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a suit by the lessee to restrain those claiming under another lease from interference with the property.19 The bill should show affirmatively either that the complainant is in possession, or that he and the defendants are out of possession,20 or the other facts which give jurisdiction under the statute.

Independently of statute, it was held that a Federal court had jurisdiction of a bill to quiet title by a complainant out of possession; where the questions in issue included the establishment of the fact of an administratorship and the interpretation and effect of an administrator's deed, under which the complainant claimed; 21 and where the complainant alleged title to a tract of land embracing 147,000 acres against a number of defendants, each of whom claimed title to a separate portion thereof and was in possession of the same.22 But not solely for purposes that could be accomplished by an action in ejectment.23 Possession of the surface is presumed to give possession of the mine below.24 Where woodland was vacant and not enclosed, possession was presumed to be in the owner of the legal title.25 A State statute giving a tenant under a lease for more than ten years the right to bring such a suit will be followed by the Federal courts.26

Except perhaps under extraordinary circumstances, such a suit can not be maintained when the illegality or defect in the paper which it is sought to set aside does not appear upon its face.27 A cloud upon a title must consist in some written instrument. A mere verbal assertion of ownership, although accompanied by trespasses, does not authorize a suit in equity un

19 Lancaster v. Kathleen Oil Co., 241 U. S. 551.

20 Southern Pac. v. Goodrich, 57 Fed. 879.

21 Butterfield v. Miller, C. C. A., 195 Fed. 200.

22 Buchanan Co. v. Adkins, C. C. A., 175 Fed. 692. But see supra, § 141.

23 Hipp v. Babin, 19 How. Pr. 271, 15 L. ed. 633; Lewis v. Cocks, 23 Wall. 466, 23 L. ed. 70; Ellis v. Davis, 109 U. S. 485, 27 L. ed. 1006; Killian v. Effinghaus, 110 U. S. 568, 28 L. ed. 246; U. S. v. Wil

son, 118 U. S. 86, 30 L. ed. 110;
Speigle v. Meredith, 4 Bliss. 120;
South Penn. Oil Co. v. Miller, C.
C. A., 175 Fed. 729.

24 Lawson v. U. S. Min. Co., 207 U. S. 1.

25 Graves v. Ashburn, 215 U. S. 331, 54 L. ed. 217.

26 N. Y. N. H. & H. R. Co. v. City of New York, 145 Fed. 661.

27 Johnston v. Kramer Bros. & Co., 203 Fed. 733. But see Williams v. Provident Life & Tr. Co., 242 Fed. 417.

less the facts are such as would support a bill of peace.28 Where a mortgagee had delivered possession of part, but not of the whole, of land sold under foreclosure and claimed a statutory right of redemption to all the land; it was held that the purchaser might sue to quiet its title to the whole tract and incidentally to recover the part of which the mortgagor, retained possession.29 Where, in a suit to remove a cloud from the title to land there was a prayer for the recovery of the value of timber cut therefrom, upon the denial by the defendant that he claimed any interest in or title to the land, the whole bill was dismissed, leaving the complainant to his remedy at law to recover for the timber cut.30

§ 151g. Taxpayers' bills. In the absence of any statutory restrictions, a taxpayer may bring a suit to prevent an illegal disposition of the money or of the property of a town or county where he pays taxes, or an illegal creation of a debt which he in common with the other owners of property there may be compelled to pay. A suit by several taxpayers to enjoin the governor of Ohio from transmitting to the legislature the Eighteenth Amendment was dismissed.2 It has been held that to a taxpayer's bill to prevent the levy of a tax for the payment of town bonds which are charged to be invalid, the trustees and treasurer of the township are necessary parties who are on the opposite side of the controversy to the plaintiff when the question of diversity of citizenship is to be decided.3

The Supreme Court of the District of Columbia has granted an injunction in a suit by Mr. W. R. Hearst to prevent an unlawful sale of property of the Government held by the United States Shipping Board.

