It has been the settled policy of this state to render titles secure, and to afford ample means of settling all disputes in relation to them. This policy finds expression in statutes of limitations, betterment acts, and acts curing defective acknowledgments; and in the judgments of the supreme court, expounding the jurisdiction of courts of equity to quiet titles, and to avert and remove clouds from titles. No statute has been passed in this state relating to the jurisdiction or practice of equity courts in cases like the one at bar, because the supreme court has steadily maintained that the jurisdiction was inherent, and the rules of practice adequate, without the aid of legislation. The federal courts have given effect to such statutes in other states. Clark v. Smith, 13 Pet. 195; Stark v. Starrs, 6 Wall. 402; Holland v. Challen, 110 U. S. 15; S. C. 3 Sup. Ct. Rep. 495.

The defendant insists that a court of equity has no inherent jurisdiction to remove clouds from title when the land is unoccupied. It is said such jurisdiction might be conferred by statute. It is conceded the federal court would give effect to such a statute, but it is denied that the settled rulings of the supreme court of a state maintaining the jurisdiction are equivalent to a statute conferring it, or that they are controlling in this court. Where the decisions of the supreme court of a state on the subject of titles to land, or the mode of acquiring or quieting titles thereto, are settled and uniform, they are accepted by the federal courts as conclusive evidence of the law of the state on that subject, and have a binding force as nearly equivalent to a positive statute as judicial decisions can have.

In a suit involving title to land, where the supreme court of the state had adopted a rule of decision applicable to the case, the supreme court of the United States said:

"In accordance with well-established principles in this court, we accept this uniform and stable body of judicial decision from the court of last resort of the state in which the property is situated, and in which the transactions that form the subject of this litigation took place, as conclusive testimony of the rule of action prescribed by the authorities of the state, as applicable to their interpretation and adjustment. We do not inquire whether a more suitable rule might not have been adopted, nor whether the arguments which led to its adoption were forcible or just. We receive the decision, having the character that are mentioned in the extract we have made from the opinion of the supreme court of Texas, as having a binding force almost equivalent to positive law." League v. Egery, 24 How. 264; Christy v. Pridgeon, 4 Wall. 196, 204; Beauregard v. City of New Orleans, 18 How 497

In Clark v. Smith, supra, the court say:

"Propriety and convenience suggest that the practice should not materially differ where the titles to land are the subject of investigation; and such is the constant course of the federal courts."

And in the same case it is said the federal courts in chancery will give effect to state legislation and state policy whenever it can be done without departing from what legitimately belongs to a court of chancery. But I do not rest the case on this ground alone. The

decisions of the supreme court of this state on this question are right in principle.

The action at law for the recovery of real property retains its possessory feature in this state and can only be brought against the person in possession. Ozark Land Co. v. Leonard, 20 FED. REP. 881.

All the authorities agree that equity has jurisdiction of a suit to quiet the title, or remove a cloud from the title, of one in actual possession, whether his title be legal or equitable; and the courts are all agreed as to the ground of this jurisdiction. It attaches because the remedy at law is inadequate. The law will lend its aid to those holding the legal title, and out of possession, to assail those who are in possession. But it will not aid one in possession, whether his title be legal or equitable; nor will it aid him, though out of possession, if his title be equitable, or the land unoccupied. Where the plaintiff is in possession, recourse is had to equity, not because there is some mysterious virtue in the fact of possession of property that clothes the possessor with the special privilege of having the controversies. in relation thereto tried in equity, but because he has no means of procuring the controversy to be tried at law. If a statute should be passed authorizing one in possession of land to bring a suit at law, against any one claiming it, to settle the title, "the jurisdiction in equity, if it did not cease as unwarranted, would, at least, become inoperative and obsolete." Ex parte Boyd, 105 U. S. 647, 657. The possession would be in the plaintiff as before, but the essential element to give equity jurisdiction-the want of a remedy at lawwould no longer exist.

