(Oircuit Oourt, N.
W. D. August, 1881.)
Eq,UITY-Brr,L QUIA TnmT-HEQUISITES OF.
order, to maintain a bill qUia timet, the complainant must have a clear legal and equitable title connected with possession, and the pretended title o,r right "Which is alleged to be a cloud upon his title must not only be clearly invalid or inequitable, but must be such as may, eit!J.er now or in tho future, embarrass the real owner in controverting it.
s.,VmGINIA MILITARY DIS'l'RICT IN OHIO...,..'l'ITLES TO LANDS .PBACTICE IN U. S. TO QUffiT TtTLE-REMEDY AT LAW--ACTION UNDER SECTION 5779, OHI<iREv. tYr.
On March 17, 1807, M. entered 100 acres of land in ·the Virginia military district in Ohio, under a Virginia military warrant, which was surveyed, and, on November 28, 1823, and April 6,1824, the entry and survey were recorded in the &urvey6l'l1l office of the district. In July, 1877, the entry and survey were returnedtothe land-office and a patent issued thereon to M.'s heirs. In 1842 these lands, standing in the nllome of M., became delinquent for taxes llond were sold to A., to whom a tax deed was executed and through whom the complainant claims title. 'His predecessors in title entered into lloctullol possession in 1849,. since which time their and his possession has been under oolor of title, q.otorious, and uninterrupted. . It SeMnS (1) thatth'e entry and survey not haVing heen returned to the landoffice ,ubtihfter :ranuary 1, 1852, that theiwere vacated and annulled; (2) that the patent to M. 's heirs was issued without authority of law, llond is void; (3) . t hat the Jegal title. is still vested United States; (4) ,that the tax title, being . dep(mdent upon the entry and survey of M., falls with them, and that the complainani has only a naked legal possession. (See opinion of Mr. Justice l\iIllotthews in Fussell v. Hughes, supra.) Held, (1) that llo bill quia timet, as known in the chancery practice,cannot be maintained; (2) that, although section 5779, Hev. St. of O!J.io, may llouthorize't'h:e complainant to' commence llon action for the determination of thE' ad.vene interest of'the tlefendant, the complainant has a complete and adequllote remedy at la W; and: Qllonnot maintain a suit in equity in the courts of the United States, todetermiJ;le. such
InEquity. William Lawrence, for complainant. Hall, for;defendants. MATTHEWS, Justice. This is a bill in equity to estn,blisb Rnd quiet tb,e title qf the complainant toa tract of land of 100 acres in Logan 'Qollnty, Obio, described as Virginia military entry and survey No. »27:.6. 'rhe complainant is a citizen of Ohio; the defendant, of Vir;" The facts of the case, so fareQs material, are as follows:
On March 17,1807, Robert the ancestor of the defendants, entered a Virginia military warrant, No. 1763, for 100 acres, being entry No. 5275. which was surveyed. and the entry and survey recorded in the surveyor's oltice*Heporwd by J. C. HarVel', hsq., of the Cinc.nu"tJ bar.
CHAMBERLA.IN V. MARSHALL.
of the Virginia military district, at Chillicothe, Ohio, on November 28.1823, and Aprl16,1824. , I.} This entry and survey were for the first time returned :to the land-office in July. 1877, and a patent was issued in July, 1877, and January 25, 1878, in the name of the United States, duly signed by the president andcoulltersigned by the recorder of the Keneralland-otlice, granting the tract described to the defend. ants. as only heirs at law of Robert Marshall, deceased, who is recited therein to have been the assignee of Robert Alvery, .who was assignee of Francis Turner, the soldier whose service in the VirKinia line, on continental establishment, is declared to be the consideration of the grant, and the grant therein made purports to be in pursuance of the act of congress of August 10, 1790, and other acts of congress amendatory thereto. The act aforesaid is entitled .iAn act to enable the officers and soldiers of the "Virginia line, on continental establishment. to obtain titl811 to certain lands lying north-west of thel'iver Ohio, between the Little Miami and Scioto." It appears, from the records of the office of the auditor of Logan county, that in the list of lands in that county returned delinquent by the treasurer of the county for taxes for the year 1841,with the interest and penalty thereon;' including the simple tax for the year 1842. there is the following: No. of WaterAcres Proprietors Names. Origl. Entry; course. Org'l J:"isted. Qu'ty. 5275 Derby 100 Marshall. Robert Robert Marshall 100
TOTAL AMOUNT OF TAX.
