defendants as Trustees, and the Daviess Co. Sav-1 and delivered a deed of trust upon a portion of the same lands, for the benefit of James D. [9] The second was a suit brought in the same court, on February 28, 1881, by David A. Glenn, acting Sheriff of Caldwell Co., Mo.; George T. Crozier, acting Sheriff of Daviess Co., Mo., and the Daviess Co. Savings Association, plaintiffs, against Albert S. Webb, Robert L. Belknap and Wm. H. Kane, Trustees under the will of Henry Remsen, deceased, and Lew E. Darrow as trustee and George W. Frank & Darrow, and David W. McNair, as trustee, to enjoin the defendants from prosecuting their suits to foreclose their respective deeds of trust, and from selling said land under said deeds of trust. On or about March 1, 1881, both cases were removed into the court below, where they were consolidated and heard together. On November 5, 1881, a final decree was entered in favor of the complainants in the first suit, sustaining their bill and dismissing that of the complainants in the second suit. Whereupon, said Martin and associates appealed to this court. The facts are further stated by the court. Messrs. Jeff. Chandler and Eppa Hunton, for appellants. Messrs. R. T. Merrick, M. F. Morris and James S. Bottsford, for appellees. Mr. Justice Harlan delivered the opinion of the court: This is an appeal from a decree in two suits in equity, commenced in one of the courts of the State of Missouri, and thence removed into the Circuit Court of the United States for the Western District of that State, where, by consent, they were consolidated for final hearing. The question presented is, whether the appellant, the Daviess County Savings Association, a banking Corporation of Missouri, doing business at Gallatin, in that State, is, under the circumstances of this case, estopped to deny that the cancellation, in its name and by its cashier, of certain notes secured by trust-deeds upon real estate, and the release of record of the liens given by those deeds, was by its authority and binding upon it. The facts bearing upon this question, as they are disclosed by the pleadings, testimony and stipulations of counsel, are substantially as will be now stated. On the 30th day of June, 1879, one Patrick S. Kenney was largely indebted to that Association. The indebtedness was secured by recorded deeds of trust upon several tracts of land, in some of which, embracing a large part of this indebtedness to the Bank, his wife had not joined. These deeds bore date, respectively, February 8, 1872, November 17, 1873, December 20, 1873, August 28, 1874, September 21, 1874, May 24, 1875, and April 1, 1876. In three of them the trustee was Robert L. Tomlin, who at the date of their execution and during the entire period covered by the transactions to be hereafter recited, was a director and the cashier of the Bank. Kenney and wife had also executed On the 15th day of July, 1875, and first day of November of the same year, respectively, the Exchange Bank of Breckenridge, Missouri, and one Thomas Ryan, obtained judgments for money against Kenney, which, on June 30, 1879, remained, or were believed by those interested in them to remain, liens superior to that given by the foregoing deed of April 1, 1876. It was desired by Tomlin, the cashier, to have Kenney's indebtedness to the Bank in better shape than it was, and to secure further time on his indebtedness to other parties. He also deemed it important that the liens upon these lands (whether created by trust-deeds or judgments), which were prior to those held by the Bank, should be removed, and that Mrs. Kenney's signature be obtained to a trust-deed or deeds in favor of the Bank, covering all the lands of her husband. He, therefore, requested Kenney to obtain a loan of money sufficient to satisfy all liens prior to those held by the Bank. Tomlin did not wish his Bank to make further advancements to Kenney, believing the latter would be more prompt with strangers, than with the Bank, in paying interest as it matured. In order to effect the desired result, application was made by the cashier to Frank & Darrow, of Corning, Iowa, for a loan to Kenney. After some negotiations, that firm made an arrangement with Albert S. Webb, R. L. Belknap, and William H. Kane, of New York, trustees under the will of Henry R. Remsen, for a loan of money to Kenney for five years, at eight per cent interest, to be secured by a trust-deed on his lands, which would give them a lien prior and superior to that held by all others, including the Bank. It was expressly agreed between Frank & Darrow, representing the trustees of Remsen, on one side, and Kenney and Tomlin, the latter representing his Bank, on the other side, that the money thus obtained should be applied, as far as necessary, to the debts secured by the before mentioned Powers deed of trust, and to the two