In the case of unoccupied land, the law refuses its aid to any party for any purpose. It will not adjudicate the title or right of possession, nor will it remove a cloud. Whether one's title be legal or equitable, he is equally denied relief or redress at law, when the land is unoccupied. The want of an adequate remedy at law is as absolute as it is when the plaintiff has the actual possession. A large proportion of the valuable lands of this county are unoccupied. In some instances lands having great value for some purposes are not even susceptible of occupation. Owners and purchasers are not indifferent about the title to such lands. A cloud upon the title to unoccupied land is not less injurious to the owner than it would be if he was in possession; and the ground of his equity to have his title quieted and clouds removed is precisely that upon which jurisdiction is assumed and relief granted to owners in possession of their lands, viz., the law's inability to afford him a remedy.

Equity courts had their origin in the blind and obstinate refusal of the early common-law courts to expound their rules of decision and mould their forms of procedure to meet the growing exigencies of society, and the obvious demands of justice. Courts of equity in this country should not imitate the bad example of the common-law courts, and decline jurisdiction in suits falling clearly within the ac

knowledged and fundamental principle upon which equity jurisdiction is founded, because there seems to have been no case calling for its exercise under a system of tenures, a rule of seizin, and forms of procedure now obsolete in the country of their creation, and which never had any place in the laws of this country. The jurisdiction and practice in the equity courts of the United States has a general correspondence with that of the chancery courts of England. But chancery jurisdiction and practice, like the common law, is subject to be modified by local circumstances, or local convenience and necessity. The altered condition of society and government demands corresponding changes in our jurisprudence. Law, like everything else, is subject to the law of evolution. The conservatism of courts is a guaranty that the process will not go forward more rapidly than experience and the plainest principles of right and justice imperatively demand.

In answer to the argument that the subject-matter of a proceeding at law in a federal court, founded on a state statute, was originally exclusively cognizable in equity, and therefore could not be changed into a proceeding at law, the supreme court of the United States, speaking by Mr. Justice MATTHEWS, said:

“And the remaining question, therefore, becomes, not so much whether congress may, by appropriate legislation, transmute an equitable into a legal procedure, as whether it can in anywise change the rules of pleading and procedure as to courts, either of law or equity, in force in England at the time of the adoption of the constitution, or whether, by the adoption of that instrument, all progress in the modes of enforcing rights, both at law and in equity, was arrested and their forms forever fixed. To state the question is to answer it." Ex parte Boyd, 105 U. S. 647, 656.

And see, to same effect, Ellis v. Davis, 109 U. S. 485, 497; S. C. 3 Sup. Ct. Rep. 327.

But the case at bar falls plainly within the first and most ancient principle of equity jurisdiction. No extension or expansion of that jurisdiction is necessary to uphold it.

In Holland v. Challen, 110 U. S. 15, S. C. 3 Sup. Ct. Rep. 495, Mr. Justice FIELD, speaking for the whole court, said:

"The truth is that the jurisdiction to relieve the holders of real property from vexatious claims to it, casting a cloud upon their title, and thus disturbing them in its peaceable use and enjoyment, is inherent in a court of equity.

* *

It is true, that case was founded on a statute of Nebraska, but the reasoning of the court in support of the jurisdiction under the statute, supports it equally independently of the statute. The court say:

"The property in this case, to quiet the title to which the present suit is brought, is described in the bill as unoccupied, wild, and uncultivated land. Few persons would be willing to take possession of such land, inclose, cultivate, and improve it, in the face of a disputed claim to its ownership. The cost of such improvements would probably exceed the value of the property. An action for ejectment for it would not lie, as it has no occupant; and if, as contended by the defendant, no relief can be had in equity because the party

claiming ownership is not in possession, the land must continue in its unimproved condition. It is manifestly for the interest of the community that contlicting claims to property thus situated should be settled, so that it may be subjected to use and improvement. To meet cases of this character, statutes like the one of Nebraska have been passed by several states, and they accomplish a most useful purpose. And there is no good reason why the right to relief against an admitted obstruction to the cultivation, use, and improvement of lands thus situated in the states should not be enforced by the federal courts, when the controversy to which it may give rise is between citizens of different states. * ** There can be no controversy at law respecting the title to or right of possession of real property when neither of the parties is in possession. * * * Undoubtedly, as a foundation for the relief sought, the plaintiff must show that he has a legal title to the premises, and generally that title will be exhibited by conveyances or instruments of record, the construction and effect of which will properly rest with the court. * * But should proofs of a different character be produced, the controversy would still be one upon which a court of law could not act. It is not an objection to the jurisdiction of equity that legal questions are presented for consideration which might also arise in a court of law. If the controversy be one in which a court of equity only can afford the relief prayed for, its jurisdiction is unaffected by the character of the questions involved."

