Wa&ner, Judge,
delivered the opinion of the court.
The former judgment of this court having been reversed in the Supreme Court of the United States, the plaintiff now files the mandate of that court, and moves that the judgment of this court be reversed, and that of the Common Pleas Court of St. Louis county be affirmed.
[125]*125When the case was here before (40 Mo. 406) it was determined that the defendants possessed the legal title and had also the equities, and accordingly judgment was given in their favor.
On error to the Supreme Court of the United States, that court adjudged that the legal title to the premises in dispute was vested in the plaintiff; that Brazeau’s confirmation, under which plaintiff holds, was valid; and that Labeaume’s confirmation, whence the defendants claim to derive title, embraced no part of the land in controversy. (Magwire v. Tyler, 8 Wall. 650.)
If the decision in the Supreme Court of the United States be correct, the case has been tried throughout on a mistaken theory. The suit was instituted by bill in equity, and proceeded upon the ground that the prior legal title was in the defendants. The petition alleged that the plaintiff had the better equity, and that the land justly belonged to him ; that the defendants and others, in combination and confederacy with them, procured a patent to be issued to them, and that the survey and patent were procured and issued by fraud, covin, and misrepresentation; that the defendants, previous to the acquisition of any interest or claim in the land, had notice of the interest or claim of the plaintiff; and that defendants’ patent was a cloud on plaintiff’s better title. The petition then prayed that the court, by its judgment and decree, would divest out of the defendants all the right, title, and interest acquired*or claimed by them and each of them, from Louis Labeaume or any one claiming under him, and invest the same in the plaintiff and put him in possession thereof, and for an account, etc. *
The answer denied these allegations, and claimed that defendants had the prior title and better equity. It also pleaded in bar a final decree in chancery in a former suit between the same parties, upon the same identical equities; alleged that defendants were innocent purchasers for a valuable consideration, and insisted that plaintiff’s suit was barred by the great lapse of time.
The only question which it was competent for the Supreme Court of the United States to notice when the cause was removed there was the question of title arising out of the respective confirmations under which the parties claimed.
[126]*126Everything else set up in the bill and answer was peculiarly and exclusively of local State jurisdiction, over which the national tribunal had no control, and concerning which an adjudication here is final.
In cases going from a State court to the United States Supreme Court, the jurisdiction of the latter court is limited and restricted by the twenty-fifth section of the judiciary act, and it can only proceed in accordance with the provisions of that section. The section directs that the decision of the highest court in a State may be reviewed when that decision was had upon a question arising under the constitution, statutes or treaties, or a commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party. But the further express provision is made that no error shall be assigned or regarded as a ground of reversal in any such oase as aforesaid, other than such as appears on the face of the record, and immediately respects the before-mentioned questions of validity or construction of the said constitution, treaties, statutes, commission or authorities in dispute.
Under this statute the express ruling is that the court is confined to an examination of the questions arising under the laws of the United States, and can not consider any distinct equity arising out of contracts or transactions between the parties. (Matthews v. Zane, 7 Wheat. 164.) It follows, therefore, that the only thing which the national court did or could decide was the validity of the respective confirmations to Brazeau and Labeaume, under which the- parties herein claim; and it was decided most conclusively and unequivocally that the Brazeau confirmation, under which the plaintiff’s title accrued, was valid, and that the Labeaume confirmation, by virtue of which the defendants seek to derive title, did not embrace the land in dispute confirmed to Brazeau. In conformity with that decision, the legal title is vested in the plaintiff, and his remedy is the next question to be considered.
That ejectment is the proper and appropriate remedy, where a party has the title, to .recover possession'of real estate, is a principle too well established to require argument or the citation of [127]*127authorities. A hill in equity is not the proper remedy to recover the possession of lands; and where there is an adequate and complete remedy at law, a court of equity will not interpose unless upon some matters coming under some peculiar head of concurrent equity jurisdiction. (Janney v. Spedden, 38 Mo. 395.)
In those cases where it is permissible under the code to combine in the same proceeding or petition legal and equitable claims,, the matter in equity and the action at law must be separately stated and must necessarily be separately tried. Each count must be tried by itself, according to the prescribed mode in such actions and suits. In- an action at law there is a constitutional right of trial byjury, which has no existence in equity. The courts in New York have held that an equitable cause of action to remove — as a cloud upon the plaintiff’s title — a deed given by mistake by a third party to the defendants, under which, having fraudulently obtained possession by connivance with the plaintiff, s tenant, he claims to hold as owner, and a claim to recover the possession of the premises may be united in the same action and asserted in the same complaint. But it is also clearly held that where legal, and equitable causes of action are united under the code, as to the former, on the trial of the causes, the issues must be submitted to a jury. (Bradley v. Aldrich, 40 N. Y. 510; Lattice v. McCarty, 41 N. Y. 107.)
