43 F. 339 -

K'CONNAUGHY tI.PENNOYEB.

839

tbere is no,ground for equitable relief or jurisdiction. But this patent is a cloud upon the complainant's title, which it is entitled to have r&moved. The existenpe of the patent gives color of title and is recognized by the land department. Its existence embarrasses the assertion of complainant's right, and pl'eveI;lts.it fram getting a patent to the same land, to which it is entitled. These circumstances constitute ground for equitable relief. The remedy at law is not equally adequate and complete. Van Wyck v. Knevala, 106 U. S. 370, 1 Sup. Ct. Rep. 336 j PW,ey v. Huggins, 15 Cal. 128. Let there be a decree for complainant, in pursuance of the prayer of bill, adjudging respondent's title to be void and annulling it; that there- be a perpetual injunction against. his using it, or setting up any claim of title or right under it, and that he convey to the oomplainaJlt any right he have, or claim to have,under it..

McCoNNAUGSY fl. PEmiOYER It

41.

(DWtric& COIIII't,D. Oregon. August 18, 1890.)

L CLot7D ON '1'rrLB. A reBale and QOnveyance of a tract of swamp land under the act of 18'18, belore BOld by the state, under the 80t of 1870, on the K\'ound that it had reverted to the state for the fallure to pay the 10 per centum of the purchase price within the time req uired by law, would OllItaclOlld on the title of the purchaser or biB aulgnee. .l undor.tb.e act of 1870. .
.. 1l0'LTlPi.I<lITT OJ'BUITB·..

The' prevention of amultiplicity of Buits Ii an acknowledged head ofeq.Uity juriidlc\iOn, and thiB suit is clearly maintainable on that ground. '
STATE.

L

AerIoN

ThiSiB not a suit against the state of Oregon or ita authorized agentaor representatives, but against the defllndanta, claiming to act 8a Buch, but without' authorlty,oflaw. The cases of In Re.AyerB,123 U. S. «8, 8 Bup. Ct. Rep. 164, and Hn!,.. T. Louiafana, 134 U. S. 1, 10 Sup. eli. Rep. 504, considetecl and distinguillhedtrolD thlll,

(8r1UahUl

biI· 'the COUf't.)

, In Equity. Bill for injunction.

Mr. Ohar1JU B. Bellinger,for plaintiff.

Mr. Earl 0. Bmnaugh, fordefendantB·

.DEADY, J. On the application of the defendaniB a rehearing".. lowed in this case. · .... . the case QrHa'1l8 v. Louisiana, 134 U. B.l, 10 Sup. cited by <:ounsel for defendant not referred not at hand, 01;1 the. former hearing. '. ' On examination, the decfsion was found not to beat all in poil).t, and it by counsel." . .. .. ' .. . ..' , Briefly, the was . A of lpuisillnasued the' amount of certain' coupons amiexell' to 'the bonds thereof. bQllds were issueQ il). and by anamendIl)..ent to the con&titutiOD Qftha,t,year ,rleclRredvalid 'CoIltractsbetween the an.1i, Ule holders thereof. the Qf ,1879' · payw,ent ',' of· :i.',' ',,) ,,' '".".. ,."" ' .. -: .: -"
· . ' · A \ ·· , · · ' , , ." . "

840
3

FEDERAl. REPORTER,

vol. 43.

