U. S. 347, 7 Sup. Ct. 249, 30 L. Ed. 451. See, also, Harding v. Guice, 25 C. C. A. 352, 80 Fed. 162; Green v. Turner (C. C.) 98 Fed. 756. To review and quote from these cases would serve no useful purpose. That work has already been done by Judge Taft, speaking for the United States Circuit Court of Appeals for the Sixth Circuit, in Grether v. Wright, 23 C. C. A. 498, 75 Fed. 742. We will, however, quote the following from an opinion of the Supreme Court delivered by Mr. Justice Brown: "This court has held in a multitude of cases that where the laws of a particular state gave a remedy in equity, as, for instance, a bill by a party in or out of possession to quiet title to lands, such remedy would be enforced in the federal courts, if it did not infringe upon the constitutional rights of the parties to a trial by jury.' Greely v. Lowe, 155 U. S. 58, 75, 15 Sup. Ct. 28, 39 L. Ed. 75. It is conceded that the bill makes a case within the jurisdiction of the Mississippi chancery court, for the statute quoted dispenses with the necessity of the plaintiff's possession. As it appears that the defendant was not in possession of the lands, and that the plaintiff has no adequate remedy at law, and that the defendant is not deprived of the right of a trial by jury, there is no valid objection to the jurisdiction of the United States Circuit Court."

The above statement of Judge Shelby, that, if the record had shown defendant to be in possession, ejectment would have been an adequate remedy, is dictum, because later he says the record shows that defendant is not in possession, and the rule should be limited to cases where the instrument sought to be canceled is void upon its face as a matter of law or upon indisputable facts. Such was the character of instruments evidencing title in Whitehead v. Shattuck, supra. There it was alleged that the land entered and patented was at the time not subject to entry and patent; that the evidences of title were procured without legal right and in violation of law. The entire title of the defendant depended upon the patent, which as a matter of law was void upon its face or upon indisputable facts, and cancellation was unnecessary.

In the case of Hipp v. Babin, 19 How. 271, 15 L. Ed. 633 (which Judge Taft, in Grether v. Wright, 75 Fed. 748, 23 C. C. A. 498, calls. the first and leading case on the subject and says is quoted in nearly all the others which have followed) there was no independent equity, no proper allegation that the plaintiffs were seeking cancellation, partition, discovery, or to avoid a multiplicity of suits.

The test here of the adequacy of the legal remedy is this: If the plaintiffs should bring ejectment and recover possession of the property and a judgment for mesne profits, would a court of equity afterwards sustain a bill by them in possession to decree cancellation and surrender up of the void deeds, and this would turn upon whether they were clearly void upon their face or upon indisputable facts, so that no mischief might come of their being outstanding. The rule is well stated in section 1377 of Pomeroy's Equity Jurisprudence, vol. 4. See, also, Pomeroy's Equitable Remedies, § 685.

[7] In the year 1789 the jurisdiction of equity to order void instruments to be delivered up and canceled was well established in cases where the instrument was a deed to land, and the subsequent cognizance of common-law courts, by giving a concurrent remedy in such cases, did not disturb the jurisdiction already acquired by the courts of equity. As stated by Mr. Pomeroy (volume 1, § 182):

(273 F.)

"Whenever equity originally acquired jurisdiction over any particular subject-matter, right, or interest, because the law either did not recognize the existence of the right or interest, or could not furnish an adequate remedy for its protection, and the scope of the common law has since become enlarged, so that it now not only admits the particular primary right or interest to be legal, but also furnishes a legal remedy by its actions, which may even be adequate under ordinary circumstances, still the equitable jurisdiction is not in general thereby destroyed or lessened, although it is made to be concurrent, and although the special reasons for its continued exercise-namely, the inadequacy of the legal remedy-may no longer exist."

[8] The above principle is subject to this limitation: That if the scope of the common-law remedy had been enlarged at the time of the adoption of the Judiciary Act of 1789 (Act Sept. 24, 1789, c. 20, 1 Stat. 73), then no suit in equity would lie. The sixteenth section of the Judiciary Act of 1789 (Comp. St. § 1244) provides: "That suits in equity shall not be sustained plain, adequate and complete remedy may be had at law."

*

in any case where

But this is merely declaratory of the pre-existing rule, and does not apply where the remedy is not "plain, adequate and complete," or, in other words, "where it is not as practical and efficient to the ends of justice and to its prompt administration, as the remedy in equity." It therefore becomes highly important to inquire whether the equitable jurisdiction to cancel void deeds previously acquired was taken away by said section 16, and this turns upon whether the growth and development of the action of ejectment at that time had progressed sufficiently to afford the complainant a plain, adequate, and complete remedy at law. Let us, then, examine the nature and effect of a judgment in ejectment, to ascertain the character and function of the remedy afforded by it.

[9] At common law the judgment in ejectment was that the plaintiff recover his term yet to come and unexpired. 2 Roscoe, Real Action, 601. By virtue of this judgment, the court by its writ of habere facias possessionem put the complainant in possession of the land covered by his unexpired term. The effect of the judgment was the same in the original fictitious action as it was in the modified form:

"It is a recovery of the possession (not of the seisin or freehold) without prejudice to the right as it may afterwards appear, even between the same parties. He who enters under it in truth and substance can only be possessed according to right. If he has a freehold, he is in as a freeholder. If he has a chattel interest, he is in as a termor. If he had no right to the possession, then he takes only a naked possession." Jackson v. Dieffendorf, 3 Johns. (N. Y.) 270; Atkyns v. Horde, 1 Burr. 114.

The action as thus established continued in England unchanged until the Common-Law Procedure Act of 1852 and the amendatory acts of 1854 and 1860. Martin's Civil Procedure, §§ 169, 170. Under sections 1852, 1853, Code Miss. 1906, a judgment in ejectment is res adjudicata as to the parties and their privies claiming by title arising after the commencement of the action. It would perhaps not be inaccurate to say that an action in the nature of ejectment prevails in Mississippi for the trial of title to land, but in determining the

adequacy of the legal remedy we look to the common law as modified by English statutes at the time of the adoption by Congress of the Judiciary Act of 1789. The fact that the state of Mississippi by statute gives an adequate remedy at law is not sufficient to deprive a federal court of equity of its jurisdiction. Greeley v. Lowe, 155 U. S. 58, 15 Sup. Ct. 24, 39 L. Ed. 69.

It is clear that an action that does not try the title, that does not cancel and compel delivery up of outstanding void deeds valid upon their face and which require evidence to establish their invalidity, and which evidence may be lost or destroyed, an action that confers naked possession only without prejudice to the right as it may afterwards appear, even between the same parties, is not a plain, adequate, and complete remedy, sufficient to deprive a court of equity of jurisdiction.

[10] But if the court is in error, if equity has no jurisdiction, it is solely for the reason that, the defendant being in possession, the complainants have a plain adequate, and complete remedy at law in the action of ejectment. In other words, because the legal remedy is as full and efficient as is needed, and after it is afforded complainants they will not need or be entitled to a cancellation of the void deeds, in which case the cause will not be dismissed or remanded, but transferred, under rule 22 (198 Fed. xxiv, 115 C. C. A. xxiv), to the law docket.

On the whole, the complainants are in a difficult position. They must steer between Scylla and Charybdis. If equity has jurisdiction for any reason, either undue influence or mental incapacity, entitling them to invoke the equitable remedies of cancellation and surrender up, then it will take charge of the whole case and do complete justice, settling all matters ordinarily determinable at law, without sending the issues to the law side of the court. On the other hand, if there is no equity in the suit, if a bill to cancel or remove clouds will not lie because defendants are in possession, and ejectment will give complainants adequate relief without the necessity of cancellation, then the cause should simply be transferred to the law docket under rule 22 (198 Fed xxiv, 115 C. C. A. xxiv), and an order entered for the pleadings to be recasted in legal form.

This case is distinguishable on this motion from Cates v. Allen, the main reliance of counsel by analogy, in two important particulars: First. In the latter case there was no equity of any kind in the federal court on the face of the bill, because a creditors' bill does not lie to set aside a fraudulent conveyance and subject a debtor's property to a lien for a simple contract debt before obtaining a judgment at law.

Second. Because in that case it was beyond doubt that the law afforded no adequate remedy, but a legal action was simply a prerequisite or a condition precedent to a suit in equity.

I conclude that the motion to remand should be overruled.

(273 F.)

MEMORANDUM DECISIONS

In re MOTOR SALES & AUTO SERVICE CO. MYERS v. FARMERS' TRUST CO. OF CARLISLE, PA., et al. (Circuit Court of Appeals, Third Circuit. June 24, 1921.) No. 2732. Petition to Revise and Review an Order of the District Court of the United States for the Middle District of Pennsylvania; Charles B. Witmer, Judge. In the matter of the Motor Sales & Service Company, bankrupt. Petition of John E. Myers, attorney against the Farmers' Trust Company of Carlisle, Pa., and J. R. Harkison, trustee in bankruptcy of said bankrupt, to revise and review an order. Order affirmed. E. M. Biddle, Jr., of Carlisle, Pa., and John E. Myers, of Lemoyne, Pa., for petitioner. Merritt F. Hummell, of Carlisle, Pa., for trustee. Ruby R. Vale, of Philadelphia, Pa., and Brinton & Vale, of Carlisle, Pa., for respondents. Before WOOLLEY and DAVIS, Circuit Judges, and THOMPSON, District Judge.

WOOLLEY, Circuit Judge. This cause came on to be heard on the transcript of record from the District Court of the United States, for the Middle District of Pennsylvania, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged and decreed by this Court, that the order of the said District Court in this cause be, and the same is hereby affirmed, with costs.

In re POTTASH. Petition of NEW JERSEY HOUSING & CONTRACTING CO. (Circuit Court of Appeals, Third Circuit. June 24, 1921.) No. 2725. Petition to Revise and Review an Order of the District Court of the United States for the District of New Jersey; John Rellstab, Judge. In the matter of David Pottash, individually and trading as Clayton Shoddy & Cotton Mills, bankrupt; Willis T. Porch, trustee. On petition by the New Jersey Housing & Contracting Company to revise and review an order of the District Court. Order affirmed. Carr & Carroll, of Camden, N. J., for petitioner. Bilder & Bilder, of Newark, N. J., for trustee. Willis T. Porch, of Pitman, N. J., for respondent. Before WOOLLEY and DAVIS, Circuit Judges, and THOMPSON, District Judge.

WOOLLEY, Circuit Judge. This cause came on to be heard on the transcript of record from the District Court of the United States, for the District of New Jersey, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged and decreed by this Court, that the order of the said District Court in this cause be, and the same is hereby af firmed with costs.

In re STANDARD AERO CORPORATION OF NEW YORK. (Circuit Court of Appeals, Third Circuit. June 30, 1921.) No. 2745. Petition to Revise an Order of the District Court of the United States for the District of New Jersey. Involuntary bankruptcy proceeding against the Standard Aero Corporation of New York. On petition by the bankrupt to revise an order affirming rulings of the referee, opposed by Charles H. Leonard, petitioning creditor, and Harry A. Oetgen, trustee. Affirmed. See, also, 270 Fed. 779, 783. Heine, Bostwick & Bradner, of Newark, N. J., for petitioner. McDermott & Enright, of Jersey City, Robert Richards, of Carson City, Nev., and Wm. H. Heald, of Wilmington, Del., for respondent. Before WOOLLEY and DAVIS, Circuit Judges.

WOOLLEY, Circuit Judge. This cause came on to be heard on the transcript of record from the District Court of the United States, for the Dis

trict of New Jersey, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged and decreed by this Court, that the order of the said District Court in this cause be, and the same is hereby af firmed, with costs.

STEVENS v. ARNOLD et al. (Circuit Court of Appeal, Third Circuit. August 2, 1921.) No. 2642. Appeal from the District Court of the United States for the District of New Jersey; Thomas G. Haight, Judge. Suit by Samuel F. Nirdlinger against Henry E. Stevens, Jr., in which Arthur S. Arnold and others, executors and trustees, were substituted as parties on the death of plaintiff. From a decree for complainants (262 Fed. 591), defendant appeals. Affirmed. Carr & Carroll, of Camden, N. J., for appellant. Bourgeois & Coulomb, of Atlantic City, N. J. (Robert H. McCarter, of Newark, N. J., of counsel), for appellees. Before BUFFINGTON, WOOLEY, and DAVIS, Circuit Judges.

PER CURIAM. This suit, instituted in the District Court to try the title to land made by accretions to fast land on the ocean front of Atlantic City, was brought under a statute of New Jersey (4 Comp. Stat. 5399) providing procedure almost the precise opposite of that of the common-law action of ejectment. It followed a like action brought with respect to the same land in the state court (Dewey Land Co. v. Stevens, 83 N. J. Eq. 314, 90 Atl. 1040), and there dismissed. The decree from which this appeal is taken overruled the defense of res adjudicata and determined the title to the land in question, in so far as it was affected by the claim of the defendant, to be in the plaintiff. The principles on which this decree was grounded were given by Judge Haight in an opinion written with great care and elaboration. (D. C.) 262 Fed. 591. As we are in complete accord with all his views, we find no occasion to repeat them in an opinion of our own. We therefore affirm the decree below on the opinion filed.

ATCHISON, T. & S. F. RY. CO. v. COLLINS et al. (District Court, N. D. California, N. D. June 30, 1921.) No: 48. Suit in Equity by the Atchison, Topeka & Santa Fé Railway Company against R. E. Collins and others. On motion for preliminary injunction. Denied. Edgar W. Camp and

M. W. Reed, both of Los Angeles, Cal., and Platt Kent and M. C. Sloss, both of San Francisco, Cal. (Gardiner Lathrop, of Chicago, Ill., of counsel), for complainant. U. S. Webb, Atty. Gen., of the State of California, Robert W. Harrison, Chief Deputy Atty. Gen., and Frank L. Guerena, Deputy Atty. Gen., for defendants. Before MORROW, Circuit Judge, and DOOLING and DIETRICH, District Judges.

PER CURIAM. This matter coming on to be heard upon the application of complainant for an injunction pendente lite as prayed for in its bill of complaint, it is ordered that said application be denied, provided that, in the event this action be not tried and determined upon the merits before such time as a penalty shall accrue under the laws of the state of California for the nonpayment of any portion of the tax complained of, then such penalty shall only be computed upon the amount due and unpaid in excess of such tax over an amount equal to such portion of $1,833,404.92 as would, if not paid, then incur such penalty, and the state of California and its fiscal agents are authorized and directed to receive at the proper time or times such proportion of said sum of $1,833,404.92 as they would be authorized to receive if such sum of $1,833,404.92 were the whole amount of the tax levied upon the operative properties of complainant for the year 1921. It is further ordered that the payment or payments by the complainant to the state as herein authorized and directed, and the receipt of such payment or payments by the state, shall not prejudice the rights