Page:Federal Reporter, 1st Series, Volume 8.djvu/414

400 FEDESAL REPOBTBB. �In the fall of 1849 the grantees entered into actual possession o£ the tract, enclosed it, cleared it in part, built a dwelling upon it, cultivatea, and other- wise improved it. This possession has ever since been kept up by their suc- cessors in the title, the present complainant deriving title by several mesne conveyances f rom them. Since the fall of 1849 the possession of the com- plainant has been, with that of his predecessors, under color of title, adverse, open, notorious, and oniiiterrupted. Prior to that time the tract was in forest and not redncedto any actual occupancy. �On November 20, 1879, the defendants in this suit commenced in this court their action at law against the complainant to recover possession of the land in contre versy. �The object and prayer of the bill in this suit is that the patent be cancelled, and perpetually to enjoin the prosecution by the defendants of their action at law; that they be required to release and convey all elaira to the land to the complainant, and to establish and quiet the title and possession of the com- plainant. �The claim of the complainant is that he is in possession of the land, with a complete and perfect equitable title as against the defendants, which hebas a^ right to haye established and quieted by the process of this court. �This claim is based on three grounds: �(1) That the patent of January 25, 1878, is void, there being at that time no law in force authorizing its issue, and that consequently the naked legal title is outstandihg in the United States ; (2) that the tax title under which the complainant, and those through and from whom he derived title, claim, if not shown by the proof to be suflEicient and valid, will, after long-continued ad- verse possession, under such circumstances as are shown in proof, be presumed to be good ; (3) that a similar presumption will arise that the original equity of Robert Marshall, under his entry and survey, to a patent, was transferred and conveyed to the complainant, or those under and through whom he derives title. �It is obvious that this bill cannot be supported as a bill qxda timet, as . known to the equity jurisprudence of chancery courts. In describing the grounds of that jurisdiction, the supreme court of the United States, in the case of Phelps v. Harris, 101 U. S. 376, say: �" The questions, what constitutes such a cloud upon the title, and what character of title the complainant himself must have in order to authorize a court of equity to assume jurisdiction of the case, are to be decided upon prin- ciples which have long been established in those courts. Prominent among these are — Fi7-st, that the title or right of the complainant must be clear; and, seoondly, that the pretended title or right, which is alleged to be a cloud upon it, must not only be clearly invalid or inequitable, but must be such as may, either at the present or at a future time, embarrass the real o vvner in controvert- ing it. For it is held that when the complainant himself has no title, or a doubtful title, he cannot have this relief." "ihoseonly," said Mr. Justice Grier, "who have a clear, legal, and equitable title toland, conneeted with pos- session, have any right to claim the interference of a court of equity to give them peace, or dissipate a cloud in their title." �Orton V. Smith, 18 How. 265; and see Ward v. Chamberlain, 2 ��� �