10 FEDERAL nsronrna.
such plat included a part of this right of way. That plat was made
and Bled in 1867, 17 years before this bill was Bled. It charges that
two defendants, the president and secretary of that company, executed
and filed this plat, and that the other defendants, on whose behalf
· alone this demurrer is Bled, claim title by deeds from that town com-
pany of lots situated upon this right of way. When these deeds
were made it is not alleged, but generally that these defendants claim
title to the property by virtue of sundry conveyances made after the
Bling of the plat.
Two points are made: First, it is said thatthese defendants are -
in possession, and that a bill to quiet title will not lie against them.
Well, if the bill showed that the defendants were in possession, I
should think this ground of the demurrer was well taken. The
plaintiff has a legal title. I do not understand that a party having
' a legal title, and out of possession, can maintain a bill to quiet title
i against one in possession. Under the old equity rule, possession by
· the plaintiff was a necessary condition of such an action. Our
statute enlarges this, and authorizes one out of possession to main-
tain the same kind of an action against one also out of possession.
In Holland v. Challen, 110 U. S. 15, S. C. 3 Sup. Ct. Rep. 495,
the supreme court of the United States sustained the validity of a
similar statute of Nebraska, and held it applicable to proceedings in
the federal courts. But in that opinion the court very clearly in-
itimated—of course it was not necessary to decide the question—that
no state statute, or other statute, could transfer at purely legal cause
of action to a court of equity. If the plaintiff has a legal title to the
land, and the defendant is in possession, an action of ejectment is
the legal remedy; and in it the constitution of the United States
guaranties the right of trial by jury, and the plaintiff cannot avoid
that constitutional provision by Bling a bill to quiet title. But I do
not read the allegations of the bill as showing possession to the
defendants in terms, and while there are some expressions that point
in that direction, yet the matter is left open. lf I could take the
statements of counsel on argument, the probabilities are that the
defendants are in possession, or some of them, at least. But I must
_ act on the bill as it reads, and upon its allegations I think that
g1·ound of demurrer cannot be sustained. And the other is equally
defective. That raises the question of the statute of ·li1nitations. It
does not appear what the deeds are, under which the defendants claim,
or when they were executed or recorded. It makes no difference
what was done 20 years ago by other parties. That may be the
foundation of an action against such parties, but it is not shown
that the deeds under which these defendants assert title were exe-
cuted, or that the claims which they make accrued to them at any
time beyond the statute of limitations; so that in that respect the
demurrer will be overruled, and leave to answer by the August rule
granted, —