R. CO. t:. CANNON.
condition of the property now sought to be reached greatly changed-. Woodlands disappeared before the axe of the tenantsj pastures, ows, and fields appeared w.here there were outlying waste lands. Per111anent homes and tenant houses were built. New leases for mining purposes were made. Abandoned or surface developed mines hegan to hum, with the voices of miner!! and the ring of the pick and shovel; and shut-downfumaces began to glow with newly-kindled fires., New and costly machinery was bought and put to work on these lands. New mines were opened and worked ·to unprecedented depths, and unknown mineral wealth was thus developed, at an outlay exceeding $100,000. Much of this unquestionably was predicated of the assurance that the property was not subject to any claim of dower. The proximity of the complainant during all this time to the property warrants thepresumption that she had knowledge of all this work of development, and yet stood mute. Her silence and inaction are fatal to her claim, so far as the real estate is concerned. As to her claim to a new participation in the personal estate,it is sufficient to say the right of action was barred within five years after the dis. covery ofthe fraud; and discovery is deemed in such case to take place from the time the party has notice of the main facts constituting the fraud. 2 Rev. St. Mo. § 6775; HunfR/r v. Hunter, 50 Mo. 445-45tj Thomas v.Mathew8, 51 Mo. 107; RiwrdB v. Watkins, 56 Mo. 553. It results that the bill is dismissed. '
CO. t1. CANNON
(C'lircuit Court.D. Montana.
QUIIliTING TITLE-ENJOINING FOROIBLIli ENTRY AND DETAINER ACTION.
Plaintift in a suit to quiet title cannot enjoin defendant from bringing an BOtion at law against him for forcible entry and detainer of the premises in question. Equity wlll not enjoin an action at law, when the party seeking tlle injunction has a good defense at law.
INJUNCTION-AOTION AT LAW.
Proceedings at raw, not of a strictly civil nature, will not be enjoined except where the same right is sought to be substantiated both at law and in eqUity. in forcible entry'and detainer are of a quasi criminal nature.
4. FORCIBLE ENTRY AND DETAINER.
In Equity. Suit by the Northern Pacific Railroad Company against Charles W. Cannon and others, to quiet title. Heard on motion for an injunction. Denied. For former reports, see 46 Fed. Rep. 224, .237. F. M. Dudley and Oullen, Sander8 &; Shelton, for complainant. Thole &; WaUace and McConnel}, &; Clayberg, for defendants.
KNOWI,.E8, District Judge. Plaintiff commenced an action in this court to quiet title to a certain tract of land in Lewis and Clarke county,
FEDERAL REPORTER; Vb!.
Mont,: hAft'er the filing of bill ';complo.int and the issuing of a subpuma, theudefendants comihenced "andMtionof forcible entrynnd de· tainer against'plaintiff,setting forth in' th'llir. complaint that plaintiff had forcibly obtained and wasretuining byfofce the premises in dispute. The plaintiff t'tlen appliell to this Ctlurt totestrain this'action of forcible entry and detainer. Arestraining order was obtained,and the cause, upon the application for injunction,set down for B' hearing during the present term of this court, and waS argued andsubtnitted. Plain· tiff claims thatthis actioll would interfere with the prooeedings in equity to quiet the title of plaintiff. The action of forcible entry anel unlawful detainer in noway determines the title to the premises in dispute, or right to the possessi()nthereof., Parks v. Barkley, 1 Mont. 514; Boardmlt1ll\t. Thompson, 3 Mont. 387. Equity interferes by injunction to re· stl'Jlin an action at law ta recover possession of real estate when a person seeking the injunction nal;a all equitable title, and the person sought to be enjoined has a legal title, which has been obtained by fraud or mistake; III such a case the action at law is stayed until the equitable rights of the parties are determined. It is held that upon such a state of facts it would be giving the plaintiff in the action at law an unfair ad· vant¢ge to allow him to proceed and obtain judgment, but in this case the plaintiff has a legal title, and claims actual possession of the prem. ises, the title to which it would quiet. The issue in forcible entry and unlawful detainer in such a case as this is as to whether the defendant in that action by force obtained the possession of the premises from plaintiff. and withholds the same from lllaintiff. This is not an issue presented in this case