98 F. 756 | U.S. Circuit Court for the District of Northern Iowa | 1899
From the record in this ease it appears that it was commenced in the district court of Pocahontas county, being in form a suit in equity to quiet the title to certain described lands in Pocahontas county; the suit being based upon the provisions of section 4223 of the Code of Iowa, which provides that an action to determine and quiet the title to realty may be brought by any one claiming an interest therein, whether in or out of possession, against any one claiming title thereto, though not in possession. In the petition of complainant it is averred that: the complainant, O. W. Creen, is the absolute owner in fee simple of the realty, and that he is advised that the defendants make some claim adverse to the estate of complainant; and therefore he prays that his title and estate he established against the adverse claims of the defendants, and that they be barred and estopped from having or asserting any title or right its against the estate of complainant. It is not averred in the petition that either of the parties complainant or defendant is in the actual possession of the realty; nor is it prayed that the complainant be put in possession, or that he have jh*ocoss in any form for that purpose. It further appears from the record that upon the filing of the petition the complainant filed an affidavit to the effect that personal service of the original notice could not be made upon the defendants within the state of Iowa, and thereupon notice of the pendency of the suit was given by publication in the Pocahontas Herald, requiring the defendants to appear at the ¡September term, 3895), of the district court of Pocahontas county, which convened on the 1.8th day of that month. The defendants in due season appeared in tlie state court, and filed a petition for the removal of the suit into this court; averring therein that the controversy involved in amount over $2,000, exclusivé of interest and costs, and was between citizens of different states, — the complainant, Green, being a citizen of Iowa, and the defendants being citizens of Nebraska and Ohio. The state court ordered the case to be removed, and, the transcript having been filed in this court, the defendants on the 17th day of October, 1899, filed an answer denying the allegations of the petition, and averring that the defendants are the absolute owners in fee simple of the realty in question, and that they have been in the sole and undisputed possession thereof for the past 35 years. Thereupon, on the 18th day of October, the complainant filed a plea in abatement of the jurisdiction of this court; averring therein that when the suit was commenced, and ever since, the de fondants were and are in the actual possession of the realty through their tenants, J. N. Russell and William Mundon, and that by reason of such possession the complainant bad a speedy and adequate remedy at law under section 4183 of the Oode of Iowa, and therefore that this court, acting as a court in equity, has no jurisdiction of the subject-mailer of the suit, to wit, the quieting of the title to the said premises, and that the suit should be remanded to the state court for trial.
Upon this condition of the record, it is clear that the state couri ruled correctly in ordering a removal of the suit into this court.
To defeat the jurisdiction thus acquired, it is averred in the plea that the complainant, Green, when the suit was brought, had a plain, speedy, and adequate remedy at law, under the provisions of section 4183 of the Code of Iowa, for the reason that the defendants are in possession of the land in controversy through their tenants, J. tM. Russell and William Mundon, against whom an action at law for possession might have been brought. To defeat jurisdiction ⅛ equity, the legal remedy must be one which was in existence when the judiciary act of 1789 was adopted, or which lias since been created by act of congress. McConihay v. Wright, 121 U. S. 201, 7 Sup. Ct. 940, 30 L. Ed. 932. But assuming that the plea, although it refers to the Code of Iowa, is intended to present the question of the existence of a legal remedy under the federal practice, the point for consideration is whether the facts averred in the plea are sufficient to defeat, the jurisdiction in equity. All that Is pleaded is that Russell and Mundon are tenants of the defendants, and as such are in possession of the realty. Under this state of facts, it was open to the complainant, Green, under the provisions of the Code of Iowa, to have brought an action at law against Russell and Mundon for the possession of the realty, or to have brought a suit in equity to quiet the title and to recover possession, in which suit the defendants and the tenants would hare been proper parties. The complainant pursued neither of these courses, but instead thereof he brought the present suit in equity, in which he prays to have liis title established and quieted as against the defendants; hut he does not ask to be put into possession of the realty, nor has he made parties to the suit the persons that he now avers hold the actual possession of the realty. According to his own showing, he cannot in the present suit, whether it be beard in the state or the federal court, obtain a decree putting him into possession of the realty, because the parties in actual possession are not parties to the suit, and process for possession is not prayed for in the bill. Tlie suit, as brought, is therefore a proceeding in equity, in which the complainant asks a decree establishing his title to the land, and quieting the same as against the adverse claims of the defendants. The purpose of the bill is not to obtain possession of the land, but to quiet the title thereto as against the claims of the defendants. It is evident: that the complainant did not: wish to contest: with the occupants of the land the right of possession uniil he had established liis title by a decree in equity against Use claims of the defendants. The record shows that the defendants are not residents of Iowa, nor could personal service of notice he had on them within the state. Had an action at law, in the nature of an action in ejectment, been brought against the defendants, personal service therein could not have been had within the state, and without such service a judgment adjudicating the title would have been of no avail. Therefore if does not appear that as against defendants there existed, under the rules of the common law, a speeily and adequate
“Plaintiff, having voluntarily invoked the equity jurisdiction of the court, was not in a position to urge on appeal that his complaint should he dismissed because of adequacy of the remedy at law.”
And the defendants, by answering to the merits, as they have done, in this court, clearly show that they do not ask a jury trial, nor do they question the jurisdiction in equity over the suit. The purpose of the plea interposed by the complainant is not to secure a jury trial on' his own behalf or on that of the defendants, nor to change the jurisdiction in the case from equity to law; for the prayer of the plea is that this court will refuse to take jurisdiction in equity, because of the' existence of a legal remedy, and. will remand the case to the state, court, in order that it may be proceeded with in that court, wherein, it would remain a suit in equity. If. the complainant wishes to change the jurisdiction from equity to law, he can readily do so by dismissing the bill and commencing an action at law; but instead of so doing, under the pretext that this court ought not to take jurisdiction in equity, he asks that the suit be remanded to the state court,! wherein he proposes to continue the case as one of equitable cog-, nizance. Under these circumstances, it is not open to the complain-, ant to insist that this court should refuse to take jurisdiction in equity because, possibly, had he so chosen, he might have brought an action at law against the tenants. The purpose of the suit, as now. instituted, is to quiet the title to the realty as between the conflicting claims of the plaintiff and the defendants, and it does not appear that, this object could be accomplished by an action at law against the tenants. It cannot'be now known, if an action at law for possession