Page:Federal Reporter, 1st Series, Volume 8.djvu/415

CHAMBEBLAIN V. MABSHALL. 401 �Black, 430, 444; West v. Schnelly, 54 111. 523; Huntingdon v. Allen, 44 Miss. 654; Stark v. Starrs, 6 Wall. 403. �Aud as to the defendant's title, if its validity is merely doubtful, it is more than a cloud, and he is entitled to have it tried by an action at law ; and if it is invalid on its face, so that it can never be • successfully maintained, it does not amount to a cloud, but may always be repelled by an action at law. Overing v. Foote, 43 N. Y. 290; Meloy v. Dougherty, 16 Wis 269. �Justice Story says : �" When the illegality of the agreement, deed, or other instrutiient appears , upon the face of it, so that its nullity can admit of nodoubt, the same reason for the interference of courts of equity to direct it to be cancelled ordelivered up would not seem to apply, for, in such a case, 'there can be no danger that the lapse of time may deprive the party of his fall means of defence; nor can it, in a just sehse, be said that such a paper can throw a cloud over his right or title, or diminish its security; nor is it capable of being used as a means of vexations litigation or serious injury." 2 Eq. Jur. § 700a, �And the supreme court in that case cites with approbation from the opinion of the supreme court of Mississippi, in a case between the same parties, (Phelps v. Harris, 51 Miss. 789,) as follows: �" This jurisdiction of equity cannot properly be invoked to adjudicate upon the conflicting titles of parties to real estate. ihat would be to draw into a court of equity from the courts of law the triai of ejectraeuts. * * * The proper forum to try titles to land is a court of law, and thie jurisdiction can- not be withdrawn at pleasure and transferred to a court of equity under the pretence of removingclouds from title." �In the present case, it appears from the bill itself that the com- plainant bas not the legal title. The allegation is that the patent purporting to have been obtained by the defendant from the United States is void on its face, and ab initia, for want of authority on the part of the executive officers who have signed and issued it, and by virtue of a positive prohibition of an act of congress. If so, it neces- sarily results that the legal title to the land in controversy never passed from the United States, and is still vested in it. It also and with equal certainty results that there is no equitable estate in the land subsistiiig either in the defendant or the complainant ; for the legislative declaration which makes the patent void, is based upon a prohibition which takes away from the entry and survey upon which the patent professes to be based all legal effect, and restores the land to the public lands of the United States precisely as if no entry, sur- vey, or patent had ever been made or issued. There is nothing left, v.8,no.6— 26 ��� �