OPINION OP THE COURT.
Raynolds, J.
This is a suit in equity begun May 1, ■1909, by the plaintiff, Pankey, to quiet title and to obtain an injunction against the defendants restraining them from trespassing on a tract of land known as the Cadillal, alleged to be within the Baton or San Cristo-bal grant, of which plaintiff claims to be the owner.
The complaint sets up that the defendants during the year 1908 erected a fence upon the Cadillal tract and are now cultivating the soil of the said tract without permission of the plaintiff and are preventing the plaintiff from farming the same,' that defendants intend to continue cultivating the soil of said tract and to keep the plaintiff out of possession of his said farming land, and prays that defendants be enjoined and that the title be quieted in plaintiff. A temporary injunction was issued but was afterwards dissolved upon motion of defendants supported by affidavits. 'Thereafter a demurrer to the complaint was filed which raises the jurisdictional question that the complaint does not show that plaintiff or any one under whom he claimed has had possession of the lands within the Cadillal tract, but does show that defendants are in actual possession of the land, and that the plaintiff is not entitled-to any equitable relief until he establishes his title by an action at law. The demurrer was overruled by the court, and the action is assigned as error.
The defendants then filed an answer alleging that the Cadillal tract is outside the lands of the Eaton grant, lying to the west thereof, and avers that the fence mentioned in the complaint was not erected in 1908, as stated in complaint, but at some timé in the year 1884, shortly after the enactment of a statute which became a law April 2,1884. The answer further alleges that the fence has been kept up, maintained, and repaired down to the present time. The answer admits that the defendants are engaged in cultivating the soil of portions of the Cad-illal without permission of the plaintiff, and that they intend, as they have the lawful right to do, to continue such cultivating of the land. The answer further alleges that each of the defendants is the owner of one or more pieces within the Cadillal of which he and his ancestors and predecessors in title have had open, notorious, exclusive, adverse possession, hostile to the world ever since the year 1846, steadily and continuously using the same from year to year for agricultural and grazing purposes, and that their said adverse possession was an actual and visible appropriation of land commenced and continued in good faith under color of title and claim of right inconsistent with and hostile to the claim of any other person, of which fact plaintiff had notice and knowledge at or before the time of his purchase of any interest in the said Eaton grant, and further that the chain of title of each defendant is different and independent from the chain of title to the pieces of land belonging to any of the other defendants, and that each is entiled to a separate trial by jury before he can be lawfully dispossessed of his land within the Cadillal tract.
The complaint having set up a deraignment of title through a judgment and decree of the district court of Bernalillo county entered on November 2, 1903, which adjudicated the title of the Eaton grant in the said Thomas B. Catron, Saron N. Laughlin, and other minor holders, the answer alleges that said decree is without force or effect so far as these defendants are concerned, as the allegations of the complaint do not in any way connect these defendants or any of them with the said cause, and they further say that they were not, nor were any of them, parties to said cause. To the answer of the defendants plaintiff filed a reply alleging that in 1903 said lands were sold by partition decree as originally pleaded in the complaint, and that the defendants and their ancestors were designated as unknown heirs of two named persons deceased, as the unknown owners of the Eaton grant, and unknown claimants of interest adverse to Thomas B..Catron and Nicholas Pino, who were, the plaintiffs in the partition suit. Defendants moved to strike out portions of the reply, which was denied by the court, and that action is assigned as errorr.
On April 20, 19.15, there was filed by the defendants a protest against the trial of the canse in its present form, as such trial would deprive them of their right to trial by jury. 'When the ease came on for trial before the court, the defendants renewed their objection to any trial by the court on the ground that the case involved the recovery of possession of real estate, which the pleadings showed to be in the possession of the defendants. This objection was disregarded by the court.
At the conclusion of the taking of testimony defendants moved the court to dismiss the case on the ground that the evidence showed that it was instituted for the purpose of depriving the defendants of the possession and of rights of possession to different portions of the Oadillal, as to which each defendant has a right to a trial by jury. The record does not .show any distinct ruling on this motion, but the court evidently ignored it.
