Frey v. Willoughby

CALDWELL, Circuit Judge,

after stating the facts as above, delivered the opinion of the court.

Upon the averments of the complainants’ bill and the stipulation of the parties, a federal court of equity could not take cognizance of this suit, over the timely objection of the defendants that the complainants had a plain, adequate, and complete remedy at law. It is admitted that the defendants are in the actual possession of the land, claiming to have the legal title thereto. The complainants claim to be the owners in fee simple of seven-eights of the land. The title they set up and rely on is a legal title, and their remedy to recover the land against those in possession, claiming it by a paramount title, is by an action at law, and not by a bill in equity. The complainants’ remedy at law is plain, speedy, and adequate. There is no impediment to its assertion; and, where this is the case, one claiming to be the owner in fee of lands which are in the actual adverse possession of another cannot maintain a suit in equity in the federal court in the state of Yebraska, or in any other state, against the party in possession to recover the possession of the land, or to establish his title thereto. Sanders v. Devereux, 8 C. C. A. 629, 60 Fed. 311; Hipp v. Babin, 19 How. 271, 277; Whitehead v. Shattuck, 138 U. S. 146, 11 Sup. Ct. 276; Leighton v. Young, 10 U. S. App. 298, 3 C. C. A. 176, and 52 Fed. 439; Bigelow v. Chatterton, 10 U. S. App. 267, 280, 2 C. C. A. 402, and 51 Fed. 614.

The holder of the legal title, or one whose bill upon its face shows him to be such, cannot evade this rule, and deprive his adversary of his constitutional right of trial by jury, by alleging that the title of the defendant in possession, claiming to.own the fee, is a cloud upon his title, and asking to have it removed; or by alleging that the plaintiff and defendant are tenants- in common, and praying for a partition. The proper mode of removing the so-called “cloud” in such a case is by an action at law for the recovery of the land. If the plaintiff recovers in the action, the cloud is effectually dissipated. Yor can a tenant in common who is out of possession, and who has been disseised by his cotenant, who is in possession of the land, claiming title to the whole of it, maintain a bill for partition in the federal courts until he has established his right of possession by a suit at law. Sanders v. Devereux, supra, and cases cited. The rules that obtain where the plaintiff’s title is equitable, or the land” is vacant and unoccupied, have no application to this case, and need not be discussed. Vide Lamb v. Farrell, 21 Fed. 5. Whether, under the (Nebraska statute and the decisions of the supreme court of that state, a bill like this could be maintained in the courts of that state, we need not inquire; for neither a state statute nor the decisions of a state court can do away with the act of congress (section 72:>, Kev. St.) which declares that “suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate and complete remedy may be had at law,” or deprive a suitor in those courts of his right of trial by jury, secured to him by the seventh amendment to the constitution of the United States.

The decree of the circuit court is reversed, and the cause remanded, with directions to dismiss the bill at the complainants’ cost, without prejudice to their right to sue at law.