repudiated. The eleventh amendment does not prohibit suit in the national courts againsta state by a citizen thereof, arid 'the judicial powers of the United States extend to all cases arising under the constitution or laws of the Unitl'ld States, (Oonst. art. 3, § 2,) which jurisdiction is conferred upon the circuit courts by section 1 of the Act of 1875, (18 St. 470.) . 80 the plaintiff brought his action against the state, as one arising tinderth:e eonstitutionof the United States, which forbids a state to "pass a law impairing the obligation of contracts." The'case :was a new one, the question involved never ha'Ting been before the cOurt. It was held that a suit arising under the constitution iifthe: United 'States cannot be maintained against a state by a citizen its consent. thereof, This conclusion rests, in the,opinion of the court, on the general doctrine that a state is not suable, except with its own consent, and therefore the grant of judicial powedotheUnited States, though in language extending to all cases arising under the constitution thereof, must be construed as not irlCluding:a ease'against. a non-conSenting state. But Mr. Justipe B:a,ADLEY, who delivwed tlle of the court, in conclusion took bare to say; (page 20; 134 'S. ;atid p'hge 509, 10 Sup. Ct, ReR';) ., ...' . ' . ' ." '·. ', "" ,.+' ,.,' . < , ' ;;;, :maybeproper to iIthough the obligatioosiof aatate rest for upon its honor and good faith, and cannot be made the subject of judicial cognizance Unless state consents to be sued. or comes itself into court. yet. rigbtsare made by &.state, they',carlhot be wantohly invadea. Wbilst the state cannot be by suit to,'perform .its contracts, any attempt on its. part to violate property or rights. acquired under j';ldiciall'y resisted; and. any law impatring.the obligation of u,nder WhICh sucb property or fights held IS vmd, and power. lesato affect .their,enjoyment." " ,e: . Now, the case under consideration is clearly thi,S category. While the purchaser of this property may not be' able to sue the state to compel a specific performance of its 'contract tocOl1Vey the same to him when he is entitled thereto "oIl "reclamation" andpayinent of the balance of the purchase price, because a ., state,"in the language ofthe "calJnot"be com,pellecl tp perform its contrad$tyet the biis'aliettdy acquIred' an ihterest· in t11is land mider His contract with stat!",apda.right to the posse,gsion and .of the Same in the mean time; 'and {my attempt by the state or its ageritsto deprive him of such interest or right, or toit}lpairthevalue of contrary to such contract, may be judicially resisted. And thae is what the plaintifl"seeks tcf8dbythis suit. ' ,,'. ,"", : ".9P the tp shdwt:hll.t 'tIns case came Wlthm the ruhng In Re Ayers, 123 4;43, Sup. Ot. Rep. 164·.... " ' . , . . . . . . \ ','" , .. ..' ., .. · But, rea!ly ,otller·..Tp.e ,co,nrh In that·cllee,., aft,el' .statmg the· general rule. as laId d9wnm Sil'uthern',"-tr.7U;'S.52; 6 Sup:Ct. Rep. 608, that a 'stiit 'alhtirlstthe om;

M'CONNAUGRY

v.

PENNOYEB.

341

eersof a state to compe1them to do and perform certain acts, which, when done and performE:'Q, constitute a performance of an alleged contract by such state, is a suit against the state, say, (page 502, 123 U. S., and page 181, 8 Sup. Ct. Rep.:) "The converse of this proposition must be equally true. because it is contained in it; that is. a bill. the object of which is by injunction indirectly to compel the specific performance of the contract. byforbiddinK all those IIcts and doings which constitute breaches of the contract. must also necessarily be a suit against the state,' Now, the plaintiff in this case is not seeking by this suit to compel the performance, directly or indirectly, of any contract with the state. On the sale of this land under the aot of 1870 the purchaser or his assignee became entitled, on payment of the purchase price and proof of reclamation within the time prescribed, toa conveyance from the state. 'Iftb.is were a suit to compel the specific performance of so much of that contract as remains unperformed by the state,-that is, the.execu:" tioJ;i by:the&e defendants of a conveyance of the land tq theplaintiff,-it would. be a suit against the state, although not named in the record. ',A decree for the plaintiff in,such a case would require the defendants to do and perform an act which they could only do as the agents and reptesentatlvesOf the state, and therefore the 'court would be without jurisdiction. .'By,t}jis suit the plaintiff is not seeking to compel the defendants to do or l)erform any act. but rather to prevent their doing an act injurious to his right and interest in this property, without authority of law or the state, and contrary to its express contract. If the legislature had authorized the defendants to cause suit to be brought against the purchasers under the act of 1870 to declare the, contracts of sale void for want of compliance with the conditions subsequent" and the plaintiff should bring a suit to enjoin the defendants from , ing any suit against him, alleging that he was not in default as to any of said conditions, the case, would be parallel with In re Ayer8, and the answer would be the. same in each case; this is a suit againsUhe defendants, as agents and representatives of the s.tate, to prevent the state from doing a 1awful act, namely, to bring a suit to set aside a sale oLits lands, which it claims ha.sb,ecome forfeit for want ofcompliance withthe,terms of the sale, and in which the plaintiff may allege and show a compliance defeat the suit. with the On the rehearing no question was made but that the legislation under which the· defendants are acting in making sales of the plaintiff's land is unconstitutional and void, and therefore, furnishes no justification for their conduct. , On the it was not seriously questioned, that equity would grant the relief SQughtby the ;plaintiff in this case if,the suit was not one against the state, on the ground of preventing a cloud being cast on his title; 'and alSO' of preventing a multiplic.ity of suits:" ' ' . ,:; ,On this PiQint COUl)st:! at the rehearing contended himse1f:with
It

