tice Grier in Orton v. Smith: Those only 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 on the title.' 18 How. 265."

The law of Arkansas authorizes a bill to remove a cloud on a title whether or not the complainant be in possession. Acts Ark. 1891, p. 132. By reason of this statute, a bill in equity may be maintained in the circuit court of the United States by a person not in possession against another who is also out of possession. Holland v. Challen, 110 U. S. 15, 25, 3 Sup. Ct. 495 But this does not make the complainant's rights any the less dependent upon title in him, nor does it put him in a position to have a cloud removed from a title which has no ex istence. In Frost v. Spitley, supra, it was said:

"A statute of Nebraska authorizes an action to be brought 'by any person or persons, whether in actual possession or not, claiming title to real estate, against any person or persons who claim an adverse estate or interest therein, for the purpose of determining such estate or interest, and quieting the title to said real estate.' St. Neb. Feb. 24, 1873; Gen. St. 1873, p. 882. * * The requisite of the plaintiff's possession is thus dispensed with, but not the other rules which govern the jurisdiction of courts of equity over such bills. Under that statute, as under the general jurisdiction in equity, it is 'the title'-that is to say, the legal title-to real estate that is to be quieted against claims of adverse estates or interests. In State v. Sioux City & Pac. R. Co., the supreme court of Nebraska said: 'Whatever the rule may be as to a party in actual possession, it is clear that a party not in possession must possess the legal title, in order to maintain the action.' 7 Neb. 357, 376. And in Holland v. Challen, above cited, this court said: 'Undoubtedly, as a foundation for the relief sought, the plaintiff must show that he has a legal title to the premises.' The necessary conclusion is that Spitley, not having the legal title of the lots in question, cannot maintain his bill for the purpose of removing a cloud on the title."

It is said that the state of Arkansas became a party to the proceedings in the Ashley county court, and is hence bound thereby, and from this is deduced the argument that, inasmuch as the defendant derived his title from the state subsequent to the complainant's purchase, the latter's title is validated. Stafford v. Watson, 41 Ark. 17. But the appearance of the state did not cure the radical defect in the proceedings under which complainant purchased. The notice was essential in order to affect the rights of the owner of the property as against whom the proceedings were initiated and the sale was made. The appearance of the state did not therefore give the court jurisdiction or renv.155.c.-9

der the sale valid. There are other contentions urged, but they are all covered by what has been already said. They either arise from the erroneous postulate that the complainant's title is not void, but simply voidable, or are predicated on the equally unsound premise that one having no title can successfully invoke the aid of a court of equity to "remove a cloud" from such nonexistent title; that is to say, can ask a court to subtract something from nothing. Decree reversed, and case remanded, with directions to dismiss the bill.

(155 U. S. 314)

WEHRMAN v. CONKLIN et ux. (December 10, 1894.) No. 45.

ESTOPPEL

EQUITY - JURISDICTION LACHES
FRAUDULENT CONVEYANCES-ATTACHMENT
-VALIDITY OF WRIT.

1. Though defendant's laches will not avail a complainant except as they show an es toppel, and an estoppel in pais, being an avail able defense in an action at law, is not of itself ground for equitable action, it may avail in an equitable action where there is other ground to give equity jurisdiction.

2. Equity has jurisdiction of a suit in the nature of a judgment creditors' bill by persons claiming, by successive assignments from the original creditors, a lien on certain land, which the debtor had conveyed in fraud of the original creditors; and with this may be joined the additional reasons for relief that plaintiffs have long been in possession of the land, that the records of the case, through which the original purchaser at the execution sale claimed to have acquired legal title to the lands, have been lost, and that plaintiff's title, though good in equity, may be technically insufficient at law.

3. A writ of attachment, though not impressed with such a court seal as the law requires, is not void where the clerk affixed a private seal or scroll, with the statement that no seal had yet been secured.

4. Neither the fact that a petition for attachment gave a wrong date as that on which the judgment sued on was rendered, nor that the writ was made returnable on a day not yet fixed as the first day of the next term, though subsequently so fixed, nor that, in changing the venue of the action, the transcript was not certified by the seal of the court, will render the writ and the proceedings thereunder void, though they might have been good defenses to the action, if seasonably interposed.

5. An attachment and long-continued possession thereunder is a sufficient basis on which to maintain a suit for equitable relief against a fraudulent grantee of the debtor, without regard to the validity of a prior like suit against the same defendant, the proceedings in which have been lost.