It has often been held in this court that in a bill to set aside a deed as fraudulent, the plaintiff can not sue for the recovery of the possession of the land, and that proceedings instituted for the purpose of vacating title, vesting it in the plaintiff, and to eject defendant and obtain possession, are fatally erroneous on writ of error or appeal, and can not be sustained. When the decree is entered establishing plaintiff’s title, he must then pursue his remedy in ejectment for the possession. The defendant has a right to demand this. He has a right to have a jury pass upon the question of rents and profits, and upon other questions which may arise in that form of action.
In like manner it has been held that a cause of action in ejectment can not be united with a cause of action for partition of the premises sued for. (See Peyton v. Rose, 41 Mo. 257; Curd v. [128]*128Lackland, 48 Mo. 139; Young v. Coleman, id. 179; Gray v. Payne, id. 203; Wynn v. Cory, id. 301; Jones v. Moore, 42 Mo. 413; Lambert v. Blumenthal, 26 Mo. 471; Gott v. Powell, 41 Mo. 416.)
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Wa&ner, Judge,
delivered the opinion of the court.
The former judgment of this court having been reversed in the Supreme Court of the United States, the plaintiff now files the mandate of that court, and moves that the judgment of this court be reversed, and that of the Common Pleas Court of St. Louis county be affirmed.
[125]*125When the case was here before (40 Mo. 406) it was determined that the defendants possessed the legal title and had also the equities, and accordingly judgment was given in their favor.
On error to the Supreme Court of the United States, that court adjudged that the legal title to the premises in dispute was vested in the plaintiff; that Brazeau’s confirmation, under which plaintiff holds, was valid; and that Labeaume’s confirmation, whence the defendants claim to derive title, embraced no part of the land in controversy. (Magwire v. Tyler, 8 Wall. 650.)
If the decision in the Supreme Court of the United States be correct, the case has been tried throughout on a mistaken theory. The suit was instituted by bill in equity, and proceeded upon the ground that the prior legal title was in the defendants. The petition alleged that the plaintiff had the better equity, and that the land justly belonged to him ; that the defendants and others, in combination and confederacy with them, procured a patent to be issued to them, and that the survey and patent were procured and issued by fraud, covin, and misrepresentation; that the defendants, previous to the acquisition of any interest or claim in the land, had notice of the interest or claim of the plaintiff; and that defendants’ patent was a cloud on plaintiff’s better title. The petition then prayed that the court, by its judgment and decree, would divest out of the defendants all the right, title, and interest acquired*or claimed by them and each of them, from Louis Labeaume or any one claiming under him, and invest the same in the plaintiff and put him in possession thereof, and for an account, etc. *
The answer denied these allegations, and claimed that defendants had the prior title and better equity. It also pleaded in bar a final decree in chancery in a former suit between the same parties, upon the same identical equities; alleged that defendants were innocent purchasers for a valuable consideration, and insisted that plaintiff’s suit was barred by the great lapse of time.
The only question which it was competent for the Supreme Court of the United States to notice when the cause was removed there was the question of title arising out of the respective confirmations under which the parties claimed.
[126]*126Everything else set up in the bill and answer was peculiarly and exclusively of local State jurisdiction, over which the national tribunal had no control, and concerning which an adjudication here is final.
In cases going from a State court to the United States Supreme Court, the jurisdiction of the latter court is limited and restricted by the twenty-fifth section of the judiciary act, and it can only proceed in accordance with the provisions of that section. The section directs that the decision of the highest court in a State may be reviewed when that decision was had upon a question arising under the constitution, statutes or treaties, or a commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party. But the further express provision is made that no error shall be assigned or regarded as a ground of reversal in any such oase as aforesaid, other than such as appears on the face of the record, and immediately respects the before-mentioned questions of validity or construction of the said constitution, treaties, statutes, commission or authorities in dispute.
Under this statute the express ruling is that the court is confined to an examination of the questions arising under the laws of the United States, and can not consider any distinct equity arising out of contracts or transactions between the parties. (Matthews v. Zane, 7 Wheat. 164.) It follows, therefore, that the only thing which the national court did or could decide was the validity of the respective confirmations to Brazeau and Labeaume, under which the- parties herein claim; and it was decided most conclusively and unequivocally that the Brazeau confirmation, under which the plaintiff’s title accrued, was valid, and that the Labeaume confirmation, by virtue of which the defendants seek to derive title, did not embrace the land in dispute confirmed to Brazeau. In conformity with that decision, the legal title is vested in the plaintiff, and his remedy is the next question to be considered.