D;C. M. 8 37 5 2 94 7, cost of survey included. And notice was thereby given that the tracts in said list, or so much thereof as necessary, would be sold at the court-house in said county on the .last Monday in December (26th) by the treasurer. It further appears bV,the same records, under date of February 27, 1843, that on Decemoer26.1.842, the county treasurer had sold the tract as above described to Jeremiah Asher; the, !lll.id delinquent sale having been advertised according, to -law for fQur weeks in succession in the Logan Gazette. a newspaper published and printe,d in the town of Bellefontaine, in said county. On May 20, 1845, the auditor of Logan county executed and delivereda deed, which was duly recorded, conveying to Jeremiah Asher the tract so sold, described as 100\ acres of land and number of entry 5275, that was charged taxation to Robert Marshall's name, _and situated in Perry township. This deed recites that the treasurer of sa:id pounty, on the last Monday in. according to the provisions of the December, (26th,) iIi the year 1842, statute in that case made and provided, to Jeremiah Asher. the said tract of land for the taxes, interest, and penalty charged thereon. amounting to $8.37 5, which were paid by the purchaser. and that mot'e than two years had.elapsed from the time of said sale and the tract so sold had not been redeemed; and that the certificate of sale had been produced t6 him. On August 6, 1849, Jeremiah Asher sold anciconveyed the tract to Eliza Ann Chamberlain, wife of William Chamberlain; br a deed duly executed and .
Value, including Buildings. 189
In the fall of 1849 the grantees entered into actual possession of the tract, enclosed it, cleared it in part, built a dwelling upon it, cultivatea, and otherwise improved it. This possession has ever since been kept up by their successors in the title, the present complainant deriving title by several mesne conveyances· from them. Since the fall of 1849 the possession of the complainant has been, with that of his predecessors, under color of title, adverse, open, notorious, and uninterrupted. Prior to that time the tract was in forest and not redllcedto any·uctualoccupancy. , On November 20, 1879, the defendants in this suit commenced in this court their action at law against the complainant to recover possession of the land in controversy. The object and prayer of the bill in this suit is that the patent be cancelled, and perpetually to enjOin the prosecution by the defendants of their action at law; that they be required to release and convey all claim to the land to the complainant, and to establish and quiet the title and possession of the complainant. 'fhe claim of the complainant is that he is in possession of the land; with a complete and perfect eqUitable title as against the defendants, which he has a; right to have established and quieted by the process of this cOurt. This claim is based on three grounds: (I) That the patent of January 25,1878, is void, there being at that time no law in force authorizing its issue, and that consequently the naked legal title is outstanding in the United States; (2) that the tax title under whioh the complainant, and those through and from whom he derived title, claim, if not shown by the proof to be sufficient and valid, will, after long-continued adverse possession, under such circumstances as are shown in proof, be presumed to be good; (3) that a similar prl.'sumption will arise that the original equity of Robert Marshall, under his entry and survey, to a patent, was transferred and conveyed tothe complainant, or those under and through whom he derives title.
It is obvious that this bill cannot be supported as a bill quia timet, as known to the equity jurisprudence of chancery courts. In describing the grounds of that jurisdiction, the snpreme conrt of the United States, in the case of Phelps v. Harris, 101 U. S. 376, say:
"The questions, what constitutes such a cloud upon the title, and what character of title the complainant himself must have in order to authorize a court of equity to assume jurisdiction of the case, are to be decided upon principles which have. long been established in those courts. Prominent among these are-First, that the title or right of the complainant must be clear; and, secondly, that the pretended title or right, which is alleged to be a cloud upon it, must not only be clearly invalid or inequitable, but must be such as may, either at the present or at a future time, embarrass the real owner in controvertit. For it is held that when the complainant himself has no title, or a doubtful title, he cannot have this relief." "Those only," said Mr. Justice Grier, "who have a clear, legal, and equitable title to land, connected with possession, have any right to claim the interference of a court of equity to give them peace, or dissipate a cloud in their title."