6. G. attempted to obtain a lien on land by attachment, made personal service, in another state, or A., the debtor, and went through the form of obtaining a judgment against the land and selling it on execution. G. purchased the land at such sale, paid taxes thereon, acquired tax titles thereto, and subsequently sold the same to plaintiff, who has ever since, a period of 27 years, been in open, notorious, and undisturbed possession, erecting buildings and making other improvements thereon. On the day that G. commenced action against A., A deeded the land to F., under circumstances tending to show that it was intended as a fraud on the creditors of A., for a recited consideration of $3,000, which

was double the value of the land. At the time of the deed, F. was an ordinary day laborer, without means, and he took no steps to assert his title or right of possession for 30 years, at which time the land had become quite valuable. Held, that F. was estopped to claim title against plaintiff.

43 Fed. 12, affirmed.

Appeal from the Circuit Court of the United States for the Northern District of Iowa.

This was a bill in equity brought by the appellees, Conklin and wife, to enjoin the appellant, Wehrman, from prosecuting an action of ejectment in the court below, against the appellees, to recover possession of the lands in controversy.

The bill, which was filed by T. B. Conklin and E. F. Conklin, whose Christian names are not given, but who appear from subsequent allegations to be husband and wife, set forth that they were the "absolute owners" of the property, which had been purchased of the United States on June 9, 1857, by one Adolph Wehrman, who received a patent therefor on December 1, 1859. Afterwards, and on December 17, 1859, Adolph Wehrman and wife conveyed the land in controversy, with other lands,-about 2,060 acres in all,-by deed of warranty, to the defendant, Frederick Wehrman, for an expressed consideration of $3,000. This deed was recorded in the proper office for the county of Woodbury, to which the county of O'Brien, wherein the lands were situated, was then attached for judicial purposes.

The bill further alleged that on January 14, 1861, a copartnership known as Greeley, Gale & Co. began an action at law, aided by an attachment in the district court of O'Brien county, upon a judgment rendered by the circuit court of Pierce county, in the state of Wisconsin, against Adolph Wehrman, which judgment was based upon notes given prior to the date of the conveyance of said lands to the defendant by Adolph Wehrman. Such judgment was rendered after personal service upon Adolph Wehrman in the state of Wisconsin. A writ of attachment was issued by the clerk of the district court of O'Brien county, and levied upon the lands in question, and notice personally served upon the defendant in the state of Wisconsin, although no service of summons or notice appears to have been had in the state of Iowa. At the time the writ of attachment was issued, there was no time fixed by law for holding the term of the district court in O'Brien county, though subsequently the judge appointed a term to be held on the 3d day of June, 1351, to which day the writ of attachment was actually made returnable. The venue of the cause having been changed to the county of Woodbury, on September 17, 1861, a judgment was rendered by the district court of that county against the defendant Wehrman for $1,809.40 damages and costs, and the lands "described in the writ of attachme77" were ordered to be sold in subfazówn thereof. A certified

copy of this judgment was filed in the district court of O'Brien county.

Afterwards, and prior to the June term of 1862, Greeley, Gale & Co. commenced a suit in equity in the district court of O'Brien county against Adolph Wehrman and wife and Frederick Wehrman, for the purpose of setting aside and canceling the deed from Adolph Wehrman and wife to Frederick Wehrman, as fraudulent and void against the creditors of the former, and subjecting the lands described in this deed to the payment and satisfaction of their judgment against Wehrman. The plaintiffs averred: That they were unable to set out the proceedings in such suit, for the reason that they had become lost and destroyed, but that there was personal service upon the defendants in the state of Wisconsin; that subsequently, and at the June term of 1862, a decree was rendered by default, declaring the deed to be fraudulent and void, and ordering the lands to be sold in satisfaction of the judgment rendered by the district court of Woodbury county, and the proceeds to be applied to the payment of such judgment; that an execution was subsequently, and on June 16, 1862, issued from the district court of Woodbury county, directed to the sheriff of O'Brien county, by virtue of which the sheriff levied upon the lands described in the writ of attachment, and sold the same on July 31, 1862, to Carlos S. Greeley, one of the members of the firm of Greeley, Gale & Co., who thereupon acknowledged satisfaction of the judgment; and that on December 31, 1864, the land not being redeemed, the sheriff executed to Greeley a sheriff's deed, which was filed, whereby Carlos S. Greeley became the absolute owner of the land.

That he subsequently acquired a tax title to such lands for the taxes of 1858 and 1859, and that said lands, by conveyances from Greeley in 1881, 1882, and 1884, became the property of Conklin, who took immediate possession, and has since been in full, open, notorious, and adverse possession of the same. That the plaintiffs and their grantors paid all the taxes upon such lands for 30 years, and have made valuable improvements by putting some 600 acres under cultivation, by the erection of substantial buildings and fences, digging wells, and otherwise improving the premises. That such improvements have been made at an expense of $1,000, and in full reliance upon their title being good and valid. That in the meantime defendant has never asserted any right or title to the premises, or notified plaintiffs of his interest in the same. That Wehrman never asserted any claim to the premises until the land became valuable by reason of the plaintiffs' expenditures; has never paid any taxes upon the property, and, though having actual knowledge of the proceedings taken by Greeley, Gale & Co. to subject the land to the payment of their judgment, for more than 27 years took no steps to have the rec

ords corrected, or asserted any claim, or notified purchasers of such claim, until his action at law was commenced.

