Opinion of the Full Court, by
McCully, J.
The question in its simplest statement is whether the application of the claimants in the Probate Court, upon the final settlement of the Administrator’s accounts, to prove a relationship with the deceased intestate, is barred by the proceedings had under the Statute of 1874, to quiet titles in lands claimed by right of inheritance.
There is no language in that Statute which in terms takes away from the Probate Courts any power belonging to or hitherto exercised by them, but it is contended, with good reason, that if the Court in its probate capacity shall admit new parties to make claims, the judgment under the prior proceedings will be affected, and perhaps superseded.
By the judgment which they have obtained, each of four parties is entitled to take one fourth part of the estate.
If one or more parties shall establish in the Probate Court a like relationship and the estate shall be divided into fifths, sixths, or smaller fractions, then the former judgment is pro tanto set aside. If a new party shall be admitted and prove that he is a nephew, being nearer than the degree of the above four parties, he will take the whole estate. The former proceedings would have been nugatory and futile. That Statute provides that when proceedings have been regularly had therein, the final decree shall be recorded in the Registry of Conveyances, and may be pleaded in bar of any subsequent action [634]*634brought by parties or privies of the original proceedings. It also provides that all who are known to be claimants shall be made parties by notice, and that advertisement shall be made to those who may not be known as claimants to come in to the adjudication.
Those who argue that the former judgment is a bar contend that in view of the public notice, and in view of the fact that the new claimants do not deny notice and knowledge of the former proceeding, they are barred as “ parties or privies ” from bringing subsequent actions. It is difficult to see how the decree could operate to bar subsequent actions, and so to quiet title upon any other construction, and we therefore take that to be the intention and meaning of the law.
In coming to this conclusion we have been compelled to consider carefully the full scope of the Statute in question, and have had our attention drawn to the following points. First, it is entitled an Act for proceedings to quiet title, but it is limited in the caption to lands “claimed by right of inheritance.” It is not therefore a Statute prescribing practice and proceedings in w'hat are known as bills of peace, or bills quia timet, for they ma3r be brought to settle other claims than those by inheritance, as for instance, to cure defects in a deed, and in respect to other property than land. This is one of the many departments of Equity jurisdiction. We know of no instance in this country where such a bill has been brought, but there is no doubt that the general Equity jurisdiction given to the Justices of the Supreme Court would be sufficient for it to be entertained, and that the proceedings would be regulated by the rules of Equity practice. Second, the Act contemplates the recovery of land by a party not in actual possession, as against one “ holding by deed or otherwise with claim of ownership in fee,” and whether the ancestor of the petitioner died testate or intestate, and leaving children and statutory heirs, and Section 7 empowers the Justice of the Court having jurisdiction to issue writs of possession when necessary. Third, the petition is to be heard b3r the Justice of the Supreme Court to whom it was addressed, or by the Justices of the Circuit Court, with appeal [635]*635to the Justices of the Supreme Court. The proceedings are to be had according to the usual course of proceedings in Equity, in the method of taking testimony, that is, by oral or written examinations. They arc from first to last to be by Judges sitting without a jury. Fourthly, the decree of the Court bars any subsequent action brought by parties or privies of the original proceedings.
Now in view of the provisions above quoted, we are unable to see why this Statute is not applicable to perhaps all cases which have been the subject of actions of ejectment. It may be used against one holding by “ deed or otherwise,” that is, by any description of title. It may be used if the ancestor died testate, when the estate is not governed by the Statute of Descent, being devised, and it may be used to claim against the children of one dying intestate.
In the lapse of time all estates may come to be held by right of inheritance or by devise, for some link in the chain of title, so that by this Statute any person, claiming an inheriting relationship to any ancestor who possessed real estate, may bring this Statute to bear on the parties who may now be in possession thereof by devise, by deed or otherwise.
There is no limitation of time in the Statute. The party in possession may have held it for any number of years less than twenty, either by his own occupation after the death of the alleged ancestor, or by deed from an heir. There is nothing in the terms of the law confining it to a case like that before the Court where the estate is in abeyance, all parties who pretend to be related being in such remote degree that they must wait until there shall be some judicial inquest and determination which shall warrant a demand for possession. But if in any case a Statute substitutes a procedure without the possibility of resort toa jury in matters where a trial by jury has hitherto been used, it comes in conflict with the provision of the Constitution found in the latter part of Article 7. “ In all cases in which the right of trial by jury has heretofore been used it shall be held inviolable forever except in actions of debt or assumpsit [636]*636in which the amount claimed is less than fifty dollars.” In re Paloma, 4 Hawn., 131.
Heretofore in this Kingdom if B. was in possession of real estate and A. claimed that it belonged to himself by right of inheritance, by devise, by deed or otherwise, he has been obliged ■to proceed against him in the mode prescribed by Section 1118 of the Civil Code, that is, bring an action of ejectment wherein all the issues of fact are tried by a jury, and the Court makes no judgment and issues no writ of possession not founded on the verdict of the jury. But if this Statute is valid, A. may employ it to eject B. and to bar all other persons afterwards, and B.’s right to a jury as heretofore enjoyed is violated.