§ 152. The interrogatory clause. Under the old practice, discovery could not be obtained unless prayed in the bill. The

28 Richardson v. Penn. Coal Co., 203 Fed. 743.

29 Conn. General Life Ins. Co. v. Weldon, 246 Fed. 265.

30 Sloane v. Kramer Bros. & Co., 230 Fed. 727.

$ 151g. 1 Illinois Life Ins. Co. v. Newman, 141 Fed. 449; Crampton v. Zabriskie, 101 U. S. 601, 609,

25 L. ed. 1070, 1071. Cf. infra, $ 271b.

2 Ohio v. Cox, 257 Fed. 334.

3 See Sully v. Drennan, 113 U. S. 287, 28 L. ed. 1007.

4 Hearst v. Payne, N. Y. American, April-1920.

$152. 1 Eq. Rule 43, of March, 1842.

Equity Rules of November 4, 1912, omit any provision for these and provide that interrogatories may be filed by the plaintiff after the filing of the bill and not later than twenty-one days after the joinder of issue, and by the defendant at any time after filing his answer and not later than twenty-one days after the joinder of issue, or thereafter by leave of the court or judge.2 The prac tice upon this subject is discussed in the subsequent chapter on "Evidence and Discovery."3

§ 153. Waivers and offers. It has been customary to insert in the prayer for relief, any waiver or offer which the plaintiff wishes to make, although there is no reason why such should not be set forth in the narrative part of the bill.

Under the former rules, "If the complainant in his bill shall waive an answer in the oath, or shall only require an answer under oath with regard to certain specified interrogatories, the answer of the defendant, though under oath, except such part thereof as shall be directly responsive to such interrogatories, shall not be evidence in his favor, unless the cause be set down for hearing on bill and answer only; but may nevertheless be used as an affidavit, with the same effect as heretofore, on a motion to grant or dissolve an injunction, or on any other incidental motion in the cause. But this shall not prevent a defendant from becoming a witness in his own behalf under section three of the Act of Congress of July 2, 1864."2 It rarely happened that advantage of this rule was not taken by a waiver inserted here, or more frequently in the prayer of process, in order to avoid the application of the doctrine, that otherwise an allegation responsive to the bill in a sworn answer was presumed to be true, unless rebutted by the testimony of two witnesses, or one witness and strong corroborating circumstances.3 The rule was a restatement of the former practice in chancery.4 It has not been copied in the rules promulgated in 1912, nor do they prescribe the effect of an answer under oath. Until the matter has been adjudicated, a prudent practitioner should

2 Rule 58.

8 348, infra.

§ 153. 1 Daniell's Ch. Pr., (2nd Am. ed.) 433.

2 Eq. Rule 41, of 1842.

3 Vigel v. Hopp. 104, U. S. 441,

26 L. ed. 765; Coonrod v. Kelly, C. C. A., 119 Fed. 841; infra, § 331.

4 Bartlett v. Gale, 4 Paige (N. Y.) 503; Cooper's Eq. Pl., 325, 326; Story's Eq. Pl., § 874.

follow the former practice and insert, in this part of the bill, a waiver of an answer under oath, unless he wishes to examine the defendant upon interrogatories,5 the effect upon which of such a waiver is still unsettled.

In accordance with the maxim that he who seeks equity must do equity, a court of equity often refuses relief to one seeking its aid, unless upon condition that he shall do what it considers equitable to the defendant, or sometimes even to a third person. In some cases it enforces this by the entry of a conditional decree without reference to the pleadings. This seems to be the proper practice when the defendant, by his own conduct, has so complicated matters between himself and a party seeking rescission that complete restoration is impossible. The poverty of the complainant was held to be a sufficient justification for relieving him from a tender when the decree provided for its return or credit.9 When the evidence showed that the party, to whom a tender or return of money was due, had received from the property which he wrongfully held returns exceeding in value the amount due from the plaintiff, it was held that a tender or return was not necessary.10 In a case where the plaintiff had failed to make the tender, which was a prerequisite to his cause of action, his prayer of relief was granted; but he was obliged to pay costs to the defendants, although they had resisted the suit.11 But the more usual practice is to insist that the plaintiff shall offer in his bill, which otherwise will be demurrable, to perform, or, in some cases, allege the performance of, the equitable act required of him. Thus, a bill to cancel