The bill further averred the conveyance by Adolph Wehrman to be a cloud upon their title, and, being in actual possession and occupancy of the land, they prayed that the action in ejectment be stayed until the determination as to their rights to the land, and that Wehrman be enjoined from further proceedings at law.

Defendant interposed a demurrer to the bill for the want of jurisdiction and of equity, which was overruled; and he thereupon answered, setting up certain defects in the proceedings under which Greeley, Gale & Co. sold the land upon execution, and by virtue of which proceedings plaintiffs claimed to have acquired a title, viz.: (1) That the writ of attachment was not attested by the seal of the court in which the action was brought; (2) that no service of summons or notice was had upon the defendant Adolph Wehrman in the state of Iowa; (3) that such notice as was given described the action as having been brought upon a judgment rendered May 12, 1860, when in fact the judgment was rendered September 12, 1860, and judgment was taken upon the attachment proceedings upon a judgment so rendered September 12, 1860; (4) that the writ of attachment was made returnable at a term commencing on June 3, 1861, when in fact the commencement of that term was not fixed until more than a month after the writ was issued; (5) that a change of venue was ordered from O'Brien county to Woodbury county, and the papers sent there without having been in any manner certified or verified by the seal of the court in which the suit was brought; (6) that the judgment was in personam, and ordered the property "described in the writ of attachment" to be sold to satisfy the same, when in fact no property was described in the writ, but only in the return of the officer indorsed thereon; (7) that in the subsequent equity suit to subject the lands to the payment of this judgment there was no personal service or notice of process upon the appellant, Frederick Wehrman, in the state of Wisconsin; (8) that the tax deed was defective, inasmuch as the taxes on the lands for 1858 and 1859 were payable by law to the treasurer of Woodbury county, whereas the tax deed shows that the treasurer of O'Brien county attempted to sell the lands for taxes and give a tax deed.

The case was argued upon pleadings and proofs, and the court made a final decree in which the adverse claims of the defendant, Wehrman, were adjudged to be invalid and groundless, the complainants decreed to be the true and lawful owners of the land, and their title to be quieted against the claims of the defendant, who was perpetually enjoined from setting up the same; and, further, that defendant be enjoined from further proceedings at law.

From this decree defendant appealed to this court. The opinion of the court upon demurrer is found in 38 Fed. 874, and upon final hearing in 43 Fed. 12.

Chas. A. Clark, for appellant. E. C. Herrick, for appellees.

*Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

This is a bill in equity, not only to stay an action in ejectment at law, but to remove a cloud cast upon the Conklins' title to the lands in question, created by a deed from Adolph Wehrman to Frederick Wehrman, appellant and defendant in the bill, and to quiet their own title thereto.

1. Defendant's principal contention is that equity has no jurisdiction of the case, for the reason that the contest concerns the

legal title only, and that plaintiffs have a plain, adequate, and complete remedy at law. It is undisputed that Carlos S. Greeley, a member of the firm of Greeley, Gale & Co., bought the lands in question at a sheriff's sale which took place on July 31, 1862, and that for about 20 years thereafter, when the lands were sold to Conklin, he paid the taxes upon the land. That the Conklins, upon their purchase of the several parcels, took immediate possession, and that they have since been in full, open, and adverse possession and occupancy of the same; have made large and valuable improvements thereon by putting some 600 acres under cultivation, and by erecting substantial buildings and fences, digging wells, and otherwise improving the premises, making the same more valuable, and have expended $1,000 in such improvements, in good faith and full reliance upon such title being good and valid. That the defendant during such time, and for more than 27 years, has never done any act or taken any step to have the records corrected, or to assert any claim or his part to such lands, or to notify purchas ers of his interest in the same, until he began his action of ejectment.