Orton v. Smith, 18 How. 265; and see Ward v. Chamberlain, 9
CHAMBERLAIN V. MARSHALL.
Black, 430, 444; West v. Schnebly, 54 Ill. 523; Huntingdon v. A.llen, 44 Miss. 654; Stark v. Starrs, 6 Wall. 402. And as to the defendant's title, if its validity is merely doubtful, it is more than a cloud, and he is entitled to have it tl'ied by an action at law; and if it is invalid on its face, so that it can never be . successfully maintained, it does not amount to a cloud, but may always be repelled by an action at law. Overing v. Foote, 43 N. Y. 290; Meloy v. Dougherty, 16 Wis 269. Justice Story says:
" 'When the .illegality of the agreement, deed, or other instrument appears upon the face of it, so that its nullity can admit of no doubt, the same reason for the interference of courts of equity to direct it to be cancelled or delivered up would not seem to apply, for, in such a case, 'there can be no danger that the lapse of time may depri ve the party of his full means of defence; nor can it, in a just sense, be said that such a paper can th'row It cloud over his right or title, or diminish its security; nor is it capable of being used as a. means of vexatious litigation or serious injury." 2 Eg. Jur. § 700a.
And the supreme court in that case cites with approbation from the opinion of the supreme court of Mississippi, in a case between the same parties, (Phelps v. Harris, 51 Miss. 789,) as follows':
"This jurisdiction of equity cannot properly be invoked to adjudicate upon the conflicting titles of parties to real estate. That would be to draw into a court of equity from the courts of law the trial of ejectments. * * * '£he proper forum to try titles to land is a court of law, and this jurisdiction cannot be withdrawn at pleasure and transferred to a court of equity under the pretence of removing clouds from title."
In the present oase, it appears from the bill itself that the complainant has not the legal title. The allegation is that the patent purporting to have been obtained by the defendant from the United States is void on its face, and ab initio, for want of authority on the part of the executive officers who have signed and issued it, and by virtue of a positive prohibition of an act of congress. If so, it neoessarily results that the legal title to the land in controversy never passed from the United States, and is still vested in it. It also and with equal certainty results that there is no equitable estate in the land subsisting either in the defendant or the oomplainant; for the legislative declaration which makes the patent void, i3 based upon a prohibition which takes away from the entry and survey upon which the patent professes to be based all legal effect, and restore8 the land to the public lands of the United States precisely as if no entry, survey, or patent had ever been made or issued. There is nothing left, v.8,no.6-26
therefore, to the but a naked possession, which, as against the true owner, confers no right or title whatever, because time does not run against the sovereign; and to the defendant, a void patent of no legal significance or weight whatever. The claims of the complainant under his tax deed, and based on the presumption of a grant from the defendant of his equitable interest under th,e . entry and survey, of course, cannot survive the extinguishment of the defendant's interest, both in equity and law. Those claims of the complainant are derived from and through the previous title of the defendant, and, being dependent upon it, must fall with it. The proposition, therefore, which sweeps away all title from the defendant, precisely as if none ever existed, as this proposition which avoids the patent does, necessarily leaves nothing in the complainant but a naked possession, which, however good it may be as a defence against any stranger without title, does not confer even the color of right as against the true owner. It is true that the bill claims that an equitable title vested in Robert by virtue of the entry and survey, that that equitable estate passed to and vested in the complainant by virtue of the tax deed and the presumed grant thereof, only the patent is void. But a statem,ent of . the grounds on' which it is claimed,; and on. . which alone it can be claimed, that the patent is void, will show the; im"possibilityof maintaining the existence of any such equitable estate to vest in the complainant. By the act of March 23, 1804, etltitled "An act to ascertain the boundary of the lands reserved ,by the state of Virginia, north-west of the river Ohio, for the satisfaction oIher officers and soldiers on eontinental establishment, and to limit