Metzgar v. McCoy , 105 F. 676 ( 1901 )

ACHESON, Circuit Judge.

Under the jurisdiction and practice in equity, independently of statute, to maintain a bill quia timet to remove a cloud upon the title to real estate, or a bill of peace; the plaintiff must show a clear legal title, as well as possession. Alexander v. Pendleton, 8 Cranch, 462, 3 L. Ed. 624; Orton v. Smith, 18 How. 263, 15 L. Ed. 393; Frost v. Spitley, 121 U. S. 552, 556, 7 Sup. Ct. 1129, 30 L. Ed. 1010, The bill here shows possession of brief duration in the plaintiffs, but falls far short of showing such a clear title in tliem as would justify the interference of a court of equity. The plaintiffs’ title has never been established at law. On the contrary, it appears that, in an action of ejectment in a court of competent jurisdiction brought by this defendant against parties in possession* of the land under whom the present plaintiffs claim, there was a verdict for the plaintiff therein, and a judgment in his favor. Thus, in the only trial at law concerning this land which has taken place, the verdict and judgment were against the title which the plaintiffs in this bill set up as the foundation of the relief sought by them. These plaintiffs took a conveyance from the defendants in that ejectment either pendente lite or after the adverse judgment was rendered, Clearly, the plaintiffs stand in the shoes of the defendants in the ejectment, and such possession of the land as they had when they filed their bill was at tbe mere sufferance of this defendant, who had a right to a writ of habere facias possessionem. Nothing is suggested in the bill against the defendant’s title which was not available as a defense in the action of ejectment. The judgment at law cannot be annulled or defeated by a court of equity upon tbe showing of this bill. Moreover, in any view that could be taken of the title of the plaintiffs, they are not remediless at law. Under tbe Pennsylvania act of March 8, 1889 (P. L. 11), as amended by the act of May 25, 1893 (P. L. 131), a party in possession of land upon application to the proper court of common pleas may obtain a rule upou a person not in possession who claims title to bring an action of ejectment within six months from the service of the rule, and on failure to comply with the rule the court is empowered and required to enter a final and conclusive judgment as between the parties. There must be judgment for the defendant upon tbe demurrer. Let a proper decree be drawn.