342

FEDERAL REPORTER.

voL 48:

thififthedefendants, were not authorized to sell thIs land' ,their deeds . th'ereto, w.oUld ,be void on their {ace; and therefore :would not. cast a cloud on'anythihg;', ,' But the case assumed by counsel is riot this caeeiby aliY tneans, for the invalidity defendaI\.ts' deeds,would not appear on their face, if at all. The defendants· ,have the genel'fLland exclusive authority to dispose of the swatnp Ialldsofthe state, including those which have reverted thereto for delinquency under section 9 of the Act' of 1878. The plaintiff; tooverdornethe apparent legal title which the ,aaleand conveyance of his land, would vest· in, the' defendants' grantee, .would be obliged to resort toextrinsi9 evidence to show that this land had been duly bargaineq and sold to his grantor; and: had not reverted to the state under section 9 of the Act of 1878, and therefore the second sale was unau/ thorized and wrongful. , This constitutes aclatid on title within aU the authorities; and particularly wherevasin this plaintiff's interest is equitable in its miture.Pom; Eq. JUT. §§: 1398, 1399; Ooul8on v. Portland, 1 Deady, 489. And an .injunction will issue to prevent acts which would create a cloud upon title, under the same rules that control in a,suit to remove such cloud'. Id. § 1345., The prevention of a multiplicity of suits is a recognized head of equity ' jurisdiction. Id. § 243 et seq. "Thedefehdanls are not now: authorized to dispose of swamp land in larger quantities than 320 acres to any one person, and that ma)' be sold " outright, aria 'a: conveyance made to the purchaser at once. The disposition of this large tract of landdnthis manner may involve at least different'perSons. Hsuch, sales are allowed to be 150 made, the plRinti:fl' wiJ.lbecompelled,inthe assertiQnand maintenance of!his right. tobringaseparate'sllit:in' equity against each of such purto quiet'title or. to charge him. asa trustee of the legal title for the the plaintiff, tile owner ofithe equitable .estate; This'presents a,verystrong:oaBe lof:a multiplicity of suits, that may be, this :suit, iIi wMchthe whole matter may be considered, and determined;a;t once, and thu8;BaVe expense and delay to aU persons, concerned. ',;';" ,:'j: ' je". , ,,"This 'suit' iSirveryproperly .blIoughtin this court,independentof the diverse citizenship of turns altogether on fedemlques-' tions, which must ultimately'f>esettdedby thejudgment'ofthe supreme court of tlieUiIited States. "r ; These qu'estions are,: , (1) Does::tbe: 1egislation, under, which ,the defendants aieipToG9edingto 'sdl,tl:le ,plahitiffl'a !land -impair the obligation of his contract with the state? and (2) Is this a suit against the defendants ai:i:ndiVidualw-ropg-rloers, claiming Vr:represent thestllte l but without au:thority against' tnem as the :a-uth:orized representatives oi'rthe' state? ,! ;; " , "'i)'" , :, · 'ii,;: And my judgment still is that Btiid does impair the obliga..i!j tioD Qf the18tat8's'cOl1tract'j and that this is not a suit against the defend-

MARSHALL l'. WHITNEY·

843

..allts acting as the authorized agents and representatives of the state, but as individual wrong-doers, acting under an unconstitutional act of the legislature, which is not and cannot bea law of the state, and therefore is no justification for the conduct complained of.

MAR8RALL 17. WHITNEY

eta!.

(Cirm.tU Court,'D. lndtana. July 80,1800.)

1.

lI'B.lVDVLBn OONVEYANOBS-Husum> AND WIlI'B.

Where a debtor buys land which he caU8GS to be conveyed to his wife in alleged lJatisfaction of a debt Qne from him to her, but with the intentiou of putting lliB ,·lIroPtlrty beyond reach creditorllt ¥dllheagreell at the time to mortgage the land for hill benefit, the transaction ill rraudulent as to hill creditors.

'.

.'.

I.