the period for locating the said lands," (2 St. at Large - ',)in,the second section thereof, it is enacted that all the officers and sold,iers, or their legal representatives, who are entitled to bounty lands within the above-mentioned reserved territory, shall complete their locations within three years after the passage of this act, and everysuoh and soldier, or his legal representatives, whose bounty land has or shall have been located within that part of the said territory ,to which the Indian title has been extinguished, shall make return of his or their surveys to the secretary of the department of war within five years after the passing of this aot, and shall also exhibit and file with the said secretary, and within the saJile time, the original warrant or warrants under which he' claims, or a oertified oopy thereof, under thes6al ,of the offioe where the said warrants are legally kept; which warrant or certified copy thereof,
shall be sufficient evidence that the grantee therein named, or the person under whom such grantee claims, was originally entitled to such bounty land; and every person entitled to said lands, and thus applying, shall thereupon be entitled to receive a patent in the manner prescribed by law. The third section of the act is as follows:
"That such part of the above-mentioned territory as shall not have been located, and those tracts of land within that part of the said territory to which the Indian title has been extinguished, the surveys whereof shall not have been returned to the Secretary of War within the time and times prescribed by this act, shall thenceforth be released from any claim or claims for such bounty lands,and shall be disposed of in conformity with the provisions of the act entitled 'An act in addition to and modification of the propositions contained in the act entitled An act to enable the people of the eastern division of the territolJ' north·west of the river Ohio to form a constitution and state government, and Jor the admission of such state into the Union on an equal footing with the original states, and for other II
By these provisions of law it will be perceived that io entitle any one 'to a patent for lands in the Virginia military reservation, as bounties military services, it was necessary to locate them by an entry within three years after the passage of the act; and where, as in this case, the location had been made within that part of the territory to which the Indian title had been extinguished, to make return of the survey to the proper department within five years from the passage of the act, and also, within the Sll,me time, make return of the original or a certified copy of the original warrant; and it was only persons entitled to said land, and thus. applying, who were entitled to receive a patent. This implied prohibition against the issue of a patent for such lands to any other persons and under any oth!3r circumstances, is reinforced by the additional -and unambiguous provisions. of the third section. By the terms of that section, all the lands within the reserved territory that shall not have been located, and those tracts to which the Indian title has been extinguished, the surveys whereof shall not have been returned within the time and times prescribed by the act, are thereby and thenceforth released from all claims for such bounty lands, and lapse to the United States as part of the public domain, free from that trust created by the grant from the state of Virginia. to ba disposed of as otherwise required by law. Any patent, therefore, issued for any such,and .based solely on the subsisting validity of the original entry and ilurvey, not so returned within the limited time, is a patent issued ,by the officers of the
. 'FEDERAL REPORTER.
government, not only without authority of law, but in express violation of law and against its positive provisions, and is consequently null and void, and passes no title whatever. . It is further claimed that the times limited by the second section Df the act of 1804 for making locations and returns of survey have been, by several successive acts of congress, renewed and extended. By the act of July 7, 1838, (5 St. at Large, 262,) the time was extended to August 10, 1840. That act provides that"All entries and surveys which may have heretofore been made within the said reservation, in satisfaction of any such warrants, on lalld& not previously entered or surveyed, or 011 lands not prohibitad from entry and survey, shall be held good and valid, any omission heretofore to extend the time for the making of roch entries and rorveys to the contrary notwithstanding."