judgments against Kenney; that [10] the balance should be paid to the Bank, which should then cancel and surrender the notes held against Kenney, taking a new note from him, and enter of record satisfaction and release of its liens under the several deeds; that Kenney and wife should execute a deed of trust, giving a first lien to Remsen's trustees to secure the loan by them made; a like deed, giving a lien subordinate to that of Remsen's trustees, to secure Frank & Darrow in the sum of $1,000, the amount stipulated to be paid them for effecting the loan; that Kenney and wife should also make a deed of trust on the same lands to the Daviess County Savings Association, giving a lien subordinate to those given to Remsen's trustees and to Frank & Darrow, for the balance of their claims against Kenney remaining after crediting such portion of the $10,000 received from Remsen's trustees as should be paid to the Bank. No part of the sum received from Remsen's trustees was paid directly to or disbursed by Kenney; but, conformably to the agreement between the parties, $5,200 of it was applied in satisfaction of the debt secured by the Powers deed of trust, $1,689.86 in discharge of the two personal judgments against Kenney, and the balance, $3,110.14, was paid to the Bank. A new note was then executed to the Bank by Kenney, and the $3,110.14 entered on its books as a partial payment thereof. Satisfaction was entered of record in the name of the Bank by its cashier of all the debts held against Kenney, and the old deeds of trust held were also canceled of record in its name by the cashier. Deeds of trust executed by Kenney and wife, of date July 1, 1879, were then placed upon record, all on August 6, 1879, but distinctly giving liens upon the lands in the order already indicated. The new deed to the Bank, in addition, expressly provides that the lien thereby created is subordinate to that given Remsen's trustees. The old notes of Kenney were marked by the cashier on the books of the Bank as paid, and the new note entered as the one Kenney was to pay. The $3,110.14 went into the general funds of the Bank, and was used in its business. The old notes and deeds, being first stamped by [11] the cashier as "paid," were placed by him in an envelope marked with Kenney's address. The cashier had promised when this arrangement was consummated to send them to Kenney, but finding the package containing them to be bulky, they were held for delivery to him when he should call at the Bank. The Daviess County Savings Association was organized in 1865. Of its paid up capital stock at the time of these transactions, all, except a very small amount was owned by McFerran, Hemry and Tuggle; McFerran owning a majority of the whole stock. McFerran was elected president, and from some time in 1870 until January 1, 1872, Tomlin was acting cashier, and from the latter date until January 1, 1881, he was cashier. At the outset, the business seemed to have been managed entirely by the cashier, under the general supervision or direction of McFerran. But desiring to extend the field of his business operations, the latter removed in 1873 to Colorado, and there engaged in banking business. He did not return to Missouri until February, 1881. During his absence and up to 1879, he claimed to be the president of the Association. But during the whole period of McFerran's absence, the exclusive management of the business of the Bank seemed to have been left to the cashier, without interference from any quarter. This state of things continued, even after the election of Hemry as president on the first day of January, 1879. Tuggle, one of the directors, says he never gave much attention to the affairs of the Bank. He resided some distance from Gallatin; came to town about once a month, staying sometimes a week; was in the Bank frequently, but never gave much attention to its affairs; when there he would inquire of the officers how it was running or getting along, but he never examined its books, money or notes; and when in town did not, he says, do anything about running the affairs of the Bank. He testifies that the meetings of the board of directors were simply for the purpose of electing officers and declaring dividends. He knew that the business of the Bank was varied, presenting itself in diffierent * * * * forms; that deeds of trust were taken from time to time; and that in the course of its business it was necessary to cancel such deeds. Upon cross-examination he said: "Tomlin was [12] attending to the business of the Bank from 1873 up to the time this loan was made. When a man applied to the Bank for a loan, or to have a deed of trust changed, or the security changed, my understanding was that Tomlin attended to it. * * I never questioned Tomlin's right to cancel a deed of trust from 1873 to 1879; never knew of any other director questioning his right during that time. * * * Tomlin was acting as cashier from 1865 up to the time of making this loan and, so far as I know, was transacting generally all the business necessary to be transacted here at the Bank." When asked by whom he expected a deed of trust to be canceled, when executed by one who applied to the Bank for a loan and gave other security and wished that deed released, his answer was: "I expected Tomlin attended to it." When asked whom he supposed had such authority from 1873 to the time of the loan in question, his answer was: "I understood he (Tomlin) was doing it. I never thought much of it, and knew nothing about his authority." Again, the same witness: "My understanding is that Tomlin was doing the business of the Bank. Cannot say when it was I first heard of this loan. When I heard it I did not do anything." Hemry, the other director and who was elected president of the Bank for 1879, said that he did not nor did any individual director, to his knowledge, give orders as to the release of securities. "To be very particular," said he, “I don't think of any particular case in which I directed or advised." It thus appears that from 1873 up to 1880, during McFerran's absence in Colorado, there could have been no supervision of the business by him, and that the local directors surrendered all control to the cashier, who was their co-director. If they did not abdicate all authority as directors, they acquiesced in the cashier's assumption of exclusive management of the Bank's business. Tomlin understood and from the conduct of the directors had reason to understand that he was invested with full authority to manage the operations of the Bank according to his best judgment, and without disturbing the directors. This explains the fact, which is quite extraordinary in view of the present position of [13] the Bank, that from 1873 to 1880, inclusive, Tomlin, as cashier, entered in the name of the Bank, upon the proper records of the county, satisfaction of more than one hundred and fifty different deeds of trust executed to secure debts held by the Corporation. In no instance did he receive previous orders to do so from the directors. His authority or duty to do so was never questioned to his knowledge or to the knowledge of anyone having business with the Bank. To all who came into the Bank or had transactions with it his control seemed to be as absolute as if he were the owner of all the stock. His authority to make the arrangement with Kenney, Frank & Darrow, and Remsen's trustees was never questioned by anyone until February, 1880, when McFerran returned from Colorado on a visit to Missouri. Tomlin, during his explanation of the details of that ar rangement, exhibited to him the old notes and trust-deeds, they having remained in his possession in the package in which he originally placed them for Kenney. McFan took possession of them, claiming that tey were the property of the Bank, although after the new deed of trust Kenney had given up the land to the Bank and took back a lease from it. ceedings of the directors. His authority may These principles govern the case before us, and lead necessarily to an affirmance of the decree adjudging the surrender cancellation of the old deeds and the notes given by Kenney, and declaring the liens in favor of Remsen's trustees and Frank & Darrow to be superior to that of the Bank. The Bank, having through Tomlin's management and with the money obtained from Remsen's trustees removed the lien given by the Powers deed of trust, and the lien or the claim of lien upon a part of the lands in virtue of the judgments obtained by the Exchange Bank of Breckinridge and Ryan, now ignores the new deed of trust, and seeks to foreclose the lien given by the original deeds, thereby defeating the prior lien given to Remsen's trustees by the deed of 1879; this, upon the ground that Tom-control its operations. Directors cannot, in juslin, as cashier, without authority and without their knowledge, had assumed to discharge the original debts, to cancel the original trust-deeds, and to take a new note secured by a new deed of trust. It is to be observed that while the Bank repudiates this arrangement, upon the faith of which Remsen's trustees parted with their money, it retains and does not offer to return but has used in its business, $3,110.14 of the sum loaned by those trustees through Frank & Darrow to Kenney. It is willing to accept [14] all the benefits resulting from the acts of its cashier, but endeavors to escape the burdens attached to it by the agreement of the parties. We have stated with some fullness the circum-course of business. stances disclosed by the record, so that the general expressions in this opinion may be interpreted by the facts of this case. To permit the Bank, under these circumstances, to dispute the binding force of the arrangement made by its cashier in reference to Kenney's indebtedness, including the cancellation of the old note and trust-deeds and the acceptance of the new ones, would be a mockery of justice. It is quite true, as contended by counsel for appellants, that a cashier of a bank has no power, by virtue of his office, to bind the corporation except in the discharge of his ordinary duties; and that the ordinary business of a bank does not comprehend a contract made by a cashier, without delegation of power by the board of directors, involving the payment of money not loaned by the bank in the customary way. Bank v. Dunn, 6 Pet., 51; U.S.v. City Bank of Columbus,21 How., 356 [62 U. S., XVI., 1301; Merch. Bk. v. State Bk., 10 Wall., 604 [77 U. S., XIX., 1008]. Or dinarily, he has no power to discharge a debtor without payment, nor surrender the assets or securities of the bank. And, strictly speaking, he may not, in the absence of authority conferred by the directors, cancel its deeds of trust given as security for money loaned; certainly not, unless the debt secured is paid. As the executive officer of the bank, he transacts its business, under the orders and supervision of the board of directors. He is their arm in the management of its financial operations. While these propositions are recognized in the adjudged cases as sound, it is clear that a banking corporation may be represented by its cashier, at least where its charter does not otherwise provide, in transactions outside of his ordinary duties, without his authority to do so being in writing or appearing upon the record of the pro It is so ordered. James H. McKenney, Clerk, Sup. Court, U.S. HENRY W. HOLLAND, Appt., v. LAURA A. CHALLEN. (See S. C. Reporter's ed., 15-26.) Nebraska law-action to quiet title—jurisdiction of Federal Courts-of courts of equity-enlargement of equity rights—test of jurisdiction in equity-tax title. estate, whether in or out of possession, may main1. In Nebraska, any person claiming title to real tain a suit against one who claims an adverse estate or interest in it, for the purpose of determining such estate and quieting the title. struction to the cultivation, use and improvement 2. The right to relief, against an admitted obof lands situated in the States, may be enforced by the Federal Courts, when the controversy to which it may give rise is between citizens of different States. 3. The courts of the United States, when investigating titles and decreeing on them, give effect to however, from what legitimately belongs to the state legislation and state policy; not departing, practice of a court of chancery. 4. Jurisdiction to relieve the holders of real prop erty from vexatious claims to it, casting a cloud upon their title, is inherent in a court of equity; and though conditions to its exercise have been pre scribed by such court, they may be changed or dispensed with by the Legislature. 5. While alterations in the jurisdiction of the state courts cannot affect the equitable jurisdiction of the Circuit Courts of the United States; yet, an enlargement of equitable rights may be administered State. by the Circuit Courts as well as by the courts of the 6. 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. 7. By the law of Nebraska, a deed executed by the Treasurer of the County, at a tax sale, vests in the purchaser a complete legal title to the premises unless some defect affecting the assessment and sale existed, or fraud had been committed in the sale; and he is entitled to call upon a defendant to disclose whatever estate he has in the premises, that its validity may be determined; and if adjudged invalid, that the title of the plaintiff may be quieted. [No. 1068.] doubtful title, he cannot have the relief sought in a bill quia timet. West v. Schnebly, 54 Ill., 523; Huntington v. Allen, 44 Miss., 654; Low v. Staples, 2 Nev., 209. but absolutely void. "A tax deed based upon The title of complainant is not only doubtful, a sale for a portion only of the taxes due upon land being unauthorized, is ineffectual to convey title." State v. Helmer, 10 Neb., 25; Tillotson v. Small, 13 Neb., 202; O'Donohue v. Hendrix, 13 Neb., 257. The bill sets forth the tax deeds held by the complainant, the adverse fee simple title claimed by the defendant, that complainant is entitled to possession and that defendant is trying to obtain, take and keep possession thereof and denying the right of possession of complainant. These allegations are sufficient as the basis of an action at law to recover possession, but there Submitted Dec. 12, 1883. Decided Jan. 7, 1884 is not an allegation in the bill showing any AF PPEAL from the Circuit Court of the United Messrs. C. S. Montgomery and Lewis A. The Nebraska Statute makes the title complete and perfect without the necessity of a possession; but waiving the question of its