Page:Federal Reporter, 1st Series, Volume 10.djvu/813

 DDNCAN V. GKEENWALT. 801 �souri, like the oodes of many other states, abolishes the distinction between actions in chancery and suits at law, and provides for the mingling the two in the same proceedings. The statute, therefore, provides both for equitable and legal proceedings. And when the statute provides, as in the section just quoted, for a particular ac- tion, the question whether that action is to be regarded in this court as equitable or legal must depend upon the facts stated, and the na- ture of the relief sought. Although authorized by the Code it may be an equitable action. It is insisted that this section provides for a suit by a party in possession. If it bas that meaning it is certainly an anomaly in the way of legislation, for in the very nature of things a suit to reeover possession of real estate cannot be maintained by a party who already has possession. The statute, however, does not provide that a suit for possession may be brought by a party who already has the possession ; it provides that such a suit may be brought against the grantee in a tax deed, or his assignee, whether such grantee or assignee is in possession of the land or not. It may ap- ply to a case where the land is not occupied in fact. But, even if construed to apply to such a case as the present one, I do not think it provides for an exclusive remedy at law. �In the state courts it might be held that a proceeding instituted under this section would aliord the complainant an ample remedy, because either an equitable or legal action might be brought there- under. But when such an action cornes into this court we are bound by the equity practice which prevails here to look into the case, and if it appears to be in its nature a suit in equity, it must go upon our equity calendar, and be proceeded with in accordance with the equity rules. The section, therefore, does not prescribe for all actions a rem- edy at law, nor can I say that it prescribes such a remedy in the present case, since the bill shows upon its face a case in equity. �The other statutory provision relied upon by the respondentis sec- tion 3561 of the Revised Statutes of Missouri, which provides in sub- stance that a party in possession of real estate may bring action against a party out of possession, who claims title, to require him to commence his suit at law to settle the question of his rights. It has been expressly held by the supreme court of Missouri that this sec- tion does not give an exclusive remedy at law so as to oust the juris- diction of a court of equity in a case brought to remove a cloud from the title. Harrington, v. Utterhack, 57 Mo. 619. T.lO.no.S— 51 ��� �