The case above supposed is not a remote one. ' It comes within the terms of this Act as easily as any case when the party bringing the proceeding is in possession and desires to extinguish hostile claims. We have scrutinized the Act to see if we could separate a part which might have an unconstitutional operation, from the remainder, and if by legal construction the latter could be left operative, but we find that the provision for an action of ejectment is blended throughout with that for quieting the title of a petitioner in possession.
This fact constitutes a vital difference between this Statute and the proceeding which we have spoken of, by bill to quiet title, or bill of peace, and from statutes of other countries having a similar title. We cite from Pomeroy’s Remedies and Remedial Rights, Section 369. Action to Quiet Title
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Opinion of the Full Court, by
McCully, J.
The question in its simplest statement is whether the application of the claimants in the Probate Court, upon the final settlement of the Administrator’s accounts, to prove a relationship with the deceased intestate, is barred by the proceedings had under the Statute of 1874, to quiet titles in lands claimed by right of inheritance.
There is no language in that Statute which in terms takes away from the Probate Courts any power belonging to or hitherto exercised by them, but it is contended, with good reason, that if the Court in its probate capacity shall admit new parties to make claims, the judgment under the prior proceedings will be affected, and perhaps superseded.
By the judgment which they have obtained, each of four parties is entitled to take one fourth part of the estate.
If one or more parties shall establish in the Probate Court a like relationship and the estate shall be divided into fifths, sixths, or smaller fractions, then the former judgment is pro tanto set aside. If a new party shall be admitted and prove that he is a nephew, being nearer than the degree of the above four parties, he will take the whole estate. The former proceedings would have been nugatory and futile. That Statute provides that when proceedings have been regularly had therein, the final decree shall be recorded in the Registry of Conveyances, and may be pleaded in bar of any subsequent action [634]*634brought by parties or privies of the original proceedings. It also provides that all who are known to be claimants shall be made parties by notice, and that advertisement shall be made to those who may not be known as claimants to come in to the adjudication.
Those who argue that the former judgment is a bar contend that in view of the public notice, and in view of the fact that the new claimants do not deny notice and knowledge of the former proceeding, they are barred as “ parties or privies ” from bringing subsequent actions. It is difficult to see how the decree could operate to bar subsequent actions, and so to quiet title upon any other construction, and we therefore take that to be the intention and meaning of the law.
In coming to this conclusion we have been compelled to consider carefully the full scope of the Statute in question, and have had our attention drawn to the following points. First, it is entitled an Act for proceedings to quiet title, but it is limited in the caption to lands “claimed by right of inheritance.” It is not therefore a Statute prescribing practice and proceedings in w'hat are known as bills of peace, or bills quia timet, for they ma3r be brought to settle other claims than those by inheritance, as for instance, to cure defects in a deed, and in respect to other property than land. This is one of the many departments of Equity jurisdiction. We know of no instance in this country where such a bill has been brought, but there is no doubt that the general Equity jurisdiction given to the Justices of the Supreme Court would be sufficient for it to be entertained, and that the proceedings would be regulated by the rules of Equity practice. Second, the Act contemplates the recovery of land by a party not in actual possession, as against one “ holding by deed or otherwise with claim of ownership in fee,” and whether the ancestor of the petitioner died testate or intestate, and leaving children and statutory heirs, and Section 7 empowers the Justice of the Court having jurisdiction to issue writs of possession when necessary. Third, the petition is to be heard b3r the Justice of the Supreme Court to whom it was addressed, or by the Justices of the Circuit Court, with appeal [635]*635to the Justices of the Supreme Court. The proceedings are to be had according to the usual course of proceedings in Equity, in the method of taking testimony, that is, by oral or written examinations. They arc from first to last to be by Judges sitting without a jury. Fourthly, the decree of the Court bars any subsequent action brought by parties or privies of the original proceedings.
Now in view of the provisions above quoted, we are unable to see why this Statute is not applicable to perhaps all cases which have been the subject of actions of ejectment. It may be used against one holding by “ deed or otherwise,” that is, by any description of title. It may be used if the ancestor died testate, when the estate is not governed by the Statute of Descent, being devised, and it may be used to claim against the children of one dying intestate.
In the lapse of time all estates may come to be held by right of inheritance or by devise, for some link in the chain of title, so that by this Statute any person, claiming an inheriting relationship to any ancestor who possessed real estate, may bring this Statute to bear on the parties who may now be in possession thereof by devise, by deed or otherwise.