That ejectment is the proper and appropriate remedy, where a party has the title, to .recover possession'of real estate, is a principle too well established to require argument or the citation of [127]*127authorities. A hill in equity is not the proper remedy to recover the possession of lands; and where there is an adequate and complete remedy at law, a court of equity will not interpose unless upon some matters coming under some peculiar head of concurrent equity jurisdiction. (Janney v. Spedden, 38 Mo. 395.)
In those cases where it is permissible under the code to combine in the same proceeding or petition legal and equitable claims,, the matter in equity and the action at law must be separately stated and must necessarily be separately tried. Each count must be tried by itself, according to the prescribed mode in such actions and suits. In- an action at law there is a constitutional right of trial byjury, which has no existence in equity. The courts in New York have held that an equitable cause of action to remove — as a cloud upon the plaintiff’s title — a deed given by mistake by a third party to the defendants, under which, having fraudulently obtained possession by connivance with the plaintiff, s tenant, he claims to hold as owner, and a claim to recover the possession of the premises may be united in the same action and asserted in the same complaint. But it is also clearly held that where legal, and equitable causes of action are united under the code, as to the former, on the trial of the causes, the issues must be submitted to a jury. (Bradley v. Aldrich, 40 N. Y. 510; Lattice v. McCarty, 41 N. Y. 107.)
It has often been held in this court that in a bill to set aside a deed as fraudulent, the plaintiff can not sue for the recovery of the possession of the land, and that proceedings instituted for the purpose of vacating title, vesting it in the plaintiff, and to eject defendant and obtain possession, are fatally erroneous on writ of error or appeal, and can not be sustained. When the decree is entered establishing plaintiff’s title, he must then pursue his remedy in ejectment for the possession. The defendant has a right to demand this. He has a right to have a jury pass upon the question of rents and profits, and upon other questions which may arise in that form of action.
In like manner it has been held that a cause of action in ejectment can not be united with a cause of action for partition of the premises sued for. (See Peyton v. Rose, 41 Mo. 257; Curd v. [128]*128Lackland, 48 Mo. 139; Young v. Coleman, id. 179; Gray v. Payne, id. 203; Wynn v. Cory, id. 301; Jones v. Moore, 42 Mo. 413; Lambert v. Blumenthal, 26 Mo. 471; Gott v. Powell, 41 Mo. 416.)
It is a grave error — an entirely mistaken notion — to suppose that all distinction .between law and equity is abolished by our code of procedure. The line of demarkation — the great and essential principles which underlie the -respective systems —is inherent and exists in the-very nature of things. Although legal and equitable cases are to a certain degree blended as to form,' the principles remain the same, and the court will not interfere and exert its equity powers in. a strictly legal action.
This principle is almost daily acted upon in our .courts, and has been the uniform course of practice ever since the adoption of our new system. , In- all the .States, where the. code has been instituted, the ruling has .been harmonious in the same way. The statute enacts that “there shall be.in this State but one form of action for the enforcement or protection of . private .rights and the redress or prevention of private wrongs, which shall be denominated a 4 ciyilaction.’(Wagn. Stat. 999, § 1; R. G. 1855, p; 1216, § 1.)
In providing that there shall be but one form of civil action, the Legislature can not be supposed to have intended at one stroke or sweeping enactment, to abolish the well-recognized and long-established distinction between law and equity. Such a construction would lead to perplexities and difficulties, infinite and endless in their character. The innovation extends only to the form of action in the pleadings. While the difference in form and the technicalities in pleadings have been, dispensed with, and the party need only, state ■ his cause of action in ordinary and concise language, whether it be under assumpsit, trover, trespass, or ejectment, without regard to the ancient forms.; still the distinction. between these actions has not been destroyed, but remains the same. So cases legal and equitable have not been consolidated, although there is no difference between the form of the bill in chancery and the common-law declaration under our system.; where all relief is sought in the same way from the same [129]*129tribunal. Tbe distinction between law and equity is as naked and as broad as ever. To entitle tbe plaintiff to an equitable interposition of tbe court, be must show a proper case for tbe interference of a court of chancery, and one in wbicb be bas no adequate or complete relief at law. Tbe judgment vesting him with tbe legal title shows that be bas a complete, appropriate and ample remedy at law by ejectment. These plain principles were entirely overlooked at tbe trial in tbe Court of Common Pleas, but, as before remarked, according to tbe decision of tbe majority of tbe court, tbe case was instituted and tried upon a misapprehension.
In this view, of tbe subject we consider it unnecessary and inappropriate to discuss or render an opinion upon certain questions wbicb have been argued by counsel. When tbe matters insisted upon are properly before this court they must be reviewed, but not till then. Wherefore it results that so much of tbe motion as asks for an affirmance of tbe judgment of tbe Court of Common Pleas will be overruled, and, in accordance with tbe mandate, tbe judgment of this court will be reversed and tbe petition dismissed.
Tbe other judges concur.