islature, having its origin in the peculiar condition of the county." "The state legislatures," the court added, "certainly have no authority to prescribe the forms and modes of proceeding in the courts of the United States, but having created a right, and at the same time prescribed the remedy to enforce it, if the remedy prescribed is substantially consistent with the ordinary modes of proceeding on the chancery side of the federal courts, no reason exists why it should not be pursued in the same form as in the state court; on the contrary, propriety and convenience suggest that the practice should not materially differ where titles to lands are the subjects of investigation. And such is the constant course of the federal courts." The opinion concludes with the observation "that when investigating and decreeing on titles in this country we must deal with them in practice as we find them, and accommodate our modes of proceeding, in a considerable degree, to the nature of the case and the character of the equities involved in the controversy, so as to give effect to state legislation and state policy; not departing, however, from what legitimately belongs to the practice of a court of chancery.'

That case differs from the one at bar in that the complainant was in possession of the premises at the commencement of the suit, and the law of Kentucky gave the right to the relief claimed only to persons having both the legal title and the possession. But the law did not require that such possession should have been disturbed by legal proceedings, and that the title of the plaintiff should be sustained in them by judgments in his favor, before the court could entertain jurisdiction of the case and grant the relief prayed; and therefore no such disturbance of his possession and adjudication sustaining his title were held to be essential to the maintenance of the suit. If the jurisdiction to grant the relief prayed remained unaffected when the legislature had thus dispensed with previous legal proceedings affecting the possession of the plaintiff, it would seem to follow that the jurisdiction would remain unimpaired if possession itself, as a condition of the institution of the suit, was also dispensed with. The truth is, that the jurisdiction to relieve the holders of real property from vexatious claims to it, casting a cloud upon their title, and thus disturbing them in its peaceable use and enjoyment, is inherent in a court of equity; and though conditions to its exercise have at different times been prescribed by that court, both in England and in this country, they may at any time be changed or dispensed with by the legislature without impairing the general authority of the court. Pom. Eq. Jur. § 1398. The equitable rights of parties in Nebraska claiming the legal title to real property are simply enlarged by its statute, not changed in character. And the language used by this court, speaking by Mr. Justice BRADLEY, in the Broderick Will Case, is appropriate here: "While it is true that alterations in the jurisdiction of the state courts cannot affect the equitable jurisdiction of the circuit courts of the United States, so

long as the equitable rights themselves remain; yet an enlargement of equitable rights may be administered by the circuit courts as well. as by the courts of the state." And it may be affirmed of this case, what was said as probably true of that one, that it is "a case in which an enlargement of equitable rights is effected, although presented in the form of a remedial proceeding." "Indeed, "Indeed," as the court there observed, "much of equitable jurisdiction consists of better and more effective remedies for attaining the rights of parties." 21 Wall. 520. No adequate relief to the owners of real property against the adverse claims of parties not in possession can be given by a court of law. If the holders of such claims do not seek to enforces them, the party in possession, or entitled to the possession,-the actual owner of the fee,-is helpless in the matter, unless he can resort to a court of equity.

It does not follow that by allowing in the federal courts a suit for relief under the statute of Nebraska, controversies properly cognizable in a court of law will be drawn into a court of equity. There can be no controversy at law respecting the title or right of possession to real property when neither of the parties is in possession. An action at law, whether in the ancient form of ejectment or in the form now commonly used, will lie only against a party in possession. Should suit be brought in the federal court, under the Nebraska statute, against a party in possession, there would be force in the objection that a legal controversy was withdrawn from a court of law; but that is not this case, nor is it of such cases we are speaking. Undoubtedly, as a foundation for the relief sought, the plaintiff must show that he has a legal title to the premises, and generally that title will be exhibited by conveyances or instruments of record, the construction and effect of which will properly rest with the court. Such, also, will generally be the case with the adverse estates or interests claimed by others. This was the character of the proofs establishing the title of the complainant in Clark v. Smith, supra. But should proofs of a different character be produced, the controversy would still be one upon which a court of law could not act. It is not an objection to the jurisdiction of equity that legal questions are presented for consideration which might also arise in a court of law. If the controversy be one in which a court of equity only can afford the relief prayed for, its jurisdiction is unaffected by the character of the questions involved.