There is no limitation of time in the Statute. The party in possession may have held it for any number of years less than twenty, either by his own occupation after the death of the alleged ancestor, or by deed from an heir. There is nothing in the terms of the law confining it to a case like that before the Court where the estate is in abeyance, all parties who pretend to be related being in such remote degree that they must wait until there shall be some judicial inquest and determination which shall warrant a demand for possession. But if in any case a Statute substitutes a procedure without the possibility of resort toa jury in matters where a trial by jury has hitherto been used, it comes in conflict with the provision of the Constitution found in the latter part of Article 7. “ In all cases in which the right of trial by jury has heretofore been used it shall be held inviolable forever except in actions of debt or assumpsit [636]*636in which the amount claimed is less than fifty dollars.” In re Paloma, 4 Hawn., 131.
Heretofore in this Kingdom if B. was in possession of real estate and A. claimed that it belonged to himself by right of inheritance, by devise, by deed or otherwise, he has been obliged ■to proceed against him in the mode prescribed by Section 1118 of the Civil Code, that is, bring an action of ejectment wherein all the issues of fact are tried by a jury, and the Court makes no judgment and issues no writ of possession not founded on the verdict of the jury. But if this Statute is valid, A. may employ it to eject B. and to bar all other persons afterwards, and B.’s right to a jury as heretofore enjoyed is violated.
The case above supposed is not a remote one. ' It comes within the terms of this Act as easily as any case when the party bringing the proceeding is in possession and desires to extinguish hostile claims. We have scrutinized the Act to see if we could separate a part which might have an unconstitutional operation, from the remainder, and if by legal construction the latter could be left operative, but we find that the provision for an action of ejectment is blended throughout with that for quieting the title of a petitioner in possession.
This fact constitutes a vital difference between this Statute and the proceeding which we have spoken of, by bill to quiet title, or bill of peace, and from statutes of other countries having a similar title. We cite from Pomeroy’s Remedies and Remedial Rights, Section 369. Action to Quiet Title : “The very object of the proceeding assumes that there are other claimants adverse to the plaintiff setting up titles and interests in the land or other subject matter hostile to this. Originally and independent of Statute this particular jurisdiction of equity was only invoked when either many persons asserted titles adverse to that of the plaintiff, or where one person repeatedly asserted his single title by a succession of legal actions, all of which had failed, and in either case the object of the suit was to settle the whole controversy in one proceeding. The action has, however, been greatly extended by Statute, especially in the Western States, and is there an ordinary means of trying a disputed title [637]*637between two opposite claimants. The general scope of these statutes is as follows: The plaintiff must be in possession, claiming an estate in the lands. The adverse claimant or claimants must be out of possession, and must assert a hostile title or interest. In this condition the possessor of the land, without waiting for any proceeding legal or equitable to be instituted against him, may come into Court, assert their titles and have the controversy put to rest in the single judgment. It is plain, therefore, that this statutory suit is the converse of the legal action of ejectment.”
And we think it is plain that the statute under our consideration in terms provides both for ejectment and the converse result of assurance of title.
We think it would need no argument beyond this to set aside the Statute as unconstitutional and therefore void if the decree were pleaded in bar of proceedings in ejectment. But counsel contend that the Court should not pass upon the question of constitutionality until it is raised in an action where a jury is demanded, and that as the motion to admit claimants in probate does not, at this stage at least; raise the question of a denial of a jury, we should not take notice of that point. We answer that .counsel who move for the admission of new claimants have raised the question. It is true the argument on this head was not fully made on either side, upon some expectation that it would not be considered until a case of ejectment should be brought, but we have felt that if the Statute were plainly unconstitutional that we ought not to proceed upon it after the objection was made.
The lengthy proceedings liad in this estate under this Statute were had without objection. All parties who came into Court hoped to benefit by them. If the soundness of the procedure was questioned mentally, it was felt that the Act should have a trial, and it was not for the Court sua sponte to discard the new remedy which the Legislature had provided. A further experience of its operation discloses the difficulties of confining its use to what might have been the intention of the Legislature. We have before us at the present term another petition brought [638]*638under this Statute, Kapo vs. Mahoe, where the defendant has been in undisturbed possession of the premises under claim of heirship since. The Justice holding the trial ruled that the, defendant was entitled to a jury under ejectment proceedings, yet in terms the'Statute applies. At the July Term, 1878, in the matter of the petition of Louis Paloma, to quiet title, etc., the petitioner claimed by a right of inheritance against a respondent in possession, and holding by a title not of inheritance from the petitioner’s ancestor. There were some defects in the allegations of the petition, but it might have been brought in the terms of the Statute, that is to sJy, the Statute applies, but the Court held that as it was a proceeding to eject the respondent not holding as heir, he had a right by Article 7th of the Constitution to a trial by jury. In these cases the Court was not asked to declare the law unconstitutional, as it is in the present case.
If then the Statute is clearly in violation of constitutional guarantee, it is our duty to pronounce it void, and therefore the decree rendered under it is void, and is no bar to the present proceedings.
Plea overruled.