at bar for the consideration of the court. It cannot be called upon to enter any judgment or decree upon such an issue. There is no Showing in the application for an injunction herein that plaintiff has not a and legal deltmse to the action of forcible entry. It is an established rule in equity that a court will not enjoin an action at law when a party seeking the injunction has a good defense at law. Grand Chute v. Winegar, 15.Wall. 373; There are presented no grounds of equitable defense to this action which should be first determined before a proper defense to the action at law could be maintained. Plaintiff has cited some English caseswheie criminal proceedings in the nature of forcible entry were enjoined: Mayor, etc., V.' Pilkington, 2 Atk. 302; Montague v. Dud"flW,n, 2 Ves. Sr. 398 j Attorney General v. Cleaver, 18 Ves.220. But it should be observed that these were cases of injunction against the plaintiff, who was proceeding in a civil suit upon the same matter of right as well as in a criminal proceeding. In Story's Equity Jurisprudence(section 893) it is laid down as a general rule that courts of equity "will not interfere to stay proceedings in any criminal matters, or any cases not strictly of Ii civil nature;" and that learned author says the exception to this is where the party seeking redress by a criminal action or mandamus or an information or a writ of prohibition is the plaintiff to an action in equity. The rule is, plaintiff may be restrained if he is seeking to substantiate the same right in .both proceedings. The genetial rule is that proceedings ;\l f0rcible entry are quasi
GILCHRIST tiiHELENA, HOT SPRINGS &: S. R. CO.
criminal. Sheehy v.Fldherty, 8 Mont. 365, 20Pac. .Rep.687; 2 Daniells, Ch. Pl. & Pro 1620. Other cases might be cited to the same effect. Courts of equity, it is held by the supreme court in ReSawyer, 124 U. S. 200, 8 Sup. Ct. Rep. 482, will not restrain criminal proceedings. In regard to the action of forcible entry and ·unlawful detainer, High on Injunctions (1st Ed. § 65) lays down the rule that, without some special reasons indicating "certain and manifest irreparable injury," a court will not stay an action for the· same; and says that when a party comes into court seeking equitable relief he must come with clean hands, and that one who has been guilty of a forcible entry does not so come into a court of equity. Supportin[! these views are Crawford v. Paine, 19 Iowa, 172; Lamb v. Drew, 20 Iowa, 15. It is said that allowing this action to proceed might hav.e the effect of ousting this court of jurisdiction to try this cause. I do not say that would be an effect of a judgment· in the action of forcible entry and detainer should the defendant recover judgment therein. But if it would, I should still see no reason for granting the injunction. Jurisdiction of a court, obtained by fraud, cannot be sustained. Brown,Jur.§ 43, and note 3. The application for an injunction is denied, and the restraining order set aside. .
t1. HELENA, HOT SPRINGS
& S. R: Co. It al.
(CirCUit Court, D. Montana. February 25, 1899.
Where there are a number of different liens upon the property of an insolvent railway company, a stockholder who holds a judgment against the company can· not, of his own motion, or at the instance of one lien-holder, set off the amount thereof unpaid subscriptions on his s1iOck, since the subscriptions, being a trust. for all creditors according to their equities, might be absorbed, in whole or in part, by liens found to be superior to his judgment. A stockholder in an insolvent. corporation owes nothing on unpaid subscriptions, except so much thereof as may be necessary, together with the other assets. to satisfy the creditors; and hence, before this sum is ascertained and demanded of him, he cannot be compelled to set off the whole unpaid subscription against a juo!!'ment held by him against the corporation. Emmert v. Smith, 40 Mil. 123, distmguished.
In Equity. Bill· by Thomas Gilchrist and others, partners, doing business as Gilchrist Bros. & Edgar, against the Helena, Hot Springs & Smelter Raiiroad Company, the Farmers'Loan & Tr.ust Company, and others, to enforce the lien of ajudgment. The Northwestern Guaranty Loan Company, having intervened,filed a cross-bill, and the hearing was upon a demurrer thereto. Demurrer sustaibed. For forul,er report, see 47 Fed. Rep. 593. Walsh &: Newman, for plaintiffs. Toole &: Wallace, .A. K. Barbour, and H. G. McIntire, for defendants.