In the present case the plaintiff claims under a purchaser at a tax sale by the state, to whom deeds, by the treasurer of the county in which the property is situated, were executed. By the law of Nebraska the fee of real property, and not merely a term of years, may be sold for unpaid taxes. A certain time is allowed to the owner to redeem the property from such a sale, but if redemption is not made within the period designated, a deed is executed by the treasurer of the county to the purchaser, and such deed vests in him the right,

title, and estate of the former owner of the land and also of the state and county, and is evidence in all courts that the property conveyed was subject to the taxes for the years stated; that they were not paid, and that redemption was not made before the sale; that the property had been properly listed and assessed and the taxes properly levied; that the property was advertised for sale in the manner and for the length of time required, and was sold as stated in the deed; and that the grantee named was the purchaser or assignee of the purchaser of the property; and, indeed, that all the prerequisites of the law had been complied with by the officers whose duty it was to have taken any part in the transaction relating to or affecting the title conveyed. No person is permitted to question the title thus acquired without showing that he had title to the property at the time of the sale or has since obtained the title from the United States, and that the property was not subject to taxation for the years named, or that the taxes had been paid before the sale, or that the property had never been assessed for taxation, or had been redeemed from the sale, or that there had been fraud committed by the officer in making the sale, or by the purchaser to defeat it. The plaintiff, therefore, had a complete legal title to the premises in controversy, unless some one of the defects mentioned, affecting the validity of the assessment and sale of the property, existed at the time, or fraud had been committed by the officer or purchaser in the sale. Having an apparent legal title by the deeds, it was, of course, important to him and, indeed, necessary for the peaceable possession of the property and its improvement to have any adverse claims, notwithstanding such deeds, considered and settled. We think, therefore, that he was entitled, upon the statement made in his amended bill, the only one before us, to call upon the defendant to produce and disclose whatever estate she had in the premises in question, to the end that its validity may be determined, and if adjudged invalid, that the title of the plaintiff may be quieted.

It follows that the decree of the court below must be reversed and the cause remanded, with leave to the defendant to answer the bill; and it is so ordered.

(109 U. S. 735)

COUNTY OF SHERMAN, in the State of Nebraska, v. SIMONDS.

(January 7, 1884.)



A purchaser of municipal bonds is not required to go behind the recitals upon their face for the purpose of ascertaining whether there has been in fact an overissue. If they are valid upon their face, the corporation is bound to make them good to an innocent purchaser.

The clause of the constitution of Nebraska forbidding the legislature to pass any special act conferring corporate powers is not infringed by a statute empowering a county to issue bonds for the payment of a valid debt previously con


A county is not a corporation within the meaning of section 15 of article 3 of the

constitution of Nebraska, prohibiting the legislature from passing any special

law granting to any corporation, association, or individual, any exclusive privileges, immunities, or franchises."

The case of Jefferson Co. v. People, 5 Neb. 127, approved and followed.

In Error to the Circuit Court of the United States for the District of Nebraska.

This was a suit brought on the coupons of certain bonds issued by the commissioners of Sherman county, in the state of Nebraska, dated January 1, 1876, under an act of the legislature of that state, approved February 18, 1875, entitled "An act to authorize the commissioners of the counties of Colfax, Platte, Boone, Antelope, Howard, Greeley, and Sherman to issue bonds for the purpose of funding the warrants and orders of said counties." The act referred to authorizes the commissioners of each of the counties named to issue bonds* of the county, and to sell and negotiate the same for money, and declares that the proceeds arising therefrom should be used for the redemption of all warrants and other evidences of indebtedness drawn on the treasurer of the county, which were outstanding at the date of the approval of the act, or might be outstanding prior to the first day of January, 1875. The act contained the following provisos:

"Provided, that no more of the bonds authorized to be issued by virtue of this act shall be issued than is necessary to pay off and redeem such warrants so outstanding; and provided, further, that the said commissioners shall not issue of said bonds to exceed in value the amount of said indebtedness up to January 1, 1875, nor shall said bonds be negotiated at a less price than eightyfive cents on the dollar."