effect where the former owner is in actual possession of the land, it appears in the case at bar that neither party was in actual possession, the land being unoccupied. In such cases, the constructive possession follows the legal title, which was vested in Holland; and the former owner must take actual possession of the land, or commence his action within three years, to prevent the effect of the statute. If he fails to do so, the grantee in the tax deeds acquires a complete and perfect title. Barrett v. Holmes, 102 U. S., 655 (XXVI., 292); Robb v. Bowen, 9 Pa., 71; Rogers v. Johnson, 67 Pa., 48: Knox v. Cleveland, 13 Wis.,246; Lawrence v. Kenney, 32 Wis., 281; Moingona Coal Co. v. Blair, 51 Iowa, 447; Goslee v. Tearney, 52 Iowa, 455; Monk v. Carbin, 12 N. W. Rep., 571. ground for equitable jurisdiction. It is too well established to admit of argument, that a party out of possession cannot resort to a court of equity to remove a cloud on his title. Mr. Justice Field delivered the opinion of the court: This is a suit in equity to quiet the title of the plaintiff to certain real property in Nebraska as against the claim of the defendant to an adverse estate in the premises. It is founded upon a statute of that State which provides: "That an action may be brought and prosecuted to final decree, judgment or order by any person or persons, whether in actual possession or not, claiming title to real estate, against any person or persons who claim an adverse estate or interest therein, for the purpose of determining such estate or interest and quieting the title to such real estate." The bill alleges that the plaintiff is the owner in fee simple and entitled to the possession of the real property described. It then sets forth the origin of his title, particularly specifying the deeds by which it was obtained, and alleges that the defendant claims an adverse estate or interest in the premises; that the claim so af- [18] fects his title as to render a sale or other dispoIn the case at bar, under the Nebraska Stat-sition of the property impossible, and that it disute, the constructive possession of the complainant was sufficient to authorize the suit. Harral v. Gray, 10 Neb., 188; Joyce v. McAvoy, 31 Cal., 274; Shawler v. Johnson, 52 Iowa, 472; Bogert v. Elizabeth, 27 N. J. Eq., 568; Rhea v. Dick, 34 Ohio St., 422; Maxson v. Huston, 22 Kan., 643; Wing v. Sherrer, 77 Ill.,200; Belcher v. Mhoon, 47 Miss., 613; Scorpion S. M. Co. v. Marsano, 10 Nev., 370. The United States Courts in equity will follow a law of the State, extending equitable remedies as regards titles to real estate. Clark v. Smith, 13 Pet., 203; Wickliffe v. Owings, 17 How., 47 (58 U. S., XV., 44); Stark v. Starr, 6 Wall., 409 (73 U. S., XVIII., 926); Starr v. Stark, 1 Sawy., 270; Parrish v. Ferris, 2 Black, 607 (67 U. S., XVII., 318). Messrs. T. M. Marquett and G. W. Doane, for appellee: The tax title held by the complainant and the only title which he holds is, at best a very doubt ful title, and the principle applied by courts of equity is that where complainant has himself a turbs him in his right of possession. It, therefore, prays that the defendant may be required to show the nature of the adverse estate or interest claimed by her; that the title of the plaintiff may be adjudged valid and quieted as against her and parties claiming under her, and his right of possession be thereby assured; and that the defendant may be decreed to have no estate in the premises and be enjoined from in any manner injuring or hindering the plaintiff in his title and possession. The defendant demurred to the bill, on the ground that the plaintiff had not made or stated such a case as entitled him to the discovery or relief prayed. The court below sustained the demurrer and dismissed the bill. From this decree the case is brought here on appeal. It does not appear from the record in what particulars it was contended in the court below that the bill is defective, that is, in what respect it fails to show a right to the relief prayed. "We infer, however, from the briefs of counsel, that the same positions now urged in support of the [19] decree were then urged against the bill, that is, that the title of the plaintiff to the property has not been by prior proceedings judicially adjudged to be valid, and that he is not in possession of the property; the contention of the defendant being, that when either of these conditions exists, a court of equity will not interpose its authority to remove a cloud upon the title of the plaintiff and determine his right to the possession of the property. A bill quia timet, or to remove a cloud upon the title of real estate, differed from a bill of peace in that it did not seek so much to put an end to vexatious litigation respecting the property, as to prevent future litigation by removing existing causes of controversy