Page:Federal Reporter, 1st Series, Volume 8.djvu/419

CHAMBEBLAIN V. MABSHALL. 405 �not so much for the purpose of a decision as to its effect upon the va- lidity of the defendant's patent, as to show, as it clearly does, that, if that effect is what the complainant claims, then it also takes from the complainant any right to insist that hehas acquired and is now invested with any estate in the lands by virtue of his tax deed, or any grant, actual or presumed, from the defendant, of his rights under the entry and survey. AU such rights, on both parts, have equally corne to naught by the same supposition. �There is, therefore, no ground in equity for maintaining the present bill as a bill to quiet the complainant' s title. It is argued, however, that this bill may be maintained upon the provisions of section 5779 of the Revised Statutes of Ohio. It reads as follows : . �"An action may be brought by a person in possession by himself or tenant ■of real pioperty, against any person who claims an estate therein adverse to him, for the purpose of determining such adverse estate or interest." �Prior to the adoption of this provision in the Code of Civil Precedure in this state, and under the provisions of a staiute regulating the practice in chancery, it was held by the supreme court of Ghio that to maintain a bill quia timet it was necessary that the complainant should have both the legal title and the actual possession of the real estate, (Douglas v. Scott, 5 Ohio, 196 ; Clark v. Hvhbard, 8 Ohio, 385 ; Thomas v. White, 2 Ohio St. 540 ;) although in Buckanan v. Roy'a Lessee, 2 Ohio St. 267, it was held that it might be maintained if the complainant had acquired a valid title merely by the length of his possession. �In the case of Ellistkorpe v. Buck, 17 Ohio St. 72, which arose upon the provision now in force, a bill was filed to establish a disputed boundary, and the objection was made that the defendant had been denied the right to a trial by jury. The objection was overruled on the ground that the plaintiff could not have obtained the relief sought by an action for the recovery of real property, and that the remedy provided by this provision, so far as applied to that case, was in harmony with the more ancient rules of equity jurisprudence, which gave relief, where the recovery of possession is not asked, in cases where the controversy arises out of a confusion of boundaries. �In Collins v. Collins, 19 Ohio St. 470, the court, speaking by Welch, J., said: �"As a general rule t'ie bill of peace ou'rl no'- le rra'n'a'ned unless the pla.iiitifE had flrst establ shed his right at l;i w. On ■ < xceptii n to this general iule was where the par ies were so iiuraeious, or s 't uj> tl eir spv. rai claims in such fonn, as to render a trial o: the right at law inipratticable. Another ��� �