·

BUlIBAND AND WIl'E-DOWElI-FRAUDULBNT CONVEYANOEIl.

sUch incbOiPote interest shall; unless tbe judgment othetWise direct, immediately be.. come vested as if her husband were dead, does not apply to land to whicb the hU&band n!3ver luLd title, and which has. bean sold on executio.. against him only because' it· was bought with his money and conveyed to' his Wifo to defraud bla' Creditors. .

In which any married woman has an incb,oate interest by virtue of her

Rev. St. Ind. 1881,' § 2508, which provides that in all cases of jndicia188les of land

,In Equity. Bill to quiet title. ¥c]JQtudd, Butler&:Snow and '1'. W. Harpf/f, for complainant
Wwad"" &:WiUiams, for defendant.

,j'

. '.

WOODS, J. Whitney and Currier recovered in this court a judgment .in attachment against James A. Marshall, on the ground that he had .fraudulently disposed of his property with intent to hinder and delay his, creditors. Mrs. Marshall prosecutes this suit to quiet her.title in certain real estate, upon which the attachment was levied, against the ;thl'l judgment rendered, on the ground that she was a good-faith purchaser for value of. the property, which she asserts was purchased by her husband, and upon his procurement conveyed. to her in paymentand discharge ofa debt which. he owed her. The master, speaking to this' point, concedes the right of a husband to pay. an indebtedness to his wife to other creditors, but says: ".While the law allows this, it requires, in fairness to other creditors ofthe hus'band, that transactions between husband and wife, when .she .claims a preference, should be viewed with suspicion, and that her claim as a creditor, * * * should be made perfectly clear;" and to this statement of:the rule of evidence exception istaken,counsel insisting that in respect to the transactions ofhusband and wife, as in respect to the dealings of., others, the presumptions are in favor of honesty and, fairness. Whether the proposition of the master is precisely. accurate I do n,ot find it necessary to decide. In' his support, see Waiti'Fraud. Conv.§§ 300, 3Gl j and cases cited. In this case it is shown, :li.ndnot setiously,or directly denied, that the intention ofthe debtor in. disposing of, his prop-

FEDERAL REPORTER,

vol. 43.

erty, and in' taking the title to that in question in the name, of the plaintiff,was, to put his leviable goods beyond the reach of creditors; and, this being so, it ,was certainly proper that any claim asserted, by or in behalf of the wife, in hostility to the creditors whom the husband was seeking to defraud, should have been received by the master with a degree of caution and hesitation amounting to suspicion. In respect to the question whether the plaintiff was a creditor of her husband to the extent asserted, the master has reported against her, and that, when she accepted cognizant of the fraud which the the conveyance madetq l:i,er," she court adjudged her husband guilty of in procuring this conveyance to be made to her;" and the circumstances in, evidence tending to the support of this conclusion are such as to forbid interference by the court to set ,it aaide.If il,1 fact there was as much due her as cla:inied, it was ra:. and extraordinary. The extraordinary sometimes happens, but in this instance the proof of it was not SUch as to make belief compulsory. " , . ' . "', But ifitwere conceded that the debt was as large as stated, there is one fact inproof,testified to'byboth Mr. and Mrs. Marshall, 'which shows,thatthe property was conveyed to her, not in final and effective butoll1yin colornble payment,__totheextel,1t at least of of the indebtedness. In answer to the question whether she "had any intention at the time of hindering, cheating, or defrauding any creditors, of Mr. Marshall in taking this conveyance,» she said: "No, sir; there, wlti!nlj; anything of the kind ever thought of, or ever mentioned, because I agreed with him that, if he would deed me this property, that in case he could not get through with his indebtedness I would allow him him to·takea:mortgage u.pon this vacant lot [a part of the.property in question] of 81,000; and Mr. Balue had already negotiated a loan on this lot, and knew where he could get this money; and, of course,ifit had not been lltj:ached, in a few days a loan would have been made on this lot. Ofoourse there was a mortgage on the other [pa.rt of the] property, and there could not be anything done with it,and I was willing to db that in order to get through." And when asked on cross-examination if she did not know that she could not make a loan on her property to apply on her husband's debts, she answered: "I could make the loan, and turn the money over to him to pay his debts. That waS the agreemeut." The testimony of Mr. Marshall to the same effect, and they both represent that the $1,000 which it was proposed to raise he intended in a certain contingency to pr y to Whitney . and Currier; but whether he would have done that ,or not would havt: been a matter of mere choice on his part. The essential featurE! of the transaction to be considered here is that the plaintiff's right to hold this property against the creditors of her·husband depends on the truth of the assertion that she received it:in:payment of'what was due her; but, instead.:of that being the fact, a mereshuffie was made, by which, to the extent of $1,000, at least, she took title,< not for her own benefit, but for the benefit of her husband, to do with it as heshouldplellSe; and that his purposewlis fraUliulentj if not conceded, is not ,to be denied.

