Page:Federal Reporter, 1st Series, Volume 8.djvu/420

 406 FEDERAL REPORTER. �exception contended for, but gcnerally disallowed by the chancelier, waa where the plaintifl was in possession and the defendant failed to bring any action; the plaintiff having, therefore, no opportunity to establish his right at law. As I understand the decision of tiiis court in Douglas v.McCoy, h Ohio, 522, it was to supply this precise omission tha!t our several statutory pro- visions on the subject were enacted. These provisions are found in the acts of 1810, 1824, aud 1831, (Chase's St. 687, 1278, and 1697,) substantially as in the 557th section of the Code, ., with the difference that by the latter pos- session alone, instead of legal title and possession, is declared to be a sufficient basis for the action. The only effect of this provision in the Code is to sub- stitute the plaintiff's possession for the establishment of his right by trials at law. In all other essentials the remedy by bill of peace remains the saine as under the old practice." �In the most recent case in the Ohio Eeports on the question {Rhea v. Dick, 34 Ohio St. 420) it was decided that under an amendaient which affected the original section, a person in possession might compel a litigation as to his title with an adversary claiming only an estate in remainder or reversion, or contingent upon a future event, and not adverse to the plaintiff's right to present possession. And the court quotes with approval from the opinion of the supreme court of Cal- ifornia in the case of Joyce v, McAvoy, 31 Cal. 274, in construing a similar statute of that state, as follows : �<»The statute giving this right of action to the party in possession does not confine the remedy to the case of an adverse claimant setting up a legal title, or eveu an equitable title; but the aqt intended to embrace every description of claim whereby the plaintili might be deprived of the pi'operty, or its title clouded, or its value depreciated, or whereby the plaintifl might be incom- moded or damnifled by the assertion of an outstanding title already held or to grow out of adverse pretension. The plaintifl bas the right to be quieted in his title whenever any claira is made to real estate of wliieh be is in posses- sion, the eflect of which claim might be litigation, or a loss to him of the property." �In the same case from which this citation is taken (Rhea v. Dick) the supreme court of Ohio add as follows : �" Cases may arise under our statute in which the parties may have a consti- tutional right to have the issues of fact tried by a jury. Should such case» arise, the court is competent to authorize such trial, either in the case, or by requiring a separate action to be brought for the purpose before the rendition of the final decree." �The case of Stdrk v. Starrs, 6 Wall. 402, was a suit in equity, be- gun in the state courts of Oregon, upon a similar statute, providing that "any person in possession of real property may maintain a suit in equity against another who claims an estate or interest therein adverse to him, for the purpose of determining such claim, estate, or ��� �