This act of 1838 was revived and continued in force on August 19, 1841, (5 St. at Large, 449,) until January 1,1844; in 1846, (9 St. at Large, 41,) until January 1, 1848; on July 5, 1848, (9 St. at Large, 245,) until January 1, 1850; and on February 20, 1850, (9 St. at Large, 420,) until January 1, 1852. This is the last act by which the time was extended or authority given for making locations of Virginia military warrants on any lands within the reservation. The aet of 3, 1855, (10 St. at Large, 701,) granted a further time of two years, after the passage of that act, within which it should be lawful to make and return surveys and warrants, or certified copies of warrants, to the general land-office, of lands which had, prior to Janua1'Y 1, 1852, been entered within the Virginia military district; but this act does not affect lands which had been both entered and surveyed prior to January 1,1852, And the most recent enactment on the subject, the act of May 27,1880, provides (section 2,) that "all legal surveys returned to the land-office on or before March 3, 1857, on entries made on or before January 1, 1852, and founded on unsatisfied Virginia military continental warrants, are hereby declared valid." The result is that all lands in the Virginia military district, entered and surveyed prior to January 1, 1852, of which, however, at that date, the surveys and warrants, or copies thereof, had not been returned to the general landoffice, were, and have ever since continued to be, released from all ,claim by virtue of such entry, surveys, and warrants; and that any patent issued therefor, purporting to be, in pursuance of such extinguished claim, is without authority of law, in violation of its express provisions, and null and void. Such, at least, is the nature and necessary extent of the claim of the complainant, and this review of the legifjlation on the subject on which that claim is based, has been made
not so much for the purpose of a decision as to its effect upon the validity of the defendant's patent,as to show, as it clearly does, that, if that effect is what the complainant claims, then it also takes from the complainant any right to insist that hehas acquired and is now invested with any estate in the lands by virtue of his tax deed, or any grant, actual or presumed, from the defendant, of his rights under the entry and survey. All such' rights, on both parts, have equally come to naught by the same supposition. There is, therefore, no ground in equity for maintaining the present bill as a bill to quiet the complainant's title. It is argued, however, that t1).is bill may be maintained upon the provisions of section 5n9 Df the Revised Statutes of Ohio. It reads as follows :
"An action may be brought by a person in possession by himself or tenant <)f real plOperty, against any person who claims an estate therein adverse to him, for the purpose of determining such adverse estate or interest." .
Prior to the adoption of this provision in the Code of Civil Precedure in this state, and under the provisions of a statute regulating the practice in chancery, it was held by the supreme court of Ohio that to maintain a bill quia timet it was necessary that the complainant should have both the legal title and the actual possession of the real estate, (Douglas v. Scott, 5 Ohio, 196; Clark v. HUbbard, 8 Ohio, 385; Thoma.s v. White, 2 Ohio St. 540;) although in Buchanan v. Roy'. Lessee, 2 Ohio St. 267, it was held that it might be maintained if the complainant had acquired a valid title merely by the length of his possession. In the case of Ellisthorpe v. Buck, 17 Ohio St. 72, which arose upon the provision now in force, a bill was filed to establish a disputed boundary, and thEl objection was made that the defendant had been denied the right to a trial by jury. The objection was overruled on the ground that the plaintiff could not have obtained the relief sought by an action for the recovery of real property, and that the remedy provided by this provision, so far as applied to that case, was in harmony with the more ancient rules of equity jurisprudence, which gave relief, where the recovery of possession is not asked, in cases . where the controversy arises out of a confusion of boundaries. In Collins v. Collins, 19 Ohio St. 470, the court, speaking by Welch, J., said:
"As a general rule t1le bill of peace ould no' Ie rra'n'a'ned unless the plainti ff had first establ shed his right at j;, On' (xceptil n to this general rule was where the par ies were so ImmelOUi, or s ·t up tl eir sr'v, ral claims in such form, as to render a trial 0;' the right at law illlpulticable. Another