MARSHALL fl. WHITNEY.

345

is a resident householder an exemption of property from sale upon exe-

"Another question remains. The statutes ofIndianaalIow a debtor who

<mtion or attachment to the amount of $600 in value, and to the wife of one whose real estate, whether his title be legal or equitable, is sold at judicial sale, the interest -which had before been only inchoate becomes absolute and vested, (Revision 1881, §§ 704-715, 2491, 2508;) and .on the strength of these provisions, as construed and interpreted by the supreme court of the state, it is contended that, if the property in suit should be declared subject to sale on the attachment as the property of her husband, she will be entitled, in any view of the facts or law, to onethird of the property in her own right as wife, and out of the proceeds of the sale to the sum of $600, exempted to the debtor, and that, the remainder of the property being fully covered by incumbrances which were upon it when purchased by her husband, and subject to which the conveyance to her was made, there remains nothing of value which creditors can reach, and consequently, as was clecided in Brigham v. Hubbard, 115 Ind. 474, 17 N. E. Rep. 920, there is no ground for equitable interference in behalf of creditors. If this were conceded, it would not follow that the plaintiff should have the aid of a court of equity to confirm a title obtained as hers was. The proposition, however, is not conceded. Mr. Marshall is not now a resident householder, but dwells in another state, and connot claim an exemption; and, if the question is referable to the date of the conveyance, (which seems tome not allowable under the circumstances,) it does not appear that he did 110t then have money or other valuables, not subject to seizure on execution, exceeding the exemption allowed by law. 'Vbether or not the plaintiff can claim one-third of this property, as wife of the debtor, if it shall be sold upon the attachment against bim, under section 2508 of the Revision, is a more important and perhaps more difficult question. The language of the provision, so far as important here, is: "That in all cases of jlidicial sales of real property, in which any married woman has an inchoate interest by virtue of her marriage. where the inchoate interest is not directed by the jUdgment to be sold, or barred by virtue of such sale, such interest shall become absolute and vested in the wife in the $ame manner and to the same extent as such inchoate interest of a married woman now becomes absolute upon the death of her husband, whenever by virtue of said sale the legal title ot the husband in and to·such property shall become absolute and vested in the purchaser thereof." The inchoate right as declared and granted by another statute, (section 2491,) is given in lands in which the husband has only equitable interests, as well as those of which he has held the legal title, and in the can· veyance of which the wife has not joined. The supreme court, as the cases cited below will show, has put upon these statutes a broad and lib. eral construction, treating as within their spirit cases which are plainly enough not within their letter. Ketchmn v. Schicketanz, 73 Ind. 137 ; Law80n v. De Bolt, 78 Ind. 563; Leary v. Shaffer, 79 Ind. 1567; Hudson v. Evans, 81 Ind. 596; Keck v. Noble, 86 Ind. 1; Straughan v. White) 88

846
I

FEDERAL REPORTER,

vol.4S.