The general principles of equity jurisprudence, as administered both in this country and in England, permit a bill to quiet title, to be filed only by a party in possession against a defendant who has been ineffectu-* ally seeking to establish a legal title by repeated actions of ejectment, and as a pre requisite to such bill it was necessary that the title of the plaintiff should have been established by at least one successful trial at law. Pom. Eq. Jur. §§ 253, 1394, 1396 At common law a party might by successiv fictitious demises bring as many actions f ejectment as he chose, and a bill to quiet title was only permitted for the purpose of preventing the party in possession teing annoyed by repeated and vexatious actions. The jurisdiction was, in fact, only another exercise of the familiar power of a court of equity to prevent a multiplicity of suits by

ing principles of such bills is found in the opinion of this court in Holland v. Challen, 110 U. S. 15, 19, 3 Sup. Ct. 495, in which it is said: "To entitle the plaintiff to relief in such cases, the concurrence of three particulars was essential: He must have been in possession of the property; he must have been disturbed in its possession by repeated actions at law; and he must have established his right by successive judgments in his favor. Upon these facts appearing, the court would interpose and grant a perpetual injunction to quiet the possession of the plaintiff against any further litigation from the same source. It was only in this way that adequate relief could be afforded against vexatious litigation and the irreparable mis chief which it entailed."

This method of adjusting titles by bill in equity proved so convenient that in many of the states statutes have been passed extend. ing the jurisdiction of a court of equity to all cases where a party in possession, and sometimes out of possession, seeks to clear up his title and remove any cloud caused by an outstanding deed or lien which he claims to be invalid, and the existence of which is a threat against his peaceable occupation of the land, and an obstacle to its sale. The inability of a court of law to afford relief was a strong argument in favor of extending the jurisdiction of a court of equity to this class of cases.

The statute of Iowa, upon which this bill is based, is an example of this legislation, and provides (Code, § 3273) that "an action to determine and quiet title to real property may be brought by any one having, or claiming an interest therein, whether in or out of possession of the same, against any person claiming title thereto, though not in possession."

It will be observed that this statute enlarges the jurisdiction of courts of equity in the following particulars:

(1) It does not require that plaintiff should have been annoyed or threatened by repeated actions of ejectment.

(2) It dispenses with the necessity of his title having been previously established at

law.

(3) The bill may be filed by a party having an equitable as well as a legal title. Grissom v. Moore, 106 Ind. 296, 6 N. E. 629; Stanley v. Holliday (Ind. Sup.) 30 N. E. 634; Echols v. Hubbard (Ala.) 7 South. 817.

(4) In some states it is not even necessary that plaintiff should be in possession of the land at the time of filing the bill.

These statutes have generally been held to be within the constitutional power of the legislature; but the question still remains, to what extent will they be enforced in the federal courts, and how far are they subservient to the constitutional provision entitling parties to a trial by jury, and to the express provision of Rev. St. § 723, inhib

plain, complete, and adequate remedy may be had at law? These provisions are obligatory at all times, and under all circumstances, and are applicable to every form of action, the laws of the several states to the contrary notwithstanding. Section 723 has never been regarded, however, as anything more than declaratory of the existing law (Boyce's Ex'rs v. Grundy, 3 Pet. 210), and, as was said in New York Guaranty & Indemnity Co. v. Memphis Water Co., 107 U. S. 205, 210, 2 Sup. Ct. 279, "was intended to emphasize the rule, and to impress it upon the attention of the courts." It was not intended to restrict the ancient jurisdiction of courts of equity, or to prohibit their exercise of a concurrent jurisdiction with courts of law in cases where such concurrent jurisdiction had been previously upheld.

On

The question of enforcing these state statutes was first considered in Clark v. Smith 13 Pet. 195, in which a bill was filed by s party in possession to compel the defendant to relea a pretended title to certain lands claimed by him under patents from the state of Kentucky. The conveyance asked by the bill was sought to be in conformity with the provisions of an act of the assembly of Kentucky giving jurisdiction to courts of equity in such cases. It was held that, the legislature "having created a right, and having at the same time prescribed the remedy to enforce it, if the remedy prescribed is consistent with the ordinary modes of procedure on the chancery side of the federal courts, no reason exists why it should not be pursued in the same form as in the state courts. the contrary, propriety and convenience suggest that the practice should not materially differ where titles to land are the subjects of investigation." This case was cited and approved in Parker v. Overman, 18 How. 137, where a proceeding under a statute of Arkansas prescribing a special remedy for the confirmation of sales of land by a sheriff was held to be enforceable in the federal courts. In Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. 495, the principle of this case was extended to one of wild land, of which neither plaintiff nor defendant was in possession. Plaintiff claimed under a tax title, and the property was described in the bill as unoccupied, wild, and uncultivated land. The question was elaborately examined, and the jurisdic tion sustained upon the ground that an enlargement of equitable rights by state statutes may be administered in the federal courts as well as in the courts of the state; citing Clarke v. Smith, and the case of Broderick's Will, 21 Wall. 520. The case was treated as one where the plaintiff had no remedy at law against the defendant, who claimed an adverse interest in the premises. In delivering the opinion, however, it was intimated (page 25, 110 U. S., and page 495, 3 Sup. Ct.) that if a suit were brought in the federal court, under the Ne