UNION PAC. RY. CO. fl. MEIER.
9
the decree directs a sale of land not described in the bill, and it is contended that the court may ignore everything from the time of the decree pro confesso, enter a new decree as though nothing had been done,-one correctly describing the land,-and have a sale and con· firmation under this new decree. Of course, that would be a cheap and easy way of disposing of the case, but I do not think that it is in harmony with the equity rules. Under the old equity practice, wheli a case terminated the decree was enrolled. Tbereafter, and after the close of the term, it could not be disturbed, except by bill of review. We have no enrollment, technically so called, in this country, and yet the same principle controls. All decrees are deemed to be en-. rolled as of the term in which they are made. Whiting v. Bank, Pet. 6; Dexter v. Amold, 5 Mason, 303. Although the decree not be responsive to the language of the bill, yet the record is Com·; pleted, and the court cannot,disturb it thereafter. A mere mistake in figures is sometimes corrected on motion, but where a foreclosure case has passed into a decree, the sale made and con;! firmed, it is to be looked upon as something complete, and if tqere is any mistake in it, it should be corrected by a bill in review; and whila that may involve a little trouble and expense, it is the only safe wat to do. .. . .,
UNION PAC.
By. Co.
'/J. MEIER
and others.
(Oircuit Oourt, .D. Kansas. June 9,1886.)
1.
EQUITy-BILL TO QUffiT TITLE-SUFFICIENCY.
Where, in a bill to quiet title. defendants demur specially on the ground of their actual occnpancyof the land in controversy, and the further ground that complainant's equity is barred by lapse of time, and the bill itself fails to show dearly who is in actual posseSSIOn, or when complainant acquired title. the demurrer will be overruled. A pleading must be clear and positive in its allegation of material facts, or a demurrer thereto assuming the allegation of those facts will be ov&rgled.
2.
SAME-DEMURRER, WREN PROPER.
In Equity. Bill to quiet title, and special demurrer thereto on the ground that defendants acttlally occupy the land in controversy; and the gronnd that complainant's equity is barred by lapse of time· · P. Usher, for complainant. J. Lucirn Balcer, for defendants.
J. In this case there is a demurrer to the bill, which is 110 bill to quiet title. The Union Pacific Railway Company claims to own It right of way, to the extent of 400 feet in width, and has filed this bill against a nnmber of parties, alleging that in 1867 a certain company laid out the town of Linwood, made It plat, filed it, and that
10
FEDERAL REPORTER.
such plat included a part of this right of way. That plat was made and filed in 1867, 17 years before this bill was filed. It charges that two defendants, the president and secretary of that company, executed and filed this plat, and that the other defendants, on whose behalf alone this demurrer is filed, claim title by deeds from that town company of lots situated upon this right of way. When these deeds were made it is not alleged, but generally that these defendants claim title to the property by virtue of sundry conveyances made after the filing of the plat. 'rwo points are made: First, it is said that these defendants are in and that a bill to quiet title will not lie against them. Well, if tho bill showed that the defendants were in possession, I should think this ground of the demurrer was well taken. The plaintiff has a legal title. I do not understand that a party having a legal title, and out of possession, can maintain a bill to quiet title against one in possession. Under the old equity rule, possession by the plaintiff was a necessary condition of such an action. Our statute enlarges this, and authorizes one out of possession to maintain the same kind of an action against one also out of possession. In Holland v. Challen, 110 U. S.. 15, S. C. 3 Sup. Ct. Rep. 495, the supreme court of the United States sustained the validity of a similar statute of Nebraska, and held it applicable to proceedings in .the federal courts. But in that opinion the court very clearly in· timated-of course it was not necessary to decide the question-that no state statute, or other statute, could transfer a purely legal cause of action to a court of equity. If the plaintiff has a legal title to the land, and the defendant is in possession, an action of ejectment is the legal remedy; and in it the constitution of the United States guaranties the right of trial by jury, and the plaintiff cannot avoid that constitutional provision by filing a bill to quiet title. But I do not read the allegations of the bill as showing possession to the defendants in terms, and while there are some expressions that point in that direction, yet the matter is left open. If I could take the statements of counsel on argument, the probabilities are that the defenaants are in possession, or some of thern. at least. But I must act on the bill as it reads, and upon its allegations I think that ground of demurrer cannot be sustained. And the other is equally defective. That raises the question of the statute of -limitations. It does not appear what the deeds are, under which the defendants claim, <lr when they were executed or recorded. It makes no difference what was done 20 years ago by other parties. That may be the foundation of an action against such parties, but it is not shown that the deeds under which these defendants assert title were executed, or that the claims which they make accrued to them at any time beyond the statute of limitations; so that in that respect the demurrer will be overruled, and leave to answer by the August rule
STANG V. REDDEN.
11
STANG
v.
REDDEN.
(Oircuit Oourt, D. Kansas. June 8,1886.)
MORTGAGE-FoRECLOSURE-SALE-CONFIRMATION-TITI,E OF PURCHASER·
. The judicial confirmation of It foreclosure sale vests in the purchaser the full equitable right to the mortgaged premises, whether any deed is executed and delivered to him or not. The colorable legal title which, until the recording of a foreclosure deed, the mortgagor retains. is held by him, and those claiming under him, merely in trust for the purchaser, and those claiming under him. The foreclosure record is constructive notice, to all claiming under the mortgagor, of the outstanding equities vested in the Vurchasel' at such foreclosure sale.
SAME-RIGHT OF PURCHASER BEFORE RECORDING DEED.
8.
SAME-NoTICE.
In Equity. Petition for rehearing of bill and cross-bill to quiet title; complainant claiming, by mesne conveyances, from the purchaser at a judicial sale on foreclosure; defendant claiming, by mesne conveyances, under a subsequent pnrchase from the mortgagor. Lawrence, Welch et Lawrence, for Mr. Stang. A. L. Redden and W. W. Harris, for Mr. Redden. BREWER, J. A petition for rehearing was presented at the last term. The facts in this case are these: Away back in 1859 or 1860 a man named Russum owned a tract of land in Shawnee county, gave a mortgage, and that mortgage was foreclosed, the property sold, and the sale confirmed, but no deed ever made. By various conveyances from the purchaser at that sheriff's sale title passed to Stang. The land was uninclosed and unoccupied. In 1883 Russum, the originalowner, (the mortgagor,) quitclaimed to one McClure. He brought suit in the district court of Shawnee county against Stang to quiet his title; obtained service by publication, Stang being a non-resident. Upon such service, no appearance having been made, default was taken, and a decree entered quieting his title. After that decree had been entered McClure deeded to Redden. Within a year Stang entered his appearance in that court, obtained an order setting aside ihe decree, and leave to file answer. He filed an answer, and then removed the cause to this court. Redden, who purchased after the entry of the decree, and before the order setting it aside, was made a party defendant, and It cross-bill was filed by Stang against Redden, charging that he held only the naked legal title in trust. Upon those facts It decree was entered in this court last term in favor of Stang, adjudging that his was the full equitable title, and that Redden simply held a legal title in trust for him. Now, after carefully considering the full arguments presented on this rehearing, I see no reason to change the decree. The supreme