as to its title. It was brought in view of anticipated wrongs or mischiefs, and the jurisdiction of the court was invoked because the party feared future injury to his rights or interests. Story, Eq., sec. 826. To maintain a suit of this character it was generally necessary that the plaintiff should be in possession of the property and, except where the defendants were numerous, that his title should have been established at law or be founded on undisputed evidence or long continued possession. Alexander v. Pendleton, 8 Cranch, 462; Piersoll v. Elliott, 6 Pet., 95; Orton v. Smith, 18 How., 263 [59 U. S., XV.,393]. him of the premises in controversy or of some estate therein, on some designated day, the subsequent entry of the defendant, and his withholding of the premises from the plaintiff; and although the plaintiff may in such cases recover, when a present right of possession is established, though the ownership be in another, yet such right may involve and generally does involve a consideration of the actual ownership of the property; and in such cases the judgment The Statute of Nebraska enlarges the class of is as much a bar to future litigation between the cases in which relief was formerly afforded by parties with respect to the title as a judgment a court of equity in quieting the title to real in other actions is a bar to future litigation upon property. It authorizes the institution of legal the subjects determined. Where this new form proceedings, not merely in cases where a bill of action is adopted and this rule as to the efof peace would lie, that is, to establish the title fect of a judgment therein obtains, there can be of the plaintiff against numerous parties insist- no necessity of repeated adjudications at law ing upon the same right, or to obtain repose upon the right of the plaintiff as a preliminary against repeated litigation of an unsuccessful to his invoking the jurisdiction of a court of claim by the same party, but also to prevent fut-equity to quiet his possession against an asserted ure litigation respecting the property, by re- claim to the property. moving existing causes of controversy as to its title; and so embraces cases where a bill quia timet to remove a cloud upon the title would lie. A bill of peace against an individual reiterating an unsuccessful claim to real property would formerly lie only where the plaintiff was in possession and his right had been successfully maintained. The equity of the plaintiff in such cases arose from the protracted litigation for the possession of the property which the action of ejectment at common law permitted. That action being founded upon a fictitious demise, between fictitious parties, a recovery in one action constituted no bar to another similar action or to any number of such actions. A change in the date of the alleged demise was sufficient to support a new action. Thus the party in possession, though successful in every instance, might be harassed and vexed, if not ruined, by a litigation constantly renewed. To put an end The Statute of Nebraska authorizes a suit ín to such litigation and give repose to the success- either of these classes of cases without reference ful party, courts of equity interfered and closed to any previous judicial determination of the the controversy. To entitle the plaintiff to re- validity of the plaintiff's right, and without reflief in such cases, the concurrence of three par-erence to his possession. Any person claiming ticulars was essential: he must have been in possession of the property, he must have been disturbed in its possession by repeated actions at law, and he must have established his right by successive judgments in his favor. Upon these facts appearing, the court would interpose and grant a perpetual injunction to quiet the possession of the plaintiff against any further litigation from the same source. It was only in this way that adequate relief could be afforded against vexatious litigation and the irreparable mischief which it entailed. Adams, Eq., 202; Pomeroy, Eq. Jur., sec. 248; Stark v. Starr, 6 Wall., 409 [73 U. S., XVIII., 926]; Curtis v. Sutter, 15 Cal., 257; Shepley v. Rangely, Daveis, 242; Devonsher v. Newenham, 2 Sch. & Lef.,208. In most of the States in this country, and Nebraska among them, the action of ejectment to recover the possession of real property as exist ing at common law has been abolished with all its fictions. Actions for the possession of such property are now not essentially different in form from actions for other property. It is no longer necessary to allege what is not true in fact and not essential to be proved. The names of the real contestants must appear as parties to the action, and it is generally sufficient for the [20] plaintiff to allege the possession or seisin by title to real estate, whether in or out of posses- |