exception contended for, but gl;lnerally disallowed, by the chancellor, was where the l?laintiff was in possession and the defendant failed to bring any action; the plaintiff having, therefore, no opportunity to establish his right at law. As r understand the decisio'nof this court, in Douglas v. McCoy, 5 Ohio, 522, it was to supply this precise omission thlit our several statutory provisions on the subject were enacted. The'se provisions are found in the acts of l81O, 1824,'alld 1831, (Chase's St. 687, 1278, ;and 1697,) substantially as in the, 557th section of the Code" with the differem:e that by the latter session alone, instead of legal title and possession, is declared to be a sufficient basis for the action. The only effect of this provision in the Code is to substitute tbe plaintiff's possession for the' establishment of his right by trials at law. In all other essentials the remedy by bill of peace remains the same as the old practice." In the most recent case in the Ohio Reports on the question (Rhea v. Dick, 84 Ohio St. 420) it was decided that under an amendment which affected the original section, a ,person in possession might compel a. litigation as to his title with an adversary claiming only an estate in remainder or reversion, or contingent upon a future event, and not adverse to the plajntiff's right to present possession. And the court quotes with approval from the opinion of the supreme court of'California in the case of Joyce v, McAvoy, 81 Cal. 274-,in construing a similar statute of that state, as follows: "Tbestatute giviIlg this right of action to the party in possession does not confine the remedy to the case of an adverse claimant setting up a legal title, or even an equitable title; bqt the act intended to embrace every de/Scription of claim whereby the plaintiff might be deprived of the property, or its title clouded, or its value depreciated, or Whereby the plaintiff might be. incommoded or damnified by the assertion of an outstanding title already held orto grow out of adverse pretension. The plaintiff has the right 'to be quieted in his title whenever any claim is made to real estate of which he is in possessio)1, the effect of which claim migl1t be litigation, or loss to him of the property." Iuthe same case from which this citation is taken (Rhea v. Dick) the supreme cpurt of Ohio add a.s follows: " Cases may arise under our statute in which the parties may have a constitutional right to have the issues of fact tried by a jury. Shoul(l such cases such trial, either in the case, or by arise, the court is competent to requiring a separate action to be brought for the purpose before the rendition of the final decree." The case of Stark v. Starrs, 6 Wall. 402, was a suit in equity, begun in the state courts of Oregon, upon a similar statute, providingthat "any person in possession of real property may maintain a snit in equity aga.lnst another who claims an estate .or interest therein adverse to him, for the purpose of detelimining such claim, estate, or
CHAMBERI;.:AIN V. MARSHUI;..
interest." In cPIDnlentingon and construing that enactment"Mr. Justice Field said.: I . "This statute a jurisdiction beyond that ordinarily ex.ercised by 'Courts of equity, to afford relief in the quieting of title and possession·()f real property. By the ordinary jurisdiction of those courts a suit woul,d npt lie for that purpose'unless the possession of the plaintiff had been previously disturbed by legal ptoceedings on the part of the defendant, and the right bf the plaintiff bee!i Sustained by successive jUdgments in his favor.. . SheJ1ley v. Rangely, Davies, 242; Droonshe v. Newenham, 2 Sch. & Lef. 208; Curtis v. SutteJ';15'Cal. 257. · '" · By the statute in question it is Unnecessary, in order tlhibtain this interposition of equity, for the party in possession to delay his suit until his possession has been disturbed by legal proceedings,and in tqeseproceedings has passed in his favor. It is sufficientthat partyo.ut of possession claims an estate 9r in propeftyadverse to him. ; lIe then at once commence his suitiandrequire the nature and character 'Of such adverse estate or interest to be set forth and subjected. to judicial investigation and determination, and that the tight of possession, as between him and the claimant, shall be forever quieted. We do not, however, understand t!)at the naked possession of is . sufficient to authorize him to institute ,the ;and require an of the estate onhe adverse claimant, though the language of the s1;&tute is that ·any person in possession by himself or may maintain' the suit. .His possession must beacC'ompanied with a claim of tight,-tbatts, must1>e upon tltle,legal or equitable;"-"-and such claim or title must be ited by the proofs, and perhaps in the pleading's also, before the adverse claimant can be required to produce ,the upon which be rests· his claim of an adverse estate or interest."