5 See infra, § 348.

6 Fosdick v. Schall, 99 U. S. 235 25 L. ed. 339. Supra, § 79a.

7 Walden v. Bodley, 14 Pet. 156, 164, 165, 10 L. ed. 398, 401, 402; Farmers' L. & Tr. Co. v. Denver, L. & G. R. Co., C. C. A., 126 Fed. 46; Johnston v. Forsyth Mercantile Co., 127 Fed. 845; Andrews v. Conol ly, 145 Fed. 43; Kley v. Healy, 127 N. Y. 555; s. c., 149 N. Y. 346, 354; Hay v. Hay, 13 Hun. (N. Y.) 315; Halpin v. Mutual Brewing Co., 20 App. Div. (N. Y.) 583, 590;

354; Hay v. Hay, 13 Hun (N. Y.) 643; Joslyn v. Empire State Degree of Honor, 145 App. Div. (N. Y.) 14, 17, infra, §§ 197, 400.

8 Heckscher v. Edenborn, 203 N. Y. 210, 228.

9 Lee Line Steamers Co. v. Robinson, C. C. A., 232 Fed. 417.

10 Smith v. Moore, C. C. A., 199 Fed. 689.

11 Hosmer V. Wyoming Ry. & Iron Co., C. C. A., 129 Fed. 883. See infra, § 409.

securities claimed to be usurious, or otherwise rendered void by a statute, must, in the absence of a State statute to the contrary, 12 contain an offer by the plaintiff to pay the defendant with lawful interest the money he has received therefor.18 So a bill to redeem mortgaged,14 or pledged,15 property, must contain an offer to pay what is due thereon, though the par ticular sum need not be specified. A bill to set aside a judicial sale as void must be accompanied by a tender or offer of the purchase-money with interest, provided it was applied for the benefit of the estate; and this the court may require to be prepaid before the bill is filed.16 It seems that a bill to set aside a foreclosure of a railway mortgage should contain an offer of payment of the amount admitted to be due under the mortgage, and of the costs of the foreclosure suit, or at least show some reason why such an offer should not be required.17 In a bill to set aside a transaction for fraud, it is not necessary for the plaintiff to tender the payment of any expenses which the parties guilty of fraud have made. It is sufficient if the complaint offers to do equity, and the court can then adjust the rights of the parties by a conditional decree.18

A bill to set aside a tax sale ordinarily must contain an offer to repay the purchaser at least all legal taxes on the property paid by him, both those for which the property was sold and those subsequently levied thereupon and paid by him, with interest upon each sum.1 19 A bill to restrain the collection of

12 Mo., K. & T. Tr. Co. v. Krumseig, 172 U. S. 351, 43 L. ed. 474. 13 Mason v. Gardiner, 4 Brown, C. C. 436; Tupper v. Powell, 1 J. Ch. (N. Y.) 439; Matthews v. Warner, 6 Fed. 461, 465; s. c., 112 U. S. 600, 28 L. ed. 851.

14 Story's Eq. Pl., § 187a; Harding v. Pingey, 10 Jurist (N. S.), 872; Perry v. Carr, 41 N. H. 371; Robinson v. Iron Ry. Co., 135 U. S. 522, 34 L. ed. 276; Gordon v. Smith, C. C. A., 62 Fed. 503.

15 Uehling v. Lyon, 134 Fed. 703. 16 Davis v. Gaines, 104 U. S. 386, 26 L. ed. 757. But see Rush v.

First Nat. Bank, C. C. A., 71 Fed. 102.

17 Carey v. Houston & T. C. Ry. Co., 45 Fed. 438, 443.

18 Gage v. Pumpelly, 115 U. S. 454, 29 L. ed. 449. But see Mendenhall v. Hall, 134 U. S. 559, 569, 33 L. ed. 1012, 1015.

19 State Railroad Tax Cases, 92 U. S. 575, 617, 33 L. ed. 669, 674; Alburquerque v. Perea, 147 U. S. 87, 37 L. ed. 91. But see Chicago, B. & Q. R. Co. v. Republic County, C. C. A., 67 Fed. 411; Chicago, B. & Q. R. Co. v. B. of C. of Norton County, C. C. A., 67 Fed. 458; Chi

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