delivered the opinion of the court. He stated the facts in the foregoing language, and continued:
The first complaint of the appellant is that the court overruled his motion to dismiss the bill, the appellee having failed to file a replication to the answer within the time prescribed by the equity rules. The motion was properly denied. The sixty-sixth equity rule provides that “ whenever the answer of the defendant shall not be exceptedjo, or shall be adjudged or *409 deemed insufficient, the plaintiff shall file the general replication thereto on or before the next succeeding rule day thereof. . . . If the plaintiff shall omit or refuse to file such replication within the prescribed period, the defendant shall be entitled to an order, as of course, for a dismissal of the suit, and the suit shall thereupon stand dismissed, unless the court, or a judge thereof, shall, upon motion for cause shown, allow a replication to be filed nunc pro tunc, the plaintiff submitting, to speed the cause, and to such other terms as may be directed.”
The rule thus places it in the defendant’s power to compel the complainant to put the cause at issue or to go out of court. The complainant always has the, option of setting the case down for hearing on bill and answer instead of filing a replication, and if the defendant neglects to enter the order for the dismissal of the suit for want of replication until after the cause.has been set down for hearing on bill and answer, a motion by the defendant to dismiss the suit for want of replication is incongruous and untimely. On setting the cause down for hearing on bill and answer the case is put at issue, the answer becomes evidence (Equity Rule 41, clause 2), and the only evidence the defendant needs, for it must be taken as true in all respects.
Brinkerhoff
v.
Brown,
The appellant next complains of the decree rendered by the Circuit Court, and his first objection is, that the court had no jurisdiction to quiet the title of the appellee as against a deed
*410
averred by the bill and not denied by the answer to be void on its face. The contention is that a deed, void on its face, is not a cloud upon the title, and a claim of title under it is no ground for the interference of a court of equity. This objection is not tenable. It may be conceded that the legislature of a State cannot directly enlarge the equitable jurisdiction of the Circuit Courts of the United States. Nevertheless, an enlargement of equitable rights may be administered by the Circuit Courts as Avell as by the courts of the States.
Broderick's
Will,
While, therefore, the courts of equity may have generally adopted the rule that a deed, void upon its face, does not cast a cloud upon the title Avhich a court of equity Avould undertake to remove, Ave may yet look to the legislation of the State in Avhich the court sits to ascertain what constitutes a cloud upon the title, and Avhat the State laws declare to be such the courts of the United States sitting, in equity have jurisdiction to remove. This Avas expressly held in the case of
Clark
v.
Smith,
The State of Indiana, where the present case arose, has declared by statute Avhat kind of a claim against real estate is such a cloud upon the title as will support a suit to remove it. § 1010 Rev. Stat. of Indiana, 1881, provides as íoHoavs: “An action may be brought by any person, either in or out of possession, or by any one having an interest in remainder or reversion, against another Avho claims title to or interest in real property adverse to him, although the defendant may not be *411 in possession thereof, for the purpose of determining and quieting the question of title.”
This act confers- upon any one, against whom another, whether in or out of possession, claims an adverse title or in- • terest.in real estate, the substantial right of having the disputed title settled by action of the courts.
Under this statute it has been decided by the Supreme Court-of Indiana that it is sufficient to aver that the defendant claims some interest or title, or pretended interest or title, adverse to complainant, without • stating what the title is.
Marot
v.
The Germania Building Association,
The bill of complainant in this case complies with this rule by averring, that “said Reynolds is, under his deed” (from Baird, the assignee), “ claiming and asserting title paramount to the title of this complainant; ” and the answer of the defendant admits that, under the deed executed to him by Baird, he is claiming whatever title to said lands the same confers on him.
The quéstion whether, under such a statute as that of Indiana and under the facts stated, the Circuit Court had jurisdiction to render the decree complained of, has been, in effect, decided in the affirmative by this court in the case of
Holland
v.
Challen,
In that case, a statute of Nebraska was under review, which provided that “ an action may be brought and prosecuted to final decree by any person, whether in actual possession or not, claiming title to real estate against any person who claims an adverse interest therein, for the purpose of determining such interest and quieting the title.” The court, speaking by Mr. Justice Field, declared in substance that this statute dispensed with the general rule of courts of equity, that, in order to maintain a bill to quiet title, it was necessary that the party should be in possession, and, in most cases, that his title should be established at law or founded on undisputed evidence or long-continued possession.
If the equity courts of the United States in Nebraska could dispense with these well-established rules of equity, and admin *412 ister the rights’conferred by this statute, it is not open to question that, in this case, the Circuit Court could disregard a similar rule, and entertain jurisdiction of the appellee’s case, and accord to him the rights conferred by the statute law, even though the deed under which the appellant claimed was void on its face.
As the same statute authorizes the court to take cognizance of the case even when the title of defendant amounts to more than a mere cloud, and applies in every case when the defendant claims an adverse interest in or title to the property in controversy, it is clear that the assignment of error under consideration has no support.
It is next objected- to the decree of the' Circuit Court that the appellee’s title ivas itself doubtful, and the bill should for that reason have been dismissed. But it is apparent that the appellant was entitled in equity to all of his estate in bankruptcy not required for the payment of his debts. This estate, as appears by the averments of the bill not denied by the answer, wras subject to mortgage and other liens held by the appellee equal in amount to its full value. When, therefore, no debts having been proven against his estate, the appellant wTas discharged, and his assignee in bankruptcy had fully settled the estate, the quit-claim deed executed by the former to the appellee vested in the latter a clear equitable title to the premises in controversjq and this was sufficient under the .Indiana statute to justify the relief prayed for in the bill.
The appellant next insists that the appellee, being a national bank, had no power’ under the act establishing national banks, to take a conveyance of the two hundred acre tract of land from Yance and Watson, and that, as such a conveyance formed a part of the agreement by which the appellee acquired title to the land conveyed to it by the appellant, the title to the latter tract is void.
The national banking law, Revised Statutes, § 5137, provides that a national banking association may purchase such real estate as shall be mortgaged to it in good faith by way of security for debts previously contracted. The power to purchase the real estate in dispute, was, therefore, clearly conferred
*413
by the statute. The fact that, in order to secure the same debt, it purchased other real estate not mortgaged to it, .cannot affect the title to the land which it was authorized to purchase. But if there was any force in this objection to the title, it could not be raised by the debtor, for where a corporation is incompetent by its charter to take a title to real estate, a conveyance to it is not void but only voidable; the sovereign alone can object. It is valid until assailed in a direct proceeding instituted for that purpose.
National Bank
v.
Matthews,
The appellant insists, further, that the appellee did not perform that part of his contract by which he agreed to pay off the debts of appellant, which were a' lien upon the property in question: that the purchase of the sheriff’s certificate and the purchase and transfer to himself of the decree in favor of Ann Smith, were not payment of the debts. This is an objection to the form rather than the substance of the transaction. The debts, so far as the original creditors are concerned, were satisfied, and this, together with their assignment to the appellee, who was under a contract with the appellant to pay them, was in substance and effect a payment. There is no averment that the appellee had any purpose to attempt their enforcement against the appellant, and if such attempt should be made it could not, in the face of the contract, succeed.
We think that the decree of the Circuit Court is sustained by the admissions of the answer,.and that there is no error in the record.
Decree affirmed.