In that case the plaintiff's title consisted of a patent purporting to have been granted by the United States.. From a,'c6nsideratidn of the laws in force applicable to the!case, the court detettninedthat the patent was void, (til having been issued without authority of Mr. Justice Field then prooeeds as follows: .. His position (the plaintiff's) is, therefore, reduced to that of a mere possessor without title. Such is entirely insufficient to justify the interposition of equity for the determination of the defendant's title, even under the very liberal a.ct of Oregon.' The plaintiff must first show in himself some right, legal or equitable, in :the premises before he can call inquestiv,ll the validity of the title of the defendant." have already seen,is in a similar . The compIair;tant in this. case, eategory. His denial of the validity of the defendant's claim of title takes frombimself all title which otherwise he mightclaim,except based upon mere nalredpossession. The remedy given by the section of the Revised Statutes of Ohio present consideration. is action':' meaning tho
civil action of that code which has taken the place of all common law actions and the suit by bill in chancery. At the same time, the distinction in the substance of common law and equitable rights is In Dixon v. Caldwell, 15 Ohio St. 413, it is said: still
"The distinction between legal and equitable rights exists in the subjects to which they relate, and is not affected by the form or mode of procedure that may be prescribed for their enforcement. The Cqlie abolished the distinctiOn between actions a.t law and snits in equity, and .substituted in their place Olle form of action; yet the rights and lilibilities ,of parties, as distinguished f<'om the mode of procedure, remain the ,same since, as before, the adoption of the Code." .
To the Bame effect is Chinn v. Trustees, 82 Ohio st. !36. In Hager v. Reed, 110h,io St. cqprt held that the actiop of the Code will be regarded and as a. civil actionat lawora civil.action in chancery, according as the facts alleged and the relief proper shall determine. While, therefore, there may be no reason why the remedies, although new, given by this statute may not be enforced in the courts of the United States, there stilI rem,ains, in each case, the question whether it shaUbe by action atlaw or suit in equity; for in these courts the formal distinction in procedure is maintained. Indeed, there are fundamental constitutional reasons which require that common-law rights of action' shall not be transferred to the jurisdiction of chancery process. While it may be true, therefore, that section 5779 of the R.evised Statutes of Ohio would authorize the complainant; under the circumstances shown in this case, to commence an action for the purpose of determining the adverse estate or interest in the land in controversy claimed by the defendant, the . question whether that action shall be by bill in chancery on the equity side of the court, must depend on the other question, whether he has or has not a complete and adequate remedy at law. If the rights in controversy are legal rights as distinguished from equitable, and if there are no considerations of an equitable nature applicable to the case, and which it is necessary to apply in order to prevent a failure of justice, then the conclusion seems to be required that the remedy must be sought by an action at law, and not by a suit in equity. In the present case there seems to be no necessity for a resort to equity, and no special considerations to justify it. The defendant had already brought his action at law to try the very matters the complainant seeks to put in issue in this suit; so that there was no
CHAMBERLHN V. MARSHALL.
danger- of injury to the plaintiff, in apprehended loss of evidence or otherwise, from any unreasonable or unconscientious delay on the part of the defendant. The questions to be decided are questions of law, and every consideration urged, or that can be urged, in this form' of proceedings, will be equally available in the defence of the pending action at law. If by reason of the acts of congress which have been cited, and the facts admitted in respect to the entry and survey of Robert Marshall, the patent issued to his heir at law in 1878 is null and void, as claimed, then that patent, on which alone the defendant's title at law rests, will be of no avail as a ground for the recovery of the possession of the land in the action brought for that purpose. In Simmons v. Wagner, 101 U. S. 260, the supreme court of the United States decided that a patent issued without authority of law was void, and could not be used as evidence in ejectment, even against one in possession without title. The chief justice said in that case:
"The sale to Macke and patent thereon to Simmons, more than 30 years afterwards, were null and void, and conveyed no title as against Russell 'and his assigns. It is 01 no consequence whether the assignees of Russell could get d patent in their own names or not. After the certificate issued the lands were no longer a part of the public domain, and the authority of the officers of the government to grant them, otherwise than to him or some persom holding his rights, was gone. The question is not whether Wagner, if he was out of possession, could 1'ecover in, ejectment 'lipan the Ge1'tificate, but whether Simmons can recove?' as against him. He is in a situation to avail himself of the weakness of the title of his adversary, and need not assert his own."