The principle is said to be somewhat analogous to the jurisdiction entertained by courts of equity to compel a person having a prima facie right of action to put it in suit in a reasonable time, and in default to protect the party liable from being molested at law. Spence, Eq. Jur. [659,] note 9.

"The jurisdiction of a court of equity to set aside deeds and other legal instruments which are a cloud upon the title of real estate, and to order them to be delivered up and canceled, appears to be now fully established." Willard, Eq. Jur. 304.

A terse and comprehensive statement of the principle upon which the jurisdiction is founded, is contained in Marsh v. City of Brooklyn, 59 N. Y. 280. Judge FOLGER, delivering the opinion of the court, said:

"When the claim or lien purports to affect real estate, and appears on its face to be valid, when the defect in it can be made to appear only by extrinsic evidence, which will not necessarily appear in a proceeding by the claimant thereof to enforce the lien, there is a case presented for invoking the aid of a court of equity, and to remove the lien which is a cloud upon the title."

Mr. Pomeroy, in his valuable treatise on Equity Jurisprudence, lays it down that courts of equity have jurisdiction to remove clouds from title where the title to be protected is equitable in its nature, or where the title is legal and the remedy at law is inadequate, (section 1399;) and in a note to this section the learned author shows the statement of the text is supported by the general, though not quite uniform, doctrine of the authorities in this country. On the precise question in the case at bar he says:

"Where, on the other hand, a party out of possession has an equitable title, or where he holds the legal title under circumstances, that the law cannot

furnish him full and complete relief, his resort to equity to have a cloud removed ought not to be questioned."

The principle on which the jurisdiction is founded, and the rule for its exercise, are admirably stated in Martin v. Graves, 5, Allen, 601, where the court say:

"Whenever a deed or other instrument exists which may be vexatiously or injuriously used against a party after the evidence to impeach or invalidate it is lost, or which may throw a cloud or suspicion over his title or interests, and he cannot immediately protect or maintain his right by any course of proceeding at law, a court of equity will afford relief by directing the instruments to be delivered up and canceled, or by making any other decree which justice and the rights of the parties may require."

In Clouston v. Shearer, 99 Mass. 209, it is said:

"This is a broad and comprehensive statement of the principles on which such relief is granted."

And the latter case is cited approvingly in Sullivan v. Finnegan, 101 Mass. 447, and the rule applied where the plaintiff and defendant were occupying different rooms in the same house, each claiming to own the whole; and see Loring v. Downer, 1 McAll. 360; Bunce v. Gallagher, 5 Blatchf. 481; S. C. 7 Amer. Law Reg. (N. S.) 35; Young v. Porter, 3 Woods, 342; Carroll v. Safford, 441, 464.

Some of the confusion and apparent conflict in the authorities grows out of the varying provisions of state statutes. Decisions based on statutes are cited as though they were an exposition of the general principles of equity jurisdiction. It is highly probable some of these statutes had their origin in a misconception of the inherent jurisdiction and powers of courts of equity. The tendency of the courts at first was to accept these statutes as the measure of equity jurisdiction in this class of cases.

The case of Pier v. City of Fond du Lac, 38 Wis. 470, is instructive on this point. That was a suit in equity to remove a cloud cast upon the plaintiff's title by a certificate of assessment. The bill alleged the plaintiff was the owner in fee of the lot, but said nothing about the possession. The bill being silent on the question of possession, the court assumed, for the purposes of the case, that the lot was unoccupied. It was contended for the defendant that the action. could only be sustained under the statute, which is as follows:

“Any person having the possession and legal title to land may institute an action against any other person setting up a claim thereto, and if the plaintiff shall be able to substantiate his title to such land, the defendant shall be adjudged to release to the plaintiff all claim thereto, and to pay costs, unless," etc. Rev. St. 1849, § 34, c. 84; Rev. St. 1858, § 29, c. 141.

It was conceded that if the suit could not be maintained independently of the statute, the plaintiff's want of possession was fatal to his case; and the court said:

"Hence we must determine whether the action can be upheld independently of the statute. Courts of equity have inherent jurisdiction of actions to prevent or remove clouds on title to land, and have constantly exercised it