to claim payment. The principal may sue on such an insurance contract, made for his benefit. Story, Ag. §§ 160, 160a, 394.

2. I think the libel should show that the assured had an interest in the vessel when the policy was issued and purported to take effect. The word "hereinafter" does not strictly cover this point; doubtless by inad

vertence.

3. It is the rule, in this circuit, at least, that in actions on marine policies of insurance the presumption is of the seaworthiness of the vessel, and that the onus of the defense of unseaworthiness is upon the underwriter. Lunt v. Insurance Co., 6 Fed. Rep. 562, and cases cited; Batchelder v. Insurance Co., 30 Fed. Rep. 459. See Pickup v. Insurance Co., L. R. 3 Q. B. Div. 594. The primary rule in pleading is that what must be averred must be proved; and, conversely, that what the law presumes and need not be proved, need not be averred; also, that the plaintiff need not aver what more properly comes from the other side. 1 Chit. Pl. *221, *222. When, then, it is determined that no proof of seaworthiness need be given, all reason for requiring an averment of seaworthiness in the libel disappears. The defendant, if he wishes to raise that issue, can do so by his answer with equal convenience, and more properly; and this rule, in admiralty practice, tends to simplify the pleadings, to dispense with needless technicalities, and to promote certainty as to the real issues intended to be tried. All the references in adjudged cases to the need of averring seaworthiness proceed upon the supposed need of supplying some prima facie evidence of it. When the legal presumption dispenses with such proof, it should be held to dispense with the averment also; and, as I have said, this rule is a desirable and beneficial one in practice. Guy v. Insurance Co., 30 Fed. Rep. 695. The first and third exceptions are therefore overruled; the second, sustained.

BROWN et al. v. CRANBERRY IRON & COAL Co.

(Circuit Court, W. D. North Carolina. November Term, 1889.)

PARTITION-DISPUTED TITLE-STAY OF PROCEEDINGS.

Where defendant in partition denies complainant's title, it is proper to stay proceedings in the suit for a year, so that complainant may establish his title by an action in ejectment.

In Equity. On motion to stay proceedings.

Suit by John E. Brown and W. B. Carter against the Cranberry Iron & Coal Company.

Moore & Merrick, for complainants.

W. A. Hoke and J. W. Bowman, for defendant.

DICK, J. This suit in equity was instituted for the purpose of obtaining partition of the mineral interests in the lands described in the bill of complaint. The plaintiff's assert a legal title to such minerals, as tenants in common with the defendant company. In its answer the defendant company denies the title of the plaintiffs, and avers that for many years it has had sole ownership and seisin of the soil and of the minerals of the lands mentioned in the bill of complaint; and further insists that, if the plaintiffs ever had any legal or equitable interests as claimed, they have lost their right to institute this suit by lapse of time; and they are also bound by the matter of equitable estoppel set up in the answer. Replication was filed, and proofs have been taken by the parties on both sides. On the rule-day in November, 1889, a motion was duly entered on the order-book in the clerk's office by the counsel of the defendant, to set down this case for hearing upon the pleadings and the proofs. Objections to this motion were entered by the counsel of the plaintiffs, and they also entered a motion for an order to suspend further proceedings in this suit, and to allow the plaintiffs a reasonable time to establish their legal title, and regain joint possession by an action at law in the nature of an action of ejectment, and that the defendant be required to admit an ouster on the trial at law. These motions are now before me for hearing.

There can be no doubt that minerals in place in the earth may be owned and conveyed as real estate, and the owner have a freehold in the same. Such interest may be held by different persons as tenants in common, even if one of them had a fee-simple title to the soil in which the minerals are imbedded. If the plaintiffs had commenced special proceedings for partition in a court of this state, they could have had a speedy and adequate remedy, as such court has ample jurisdiction to adjust and determine all questions at law and equity in one proceeding. As the plaintiffs are non-residents, they have an undoubted right to institute their suit in this court, and are under no obligation to seek remedy and relief in a state court. They could not, on the law side of this court, avail themselves of the proceedings for partition provided for by v.40F.no.15-54

the local laws, as such proceedings blend legal and equitable questions and modes of procedure. If such proceedings were instituted against them in a state court, and were removed to this court upon their application, the case thus removed would be placed on the equity side of the docket.