Defendants applied to the court to make findings of fact and conclusions of law, which application was denied. Defendants then presented objections to the final decree proposed by the plaintiff, and these objections were overruled. The court then entered a final decree by which the title of the plaintiff to the Oadillal was established and quieted against the adverse claim of defendants. From this decree the defendants have appealed ¡to this court, and have assigned among others, the following errors:
1. The district court erred in disregarding the protest of defendants against any trial of the cause in its present form by the court, and in forcing defendants to trial, thereby depriving them and each of them of a trial by jury, to which they were each entitled.
2. The district court erred in disregarding the objection of the defendants to any trial by the court made just before the beginning of said trial, claiming that each defendant Avas entitled to his trial by jury in this cause, which involves the recovery of the possession of real estate which the pleadings show to be in the possession of the defendants.
3. The district court erred in disregarding the motion by defendants, made after the conclusion of the talcing of testimony and before any findings or decree were made by the court, to dismiss the said cause for the reason that the evidence showed that it was instituted for the purpose of depriving defendants and each one of them of the possession, and of his right to the possession of different portions of the tract known as the Cadillal, each of said defendants holding possession of different portions of said tract by a different chain of title from any of the other defendants, and therefore each defendant had a constitutional right to a separate and independent trial by jury before his right to the possession of the land could be determined.
4. The district court erred in denying the motion of defendants to strike out from the evidence parts of the record in the case of Catron et al. v. Laughlin et al. for reasons set forth in said motion.
The complaint alleges that the defendants are in possession of the land title to which is sought to be quieted; that they have fenced it and are cultivating it. The defendants demurred to the complaint, and after the demurrer was overruled and they had answered claiming- title and right to possession, they objected to the trial of the case on the ground that it was an attempt to deprive them of their possession and to try their title by a suit in equity, that the action was properly one at law in ejectment, and that they had a constitu-ional right to a trial by jury. This objection was raised at every stage of the proceedings.
The statute -under which this suit to quiet title is brought is as follows:
“An action to determine and quiet the title of real property may be brought by any one having or claiming an interest therein, whether in or out of possession of the same, against any person claiming title thereto.” Code 1915, §4387.
Our statutes in ejectment are found in sections 4360 to 4378, inclusive, Code 1915. Section 4360 provides:
“The action of ejectment may be maintained in all cases where the plaintiff is legally entitled to the possession of the premises.”
Section 4362:
“The action shall be prosecuted in the real names of the parties, and shall be brought against the tenant in possession, or against the person under whom such tenant holds or claims possession. Any person claiming such premises may, on motion, be made a defendant.”
Section- 4363:
“It shall be sufficient for the plaintiff to declare in his complaint that on some day, named therein, he was entitled to the possession of the premises, describing them; and that the defendant, on- a day named in the complaint, afterwards entered into such premises, and unlawfully withheld from the plaintiff the possession thereof, to his damage for any sum he may name.”
The right to trial by jury upon which appellants rely is found in the Bill of Rights, article 2 of our Constitution, and is as follows:
“Sec. 12. The right of trial by jury as it has heretofore existed, shall be secured to all and remain inviolate.”
Section 17 of the Organic Act establishing the territory of New Mexico (9 Stat. 452) is as follows:
“That the Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within the said territory of New Mexico as elsewhere within the United States.”
The appellee urges that he does not seek to obtain possession of the premises, but only to quiet title against these defendants, and that subsequently he might bring a suit in ejectment to obtain possession of the land, and it was probably upon this theory that the trial court proceeded with the case.
[1] It is a well-established principle that equity will not take jurisdiction where the remedy at law is plain, adequate, and complete.
“In all cases where the plaintiff holds or claims to have a purely legal estate in land, and simply seeks to have his title adjudicated upon, or to recover possession against an adverse claimant who also relies upon an alleged title, there being' no equitable feature of fraud, mistake, or otherwise, calling for the application of the equitable doctrines or the granting' of peculiar equitable reliefs, the remedy at law is adequate, and the concurrent jurisdiction of equity does not exist. A suit in equity, under its concurrent jurisdiction, will not be maintained to take the place of the action of ejectment, and to try adverse claims and titles to land which are wholly legal, and to award the relief of a recovery of possession.” Pom. Eq. Jur. (4th Ed.) vol. 1, par. 177.