In Polk's Lessee v. Wendell, 9 Cranch, 99, Chief Justice Marshall
This doctrine was reaffirmed in the case between the same parties in 5 Wheat. 303. The decision in Hoojnagle v. Anderson, 7 Wheat. 212, is not inconsistent with this doctrine; for in that case the patent was not void for want of power to issue it, but voidable only for irregularities in the exercise of the power. In Ladiga v. Roland, 2 How. 590, the court said:
"The president could give no such power, or authorize the officers of the land-office to issue patents on such sales; they are as void as the sales, by reason of their collision with the treaty." ,
In V. S. v. Stone, 2 Wall. 535, Mr. Justice Grier said:
"Patent$ate sometimes issued unadvisedly or by mistake, when the officer has no authority ill law to grant them, or when another party has a higher equity and should have patent. In such cases ,courts of law will . pronounce them The pa.tent is but ,evidence of a grant, and the officer who issues it acts ministerially and not judicially. If he issues a patent for land reserved from sale by law" such patent is void for want of authority."
the other hand, if the r patent is valid at law, but voidable in eq,uity, it nlust be by reasoli, of Bome'superior equity on the part of the complainant that .entitles him to charge it with a 'trust in his favor,odo restrain the defendant from an inequitable use of it, to his injury; but the complainant assertsuone such now in this proceeding, and insists on treating it as utterly any legal force whatever. If the complainant should admit that the effect of the patent was to put the legal title' in the defendant, aHd allege grounds whereby it would enure to his benefit, or grounds on which it should be cancelled as having been obtained in' fraud of his equitable rights, there would be place for the exercise of equitable jurisdiction; but the controversy all he makes it, on the bill and proof, is a contest between cllJ,imspf, a purely legll.l Such a is only to be settled in a court of law; according to. the principles and methods and under the.guarantiesof the common law. n follows that the bill must be dismissed; bitt, of course, without prejudice to the rights of either capable of being enforced in the pending action at law, and als.owithout prejudice to the complainant's right to file a bill in equity hereafter, in the event it should be in the action at law that tne defendant's patent is valid to pass to him the legal title, to charge him as trustee, and compel a conveyance on any equitable ground the complainant may be able to establish.
See F'lUI.veZZ v. H'ughes, supra.
anTE OF DELAWARE
l:)TATE OF DELA.WAREV. EMERSON and others.
(Circuit Court, D. Delaware. June 22,1881.)
CRDONAL LAW-FEDERAL OFFICERS-REMOVAL OF CUEs-REV.
The state authorities are the proper parties to continue the prosecution of officers of the United: States, against whom a prosecution was commenced in a state court for an act done under the provisions of title 26, co The Ele.ctive Franc\1ise," of the Revised Statutes, and removed by them, under the provillions or-section 6430£ the same statutes, to the circuit court of the United States.
2. DU'l'IESOF UNITED STATES ATTORNEYS.
It is the duty of the attorneys of the United States to as counsel for such defenclants. REv. ST. § 643, CONSTRUED. Section 643 of the Revised Statutes contemplates a change of tribunal, not of prosecuting officers
BRADFORD, D. J. Arthur Emerson, Artemas Wilhelm, William J. Blackburn, John Blackburn, Jacob B. Smith, and Samuel Coyle were indicted at the November term of the "general sessions of the peace and jail delivery" of Delaware, sitting in and for New Castle county, for resisting certain special state officers appointed to keep the peace at an election for a representative in congress of the United States of America. Indictments were framed by the attorney general of the state, and true bills found by the grand jury of the state. These defendants were deputy marshals of the United States, authorized to act under the provisions of the Revised Statutes to be found in section Under the provisions of the said 2022, p. 556, (2d Ed.) Rev. St. Revised Statutes, § 643, they were entitled to have their suits or courts cases transferred for arbitrament and' final decision from where the indictments were pending to the circuit court -of the United States, and accordingly the requisite steps were taken by the United States attorney to accomplish that result. The said suits being thus transferred, and the defendants ready with their witnesses to proceed to trial, demanded (on motion by the United States attorney) that these cases be called, and either be proceeded with or that they be dismissed. The state of Delaware declined to take any part in the trial, and no authorized person appeared on behalf of the state. The United States attorney had no right or power to prosecute the pleas of the state, and not only so, but he considered himself counsel for these defendants; and he did this on a careful construction of the statute, of its meaning, spirit, and purposes, and was so directed to consider himself their counsel by the attorney general of the United