60 F. 311 | 8th Cir. | 1894
after stating the case as above, delivered the opinion of the court.
The first question which deserves consideration on this appeal is whether, under the averments of the complaint, a federal court sitting in Kansas has any jurisdiction to administer equitable relief. The bill may be searched in vain for any allegation that is tantamount to a direct averment that the appellant is now seised and possessed of any part or parcel' of the lands which form the subject-matter of the controversy, while the strongest inference arises from several allegations, and from the whole scope and tenor of the complaint, that she has been actually disseised, and that the property is now occupied in severalty by numerous persons, who are holding the same adversely to the appellant. The bill shows that she is a nonresident of the state of Kansas; that more than 10 years ago, being then a nonresident, she joined with her husband' in a deed containing a covenant of general warranty, which purported to convey the whole property and the entire title; that many deeds of a like character, affecting certain portions of the land, have since been made by divers and sundry persons claiming under the conveyance executed by the appellant and her husband; that the entire property has been platted as an addition to the city of Wichita; and that portions thereof have been subdivided into smaller additions
The question then arises, which we stated at the outset, whether the United States circuit court for the district of Kansas had any jurisdiction to enter a decree of partition which was prayed for in the bill. It is not denied, as we understand, — and the authorities to this effect are numerous and uniform, — that at common law a bill for partition would only lie in favor of one who had the seisin, and immediate right of entry. At common law, if a party entitled to bring a suit for partition became disseised, he could not maintain the action until he had established his right of possession by an action in ejectment, or other equivalent proceeding at law. In other words, a suit in partition could not he maintained on a mere right of possession, if the property wras in fact held adversely, and it was not recognized as a proper action by which to recover the possession of real property where the plainliff had been disseised. These principles are fundamental. Co. Litt. 167a; 16 Vin. Abr. 225; Adams v. Iron Co., 24 Conn. 230; Clapp v. Bromagham, 9 Cow. 530, 560, 561; Lambert v. Blumenthal, 26 Mo. 471; Burhans v. Burhans, 2 Barb. Ch. 398, 408; Shaw v. Gregoire, 41 Mo. 407; 1 Washb. Real Prop. p. 715. It is claimed, however, by the appellant, — and this is the point on which the question of equitable jurisdiction finally turns, — that under the practice which prevails in Kansas a bill for partition may he maintained by a tenant in common, though he is
It is hardly necessary to pursue the subject at any greater length. The cases of Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. 495, and Reynolds v. Bank, 112 U. S. 405, 5 Sup. Ct. 213, on which much reliance seems to be placed, as explained and perhaps qualified in the later case of Whitehead v. Shattuck, supra, contain nothing in opposition to the foregoing views. In the first of these cases, which was a proceeding in equity authorized by a statute of Nebraska to quiet title, both the complainant and the defendant were out of possession, the premises in dispute being wild and unoccupied land. Vide 110 U. S. 21, 3 Sup. Ct. 495. An action in ejectment, under such circumstances, would not lie; and it was held that as there was no adequate remedy at law a federal court sitting in Nebraska might lawfully enforce the provisions of the state statute. The second case above referred to enunciates the same doctrine, — that, where equitable rights have simply been enlarged by a state statute, they may be enforced by the federal courts, substantially as directed, if the common law affords no adequate means by which to redress the wrong which the statute was intended to remedy. It follows from what has been said that this court is of the opinion that the bill in the present instance did not state a case within the equitable jurisdiction of the circuit court, and that it was properly dismissed