The concurrent jurisdiction of a court of chancery to entertain suits for partition of lands has long been established, and has often been exercised, both in England and in this country, where the legal title is undisputed. When the defendant denies the title of the complainant, and his right of joint possession, it is the usual course and practice of a court of chancery to retain the bill, stay proceedings, and allow the complainant a reasonable time for trying his title, and re-establishing the unity of possession with his alleged co-tenant by an action of ejectment. Questions pertaining to a legal title and the nature of possession are matters of law, and should be decided by a judge and jury in a legal tribunal. This was the method of practice and procedure that prevailed in the courts of equity in this state before the abolition of such courts by our new constitution, and the adoption of a code system, which required all legal and equitable remedy and relief to be sought by civil action or special proceedings. Garrett v. White, 3 Ired. Eq. 131; Ramsay v. Bell, Id. 209; McBryde v. Patterson, 73 N. C. 478. These state statutes cannot limit or regulate the jurisdiction of a federal court sitting in this state, enforcing and administering the rights of non-resident litigants, although such rights subsist, or have been acquired, under the laws of the state. There is no doubt as to the jurisdiction of this court in the case before me.

The plaintiffs have not set forth their own and the title of the defendant with that particularity and detail that would entitle them to a decree of partition of the property in controversy. This defect could be cured by an amendment, which I would readily allow on account of the peculiar features of this case. In allowing the plaintiffs time and opportunity for bringing an action on the law side of this court, to establish their legal title and unity of possession, no injustice or hardship will result to the defendant company or its legal title. Its sole seisin and long adverse possession, and the alleged matter of equitable estoppel, can be employed in defense in such action at law. Kirk v. Hamilton, 102 U. S. 68-79. If the plaintiffs should succeed in their action at law in establishing their legal title as tenants in common with the defendant, some difficulty may arise as to how partition is to be effected, as mineral interests in lands are necessarily of unknown value, and not capable of partition without a sale; and a sale may result in depriving the owner of the soil of its possession in the minerals, or forcing it to pay an exorbitant price for such property. I will not anticipate other difficulties that may be encountered until they arise on hearing this case upon further directions.

Let an order be drawn staying proceedings in this case, and granting the plaintiffs one year to bring and prosecute their action at law, and allowing the depositions taken in this case to be read in evidence on the

trial of such action. No formal order is necessary, requiring the defendant to admit an ouster on the trial, for the claim of the defendant of sole title and exclusive adverse possession amount to an ouster for the purposes of the action at law, which will be tried on the law side of this court.

CENTRAL TRUST CO. OF NEW YORK v. IOWA CENT. Ry. Co. et al.

(Circuit Court, N. D. Illinois. December, 1889.)

SALE-CONDITION-FORFEITURE-RES ADJUDICATA.

The intervenors, being the owners of certain railroad property, sold the same to the railway company, taking in payment transportation certificates of said road. The agreement of sale provided that the road so purchased should be completed within two years; otherwise, the agreement to be void. The road was not com. pleted within that time, and the intervenors gave notice of their election to declare the agreement void. Meantime the rights of the company had passed to the defendant, who brought suit against the intervenors, in the state court, to compel a specific performance, bringing into court the transportation certificates. The intervenors filed a cross-bill, asking for a forfeiture of the agreement of sale; which bill was dismissed, the decree reciting that it was without prejudice, except as to the right to claim or assert a forfeiture of the agreement. This decree was not appealed from. Held, in an action to foreclose a mortgage upon defendant's property, that the right of the intervenors to claim a forfeiture of the agreement was concluded by the decree of the state court, which is still in full force and effect, and their petition, asking for such forfeiture, must be dismissed.

