the parties, is that McKinney was the purchaser of the land, and that Lindsey and Myers advanced the purchase money, and that the deed to them was held in escrow until McKinney paid the amount advanced by them; that the deed was, upon its payment, put in the possession of McKinney, and by him delivered up to Hamilton, who executed the second deed, dating it as of the day of the deed to Lindsey and Myers, and immediately acknowledging its execution for the purpose of registration, thereby enabling McKinney to convey to Cathcart and Johnston. This large body of land, it will be noted, is described as being "commonly called desert," and its value was then, as now, largely speculative. Until the deed to Lindsey and Myers had been recorded, the title was imperfect-sometimes said by the court inchoate; it could be arrested by a redelivery to the grantor. Linker v. Long, 64 N. C. 298.

The fact that McKinney had the Lindsey and Myers deed, before acknowledgment and registration, in his possession, and surrendered it to Hamilton, who, on the same day, executed the deed to McKinney, is explained by the indorsements found on it. It is also significant that Lindsey and Myers, so far as the record discloses, made no conveyance of the land, and no one asserts any title or claim under it. This would seem to lead to the conclusion that the deed to McKinney of October 20, 1794, was signed and delivered on March 3, 1795, and that the Lindsey and Myers deed was, at that time, surrendered to Hamilton. The effect of this arrangement was to vest the title in McKinney, and, by his deed, in Cathcart and Johnston. Why, two years thereafter, Hamilton acknowledged and put to registration the Lindsey and Myers deed, is difficult to understand; but whatever his purpose may have been, his act did not affect the title of McKinney and those claiming under him. By virtue of the statute his act, in acknowledging and registering the deed on March 4, 1795, was valid to pass the estate in the land to McKinney. That McKinney accepted the deed is manifested, both by his declaration, indorsed on the Lindsey and Myers deed, and his conveyance of the land, on the same day, to Cathcart and Johnston.

[8] Defendant, however, insists that, conceding the title to have been in them, it has been divested by the sales for taxes and the deeds executed by Grice, sheriff, September 8, 1812, and Pool, sheriff, September 10, 1818. It will be noted that both were sheriffs of Pasquotank county. The first deed conveys 19,520 acres, by metes and bounds; and the second conveys the remainder of the Hamilton grant, less one acre, all described as lying and being situate in Pasquotank county. Whatever portion of the land covered by the grant may have been included within the boundaries set forth in these deeds, it is manifest that no part of the land lying in Perquimans county passed under them. The sheriffs of Pasquotank county had no authority, under the tax list of that county, treated as an execution, to sell land in Perquimans. county, and their deeds were ineffectual to pass any title to such land. It being conceded that the land covered by the grant to defendant Vyne is situate in Perquimans county, it must follow that the title thereto was not affected by these two deeds, or either of them.

The defendant relies upon the recitals in these deeds to sustain the tax sales, and cites the case of State Board of Education v. Remick, 159 N. C. —, 76 S. E. 627, for that purpose. That case is correctly decided. There the land, at the sale by the sheriff, was bought by the Governor for the state, and, by legislation, the title thus acquired was vested in the Board of Education. The statute making the recitals presumptive evidence of their truth is clearly constitutional, as held by the court in that case. Giving to the recitals in the two sheriff's deeds full force and effect, several fatal defects are apparent. It is unnecessary to discuss them, because the sheriff had no authority to sell the land in Perquimans county. They locate the land in Pasquotank, although the defendant's evidence tends to show that the boundaries set out include the land in controversy in Perquimans.

Defendant further insists that the evidence shows that the grantees in those deeds conveyed portions of the land to other persons, and that by successive conveyances, set out in the evidence, the title to such portions is in persons who are strangers to plaintiff's title. Conceding this to be true, and conceding that, in an action of ejectment, defendants could defeat a recovery by plaintiff by showing an outstanding title in a stranger, it is evident that no adverse possession of the locus in quo is shown. The defendant's entire contention in regard to the land claimed by them, and the only contention upon which the grant to Vyne can be sustained, is that the land covered by it was, prior to the date of his grant, vacant and unappropriated land. It is uncleared, and its chief value consists of the standing and growing timber thereon. It is a part of the Dismal Swamp-low, flat land. The evidence tends to show that it is not included in the boundaries contained in the deeds under which the persons living upon other portions of the Hamilton grant claim title. I am of the opinion that there is no evidence of an ouster, followed by adverse possession, sufficient to take title. out of the plaintiff.

[9] It is conceded that before plaintiff can maintain his suit, and have a decree removing a cloud from his title, he must show that he has the legal title to either the whole or an undivided interest in the land. Dick v. Foraker, 155 U. S. 404, 15 Sup. Ct. 124, 39 L. Ed. 201. But for the provisions of the North Carolina statute (Pell's Rev. § 1589), plaintiff would be required to show that he was in possession. New Jersey, etc., L. Co. v. Gardner-Lacy & Co., 178 Fed. 772, 102 C. C. A. 220. Under the provisions of the North Carolina statute, the owner of land, although not in possession, may bring an action to remove a cloud from his title.