The bonds recited on their face that they were issued by authority of said act. The answer averred that bonds were issued under said act by the commissioners of said county of Sherman to the amount of $45,000, and that on January 1, 1875, the debts of said county did not exceed the sum of $16,000, and that the said bonds were negotiated for less than 85 cents on the dollar. On this answer the plaintiff below took issue. The parties waived a trial by jury, and submitted the cause to the court, which made findings, from which the following facts appear: On January 1, 1876, the commissioners of Sherman county, in pursuance of the act of February 18, 1875, issued, among others, the bonds and coupons described in the petition, and the same came into the possession of the plaintiff, who was a bona fide purchaser for value, without notice of defects other than appear on the face of the bonds, and was still the holder and owner of said bonds and coupons. The record of the commissioners of Sherman county. showed the allowance of $15,000 in claims against the county from the organization of the county to January 1, 1875, for which warrants

were drawn on the treasury, and no more, but they also showed that the commissioners at one of their meetings estimated the amount of the county indebtedness which might be funded at the sum of $36,874.95, for which it would be necessary to issue bonds to the amount of $43,400, and that bonds were issued pursuant to such estimate, but it was not shown what the actual indebtedness of the county was at the time the bonds were issued. Upon this finding the circuit court rendered judgment in favor of the plaintiff below for $5,671.60. To reverse that judgment this writ of error is prosecuted.

C. S. Montgomery, for plaintiff in error.

Nathan S. Harwood and John H. Ames, for defendant in error.

WOODS, J. The plaintiff in error insists that the facts found by the court show an issue of bonds by the county in excess of the amount authorized by the statute, and that they are therefore void. The defendant in error is found by the circuit court to be a bona fide holder for value. According to repeated decisions of this court, being such, he was not bound to go behind the law and the recital of the bonds to inquire into the amount of the county indebtedness. Marcy v. Township of Oswego, 92 U. S. 637; Humboldt Tp. v. Long, Id. 642; Wilson v. Salamanca, 99 U. S. 499. But if it be conceded that a purchaser of the bonds was required to inspect the records of the county to ascertain the amount of its indebtedness, and whether there had been an over-issue of bonds, it appears from the findings of fact that the records of the commissioners contained an estimate of the indebtedness of the county made by them for the express purpose of fixing the amount of bonds to be issued, and in pursuance of which they were issued, which showed that there was no over-issue. This was a decision by the very officers whose duty it was under the law to fix the amount of bonds which could be lawfully issued. A purchaser of bonds was not required to make further inquiry, and if the finding of the commissioners was untrue, he could not be affected by its falsity. See cases above cited; also, Lynde v. The County, 16 Wall. 6; Com'rs v. January, 94 U. S. 202; County of Warren v. Marcy, 97 U. S. 96; Com'rs v. Bolles, 94 U. S. 104; Pana v. Bowler, 107 U. S. 529; [S. C. 2 SUP. CT. REP. 704.]

The next contention of the plaintiffs in error is that the act by which the issue of the bonds in suit was authorized was forbidden by section 1, art. 8, of the constitution of Nebraska, which was in force at the date of the passage of the act. That section declares "the legislature shall pass no special act conferring corporate powers."

In the case of Com'rs Jefferson Co. v. People, 5 Neb. 127, decided at the July term, 1876, the supreme court of Nebraska has conclusively settled this point against the plaintiff in error. In that case an act of the legislature, in all material respects similar to the act in question in this case, except that it related to but one county, was brought under consideration. The answer averred that the act was unconstitutional and void. Upon this point the court said:

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