In Equity. Bill to foreclose.

In the matter of the intervening petition of Thomas B. Cabeen, Robert J. Cabeen, and George Seaton.

H. Bigelow and J. C. Pepper, for intervenors.

Anthony C. Daly and Gardner, McFadon & Gardner, for Iowa Central Railway Company.

GRESHAM, J. The Keithsburg & Eastern Railroad Company was organized to construct and operate a railroad between Keithsburg, in Mercer county, Ill., and Monmouth, in Warren county. It acquired right of way, depot grounds, and some terminal facilities, mainly in Mercer county. The company became embarrassed. Judgments were entered against it, and its property was bought by the intervenors, in 1878, at sheriff's sale. The Peoria & Farmington Railway Company was organized to build and operate a railroad from Peoria to a point on the Mississippi river, and on February 22, 1881, this company had extended its road to a point near Monmouth, and, desiring to still further extend it to Keithsburg, on the Mississippi river, bought through its officers, E. P. Phelps and William Hanna, from the intervenors all of the property they had purchased at sheriff's sale, in consideration of $25,000 in transportation certificates of the Peoria & Farmington Company, to be delivered upon the completion of the line from Peoria to Keithsburg. The agreement of sale provided that the purchaser should take immediate possession; that the line should be completed by February 22, 1883,

and, if not so completed, the entire agreement should be void.

A copy of the transportation certificates was attached to the agreement, and reads thus:

"OFFICE PEORIA & FARMINGTON RAILWAY COMPANY.

"The holder hereof is entitled to freight transportation over the line of the Peoria & Farmington Railway, at regular tariff or contract rates, to the amount of $25, on presentation of this certificate: provided, that said certificate shall be good and receivable in payment of but one-fourth of any single bill of freight, but may also be used in payment of one-fourth the price of one thousand mile tickets."

The Peoria & Farmington Company at once went into possession of the property so purchased by it and proceeded to fulfill its contract, but did not complete its road to Keithsburg until March 25, 1883, which was one month beyond the time prescribed in the contract. While the work was progressing, but before the road was co...pleted to Keithsburg, the Peoria & Farmington Company changed its name to the Iowa Central Railway Company of Illinois. At the expiration of the two years provided in the contract, the intervenors notified the Iowa Central Company of their election to declare the agreement void, because it was not performed within the time specified. In March, 1883, and a few days be fore the completion of the road, the Iowa Central Company and Hanna and Phelps commenced a suit in the circuit court of Warren county against the intervenors, for specific performance of the agreement of February 22, 1881, and brought into court, for the intervenors, transportation certificates amounting to $25,000. The intervenors filed an answer and cross-bill, in both of which they averred that the agreement had not been completed within two years, and that it had been forfeited. The cross-bill prayed for a decree declaring the agreement forfeited and void, and that the property be returned to the intervenors. This suit was heard on the bill and cross-bill on the 11th of July, 1885. The bill was dismissed without prejudice, and the cross-bill was dismissed "without prejudice, so far as any action at law upon the contract is concerned, and without prejudice to any equitable rights or defenses the defendants may have in any case hereafter arising between the parties hereto, on, or growing out of, the contract set up in this case, except the right to claim or assert a forfeiture of said contract." Neither party appealed from this decree, and it remains in full force, and the transportation certificates are still in the state court, where the intervenors can at any time receive them. On December 1, 1886, the Central Trust Company of New York commenced a suit in this court against the Central Iowa Railway Company to foreclose mortgages executed by it upon its line of railway, after the making of the agreement of February 22, 1881; and in that suit a receiver was appointed, who took possession of the property. A decree of foreclosure was entered, and the property embraced in the mortgages was sold, and $25,000 of the purchase money was paid into the registry of the court, to abide the result of the issue raised by the intervenors. In June, 1887, the intervenors filed their petition of intervention, in which they set up the agreement of Feb