[10] It has been held that the remedy given by statutes of this character may be enforced in the federal court when the parties are inhabitants of different states. Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. 495, 28 L. Ed. 52.

[11] To the suggestion that plaintiff's ancestors have not, for many years, paid the tax on the land, it is sufficient to say that the failure to do so does not, under any statute in force in this state, work a forfeiture of title, otherwise than by a sale conducted in conformity with the law.

[12] At the date upon which the grant of the locus in quo to Vyne was issued the statute provided that:

"Every entry made, and every grant issued for lands not authorized by this chapter to be entered or granted shall be void, and every grant of land made since the sixth day of March, one thousand eight hundred and ninety three, in pursuance of the statutes regulating entries and grants, shall if such land or any portion thereof has been heretofore granted by this state, so far as relates to any land heretofore granted, be absolutely void for all purposes whatever, shall confer no rights whatever, upon the grantee or grantees therein, or those claiming under such grantee or grantees, and shall in no case, and under no circumstances constitute color of title whatsoever to any person whomsoever." Laws 1893, c. 490; Pell's Rev. § 1699.

If, therefore, the land in controversy is included within the boundaries of the Hamilton grant, as it manifestly is, the grant to Vyne is absolutely void for all purposes. If the plaintiff is the owner of an undivided interest in the land, it would seem that he is entitled, to the extent of such interest, to have the relief for which he prays in his bill.

[13, 14] It seems to be well settled that a court of equity has juisdiction to remove, as a cloud from title, any deed, grant, or other muniment of title, valid upon its face, the invalidity of which can only be shown by extrinsic evidence. It is said:

"Equity interferes to remove clouds upon title, because they embarrass the owner of the property clouded, and tend to impede his free sale and disposition of it. A cloud upon title is, in itself, a title or incumbrance, apparently valid, but in fact invalid. It is something which, nothing else being shown, constitutes an incumbrance upon or a defect in it; something which shows prima facie the right of a third party, either to the whole or some interest in it, or a lien upon it. The doctrine relating to cloud upon title is founded upon true principles of equity jurisprudence, which is not merely remedial, but is also preventive of injustice. If an instrument ought not to be used or enforced, it is against conscience for the party holding the same to retain it, since he can only do so with some sinister or wrongful design. If it is a deed purporting to convey lands, which creates an apparent incumbrance, its existence in an uncanceled state necessarily is calculated to throw a cloud over the title." Note to Busbee v. Macy, 85 N. C. 329, in Remedies by Selected Cases, Mordecai, 184; Rich v. Braxton, 158 U. S. 375, 15 Sup. Ct. 1006, 39 L. Ed. 1022.

[15] In Ogden City v. Armstrong, 168 U. S. 224, 238, 18 Sup. Ct. 98, 103 (42 L. Ed. 444), it is said:

*

"One branch of equity jurisdiction is the removal of apparent clouds upon the title, which may diminish the market value of the land and possibly threaten the loss of it to the owner. When the illegality or fatal defect does not appear on the face of the record, but must be shown by evidence aliunde, so that the record would make out a prima facie right in one who should become a purchaser, and the evidence to rebut this case may be lost, or become unavailable from death of witnesses, or when the deed given on a sale of the land for the tax would be presumptive evidence of a good title in the purchaser, so that the purchaser might rely upon the deed for a recovery of the land until the irregularities were shown, courts of equity regard the case as coming within their jurisdiction, and have extended relief on the ground that a cloud on the title existed or was imminent." Acord v. West Poc. Corp. [C. C.] 156 Fed. 989.

The case made upon this record comes clearly within the principle announced. The grant to Vyne is regular, and, upon its face, valid

to vest title in him. Its invalidity can only be disclosed by showing that the land granted is within the boundaries of a grant issued more than a century since for 26,000 acres of land. To do this involves immense trouble and expense. The surveys made in this case and the evidence necessary to locate the boundaries of the Hamilton grant, showing that the grant to Vyne is included in it, must have required a large expenditure of money. Until this was done, the claimant under the Vyne grant had an apparently perfect title, and in an action of ejectment by him it would have been very difficult to have successfully resisted a recovery; yet it is manifest, in the light of the evidence and the surveys, that the state parted with its title on December 27, 1792. A decree may be drawn in accordance with this opinion.