Ind.. 242;'Mattill v. Baas, 89 Ind. 220; Shelton v. Shelton, 94 Ind. 113; HinklJOn, Id. 395; Rupe"v. Hadley, 113 Ind. 416, 16 N. E. :Rep., '391;1 Gitizena' Bank v. Bolen, 121 Ind. 301, 23 E.Rep. 146. , $omeQf ithesecases go to the extent of holding that where a conveyance of the husband in which the wife has joined is set aside as fraudulent, anI} the land sold on execution ilgainst the husband, the wife takes an interest"aod.in some of them it is eo held in respect to lands in which the husband bad only an equitable, and not the legal, title; but in no case like. the one in hand bas it been beld that the wife can, upon sale gf the property, aesert a rigbt under this statute against a creditor who by attachment or execution or by means of a creditors' bill seizes lipon and subjects to sale in satisfaction of the husband's liability property of which he nevei' bad title, and in wbich the wife never had an inchoate rigbt, and which is subject to such sale only because it was purchased with his means,' and the title conveyed to another for the purpose of defrauding his creditors. There are expressions in some of the cases to the effect that,: if .:creditor elects to treat. a conveyance as void, he cannot say itls validJor any purpose; and if he elects to have property sold as the property of his debtorj he Qantlot dispute the legal consequences of the.factjan<lin legal' parlance it is quite common to speak of setting aside, fraudulent conveyances, and to treat the remedy granted to creditorsasgiveQ ·upon the theory that the conveyance was never made, or that the title wrongfully transferred had been reinvested in the debtor; and in cases where he· bad once held the title, this theory will otdinarily subserve the,ends of justice, but, ifapplied to this case, and others readily conceivable, it will lead to consequences too plainly wrong to admit of approval a court of conscience. A better and more effective theory of reliefiswell recognized in the books and opinions of the courts. Tbattheory: :reClognizes the validity .of such conveyances as between the immediate parties; and the creditor, by seeking .his remedy against the property, iI;lstead of estopping himself to deny I is compelled to fapt, and. to take his relief accordingly. In Stout v. 77 Io,d.e?S7t,ililocaile in whicr, there had been mesne conveyances between the fraudulent grantor and the defendant holder of the title, it is said: . :·'Thetlieor,.()ftbe action is not to annul the deeds and revest the title in the ol'iginaI grantor, but to convert tbe fraudulentgrantee into a trustee holding for thebenellt of- the injured creditol'R. Except 8S to creditors, the canveyance'isttalid, antlit-.Will not be interfered with furtber than necessary to secure their rights." . To the same effect, iseeLippincott Carriage 00., 34 Fed. Rep. 570. To hold the wife I in a case like this, entitled to take an interest as against attaching creditors, would be to make of the law itself an invitatiop to fraud. The: embarrassed and dishonest debtor would need only.to excbange all his possessions estate incumbered already' for two-thirds or ofits value, take the title in the name of his wife, Qnd bid defiance to his creditors. Perhaps. it will be said he. can, witb. out do the same thing by taking the incumbered title in his own name, and, when the .creditor levies upon and sells the property,
Man8U1'v.

MOORE fl. MILLER.

347

hjtve ,theiwife,.assert her right, and leave the creditor nothing of value beyond; the incumbrances. I am not ready to concede that the courts are powerless to give relief in such a case, upon proof that the investment 'filS made in' that way for the purpose, of defrauding creditors. The case in hand, however, is not like the one supposed, in which, the title having been in the husband, the wife's assertion of right would have support the letter of the law, if not in its spirit, while in this case the claim is entirely outside the letter of the statute, and has no support in its spirit or, in considerations of justice and fair dealing. Exceptions overruled.

MOORE fJ. MILLER

et ale

(Oircuit Court, B. D. CaZifornia. August 8, 1890.)
LlJIITATlON OJ' ACTIONS-RUNNING OJ' STA-Tun.

The ,statute of limitations begins to run against a suit to quleh UtJe·from the time the defendant takes possession of the land.

In Equity. F. B. Stratton and Jiinlayaon « Jiinlayson, for complainant. Mastick, Belcher « Mastick, for defendants. Ross, J. This iEl a bill in equity to quiet title to a certain tract of under. the provisions of section 738 of the Code of Civil Procedure of California, and by stipulation of counsel the sole point for decision is whether or not the suit is barred by the statute of limitations. The facts in relation to that question are conceded to be truly set out in the amended answer, and are, in substance, as follows: The land is a thirtysixth section, and was granted to the 8tate of California by the act of congress of March 3, 1853, and the title of the state thereto became complete and absolute August 6, 1855. On the 7th of April, 1874, the state issued its patents for the land to ODe Hewlett, and on April 17, 1874, Hewlett conveyed his interest therein to defendants, who thereupon and on that day entered into possession of the premises under claim of title, exclusive of other right, founding their claim upon the patents to Hewlett and the conveyance from him, and without any knowledge of any defect in that title; and at all times since they have had and maintained, and now have and maintain, actual, continuous, open, and notorious possession of the premises, claiming title thereto in good faith uoder said patents and conveyance, adversely to the state of California and to complainant and his grantors and predecessors in interest, and to the whole world; and during all of that time defendants had, and now have, the premises protected by a substantial inclosure, and have used, and still use, the same for pasturage. Complainant claims title under certain certificates of purchase issued by the state June 16, 1869, to one Porch and one Mardis, whose title, if any, is vested in complain-