“When the estate or interest to be protected is equitable, the jurisdiction to quiet title or remove cloud should be exercised whether plaintiff is in or out of possession; but, when the estate or interest is leg-al in its nature, the exercise of the jurisdiction of equity to quiet a title or to remove a cloud therefrom depends upon the adequacy of legal remedies.” 32 Cyc. “Quieting Title,” p. 1308, and cases cited.
“The remedy by ejectment is generally regarded as plain, adequate, and complete, and a party will ordinarily be left to that remedy when it exists. Thus, where the title is purely a legal one, and defendant is in possession, the remedy is regarded as plain, adequate, and complete.” 32 Cyc. “Quieting Title,” p. 1312, and cases cited.
[2] Where the jurisdiction of equity has been extended by statute, and where there is some well-known g-round of equity jurisdiction, and there is no constitutional prohibition, courts of equity frequently assume jurisdiction. As is said in Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 Fed. 9, at page 10, 50 C. C. A. 84, at page 86 (61 L. R. A. 230) :
“The general disposition of the courts is to retain jurisdiction of any subject where there is any plausible ground of equitable cognizance (Waite v. O’Neil [C. C.] 72 Fed. 348, 356; Randolph v. Allen, 19 C. C. A. 353, 73 Fed. 23, 30; Grather v. Wright, 23 C. C. A. 498, 75 Fed. 742-749; Greely v. Lowe, 155 U. S. 58, 75, 15 Sup. Ct. 24, 39 L. Ed. 69), especially where such jurisdiction would not infringe upon the constitutional rights of the parties to a trial by jury.”
“In several states equitable jurisdiction has been enlarged by statute so as to permit actions to quiet title, or remove cloud thereon, to be maintained even where plaintiff is not in possession. If these statutes be regarded as giving an absolute right to the equitable remedy where an adequate remedy at law exists, the effect is to deprive the party in possession of the right to trial by jury, and they are therefore unconstitutional.” 32 Cyc. “Quieting Title,” p. 1311.
See, also, Tabor v. Cook, 15 Mich. 322; Newman v. Duane, 89 Cal. 597, 27 Pac. 66.
Where the jury has been waived expressly or by action of the parties, a court of equity has taken jurisdiction of the cause (Green v. Turner [C. C.] 98 Fed. 758; Hyde v. Bedding, 74 Cal. 493, 16 Pac. 380); or where the defendant admits the plaintiff is in possession (Angus v. Carven, 132 Cal. 691, 64 Pac. 1091).
In another class of cases where neither plaintiff nor defendant is in possession and the question is one merely for the determination of the legal title, courts of equity have assumed and retained jurisdiction to quiet title. Baca v. Anaya, 14 N. M. 382, 94 Pac. 1017, 20 Ann. Cas. 77; More v, Steinbach, 127 U. S. 70, 8 Sup. Ct. 1067, 32 L. Ed. 51; Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. 495, 28 L. Ed. 52. Or again in a similar class of cases where the land is wild or vacant, courts have assumed jurisdiction to quiet title. Gage v. Abbott, 99 Ill. 366; McGrath v. Norcross, 70 N. J. Eq. 364, 61 Atl. 727; Moore v. Shofner, 40 Or. 488, 67 Pac. 511; Gordan v. Jackson (C. C.) 72 Fed. 86, where it is said:
“Where lands were wild or .unoccupied, it had been held that the federal courts, In chancery, sitting' in states that had adopted such statutes, could entertain suits to quiet title in the rightful owner. Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. 495. But in such cases, a court of law can afford the owner no remedy, and therefore there is no right to a trial by jury, since such right existed only in cases at law. It is therefore no violation of the Constitution or statute to bring such suits in equity. But where lands are unlawfully occupied, the owner can sue the occupant at law, and the consequent right of trial by jury exists. Hence the difference from the case where no one is in possession or sued at law. In Whitehead v. Shattuck, 138 U. S. 146, 11 Sup. Ct. 276, the effect of a similar Iowa statute upon the practice of the federal courts of that state was well considered and clearly reasoned in an opinion by Justice Field. It is well to note that he had written the opinion of the court in Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. 495, which is sometimes thought to warrant suits like this. But he clearly indicates the distinction between the case where -no one is in possession, and a court of law can afford no remedy, and that where the defendant is in possession, and the plaintiff may sue him at law, and obtain adequate and complete relief.”
On the other hand, where the defendant is in possession, claiming title, federal courts have uniformly refused to grant the relief asked in a suit to quiet title or in a similar action.
“This court has held in a multitude of cases that, where the laws of a particular state gave a remedy in equity, as, for instance, a bill by a party in or out of possession, to quiet title to lands, such remedy would be enforced in the federal courts, if it did not infringe upon the constitutional rights of the parties to a trial by jury. Clark v. Smith, 13 Pet. 195; Holland v. Challen, 110 U. S. 15; Reynolds v. Crawfordsville Bank, 112 U. S. 405; Chapman v. Brewer, 114 U. S. 158, 171; Cummings v. National Bank, 101 U. S. 153, 157; United States v. Landrum, 118 U. S. 81; More v. Steinbach, 127 U. S. 70.” Greely v. Low, 155 U. S. 58, at page 75, 15 Sup. Ct 24, at page 28 (39 L. Ed. 69).
See Whitehead v. Shattuck, 138 U. S. 146, 11 Sup. Ct. 276, 34 L. Ed. 873; Gordan v. Jackson (C. C.) 72 Fed. 86; Gombert v. Lyon (C. C.) 80 Fed. 305; Erskine v. Forest Oil Co. (C. C.) 80 Fed. 583; Blythe v. Hinckley (C. C.) 84 Fed. 228; Davidson v. Calkins (C. C.) 92 Fed. 230; Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 Fed. 4, 50(C. C.) A. 69, 61 L. R. A. 230; Hanley v. Kansas & T. Coal Co. (C. C.) 110 Fed. 62.
“Where,, however, the defendant is in possession, it is held in most jurisdictions that he is entitled to a jury trial, at least where the complainant seeks restitution or possession as a part of his relief.” Pomeroy, Eq. Rem. vol. 2, par. 736, and cases cited.
See, also, Pom. Eq. Jur. vol. 1, § 293, pp. 503 and 504, and cases cited; Donahue v. Meister, 88 Cal. 121, 25 Pac. 1096, 22 Am. St. Rep. 283.
The same rule is also applied in state courts. Where the defendant is in possession, the reason for the rule is placed upon two grounds; i. e., that the remedy in ejectment at law is adequate, and that the parties have a constitutional right to trial by jury. This rule seems to be uniform throughout the United States when the questions of the adequacy of the legal remedy and the constitutional right to jury trial have.been properly raised and are before the court for adjudication. See Whitehouse v. Jones, 60 W. Ya. 680, 5.5 S. E. 730, 12 L. R. A. (N. S.) 49, and extended note thereto, page 67; Hughes v. Hannah et al., 39 Fla. 365, at page 373, 22 South. 613; McCoy v. Johnson, 70 Md. 490, 17 Atl. 387; Tabor v. Cook, 15 Mich. 322.
In Carlson v. Sullivan, 146 Fed. 476, at page 479, 77 C. C. A. 32, at page 35, it is said:
“We are of the opinion that, under the provisions of the Seventh Amendment to the Constitution of the United States, a party in possession of real estate, claiming' the whole title, is entitled to a right of trial by jury, and that this rule is settled by the decisions of the Supreme Court. Whitehead v. Shattuck, 138 U. S. 146, 151, 11 Sup. Ct. 276, 34 L. Ed. 873; Scott v. Neely, 140 U. S. 106