It appears that, prior to filing the bill, plaintiff took actual possession of the land, so far as it is capable of being occupied. The evidence tends to show that defendant Leonard Vyne has never been in the actual possession; that he entered into some contract, the exact terms of which are not shown, with defendant Kramer Bros. & Co., a corporation, for the sale of the timber on the land. It is manifest. that its chief value consists in the timber. The defendants will be enjoined from setting up said grant, or asserting title thereunder to the land described in the said grant, from the state to Leonard Vyne of February 7, 1906, No. 16,788, as against the plaintiff, and from cutting or removing any timber from said land. Plaintiff will recover

his cost.

RICHARDSON v. PENNSYLVANIA COAL CO.

(District Court, M. D. Pennsylvania. January 31, 1913.)

No. 154.

1. COURTS (§ 262*)-JURISDICTION OF FEDERAL COURTS-EQUITY-ADEQUATE REMEDY AT LAW.

The adequate remedy at law which will exclude the equity jurisdic tion of a federal court is that which existed when the Judiciary Act of 1789 (Act Sept. 24, 1789, c. 20, 1 Stat. 73) was adopted, unless subsequently changed by Congress, and a matter which was then cognizable in equity is so still notwithstanding enlargement of legal remedies by the states; but, unless it comes within some of the then recognized heads of equitable jurisdiction, it cannot be entertained.

[Ed. Note. For other cases, see Courts, Cent. Dig. §§ 797, 798; Dec. Dig. § 262.*]

2. QUIETING TITLE (§ 35*)-SUIT TO REMOVE CLOUD-EQUITY JURISDICTION. A bill in equity, alleging that complainant is the owner and in possession of certain land, but without setting out his title, and that defendant repeatedly commits trespass thereon under some claim of right and interest in the land, the nature of which is unknown to complainant, does not state a cause of action for removal of a cloud on title, since such a suit will not lie where there is a mere verbal assertion of ownership by defendant, and it does not appear that complainant has not an adequate remedy at law.

[Ed. Note. For other cases, see Quieting Title, Cent. Dig. §§ 73, 74; Dec. Dig. § 35.*]

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

3. INJUNCTION (§ 118*)-SUFFICIENCY OF BILL.

Such bill also held insufficient to state a cause of action within the equity jurisdiction to avoid a multiplicity of suits, or for an injunction to prevent continued trespasses or waste, the only allegation as to the effect of defendant's acts being that they would create ruts, beaten tracks, and roadways on the land, which does not constitute waste in a legal sense, and the bill furthermore, taken as a whole, leaving it open to inference that the question involved is one of title which should be determined in an action at law.

[Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 223-242; Dec. Dig. § 118.*]

4. DISCOVERY (§ 19*)-IN EQUITY-SUFFICIENCY OF BILL.

It is essential to a bill of discovery that it set forth a title in the complainant which is sufficient to support or defeat a suit, and that it pray a discovery pertinent to that title and nothing beyond.

[Ed. Note. For other cases, see Discovery, Cent. Dig. §§ 20-26; Dec. Dig. § 19.*1

In Equity. Suit by Henry Richardson against the Pennsylvania Coal Company. On demurrer to bill. Demurrer sustained.

Frank S. Moore, of New York City, Edward T. Moore, of Passaic, N. J., and Watson, Diehl & Watson, of Scranton, Pa., for plaintiff. Warren, Knapp & O'Malley, of Scranton, Pa., for defendant.

WITMER, District Judge. This is a bill in equity, wherein Henry Richardson, a citizen of the state of New Jersey, is plaintiff, and the Pennsylvania Coal Company, a Pennsylvania corporation, is defendant. Upon its face the bill involves a question of disputed title to 3,500 acres of land, more or less, situate in Shohola township, Pike county, Pa., which disputed title the plaintiff seeks to have determined by a chancellor in equity. The defendant has demurred to the bill, and the controversy is before the court upon bill and demurrer. The demurrer is to matters of substance and form, and must be taken to admit all such matters of fact as are sufficiently pleaded therein. Stephen's Pleading (Heard's Ed. 1867) p. 143. But it does not confess matters of law deduced from facts therein pleaded. Stephen's Pleading, supra, p. 143, note 2-i; Preston v. Smith (C. C.) 26 Fed. 884.

After describing the lands particularly, the bill proceeds, in the fourth paragraph thereof, as follows:

"That your orator is the owner of the title of said land. That the said defendant claims an interest and certain rights in said premises adverse to the claim of your orator, but that the nature of said claim of defendant is unknown to your orator. That the claims of said defendant and each of them is without any right whatsoever, and that the defendant has no estate, right, title, or interest whatsoever in said land and premises or any part or portion thereof."

Averring, in the third paragraph, that the plaintiff "now, and for a long time hitherto, has been in the possession" of the lands and premises described in the bill, the plaintiff proceeds to charge, in the sixth paragraph, as follows:

"That defendant is the owner of or in possession of certain land and premises adjacent to and adjoining the above mentioned and described land and premises (being the lands described in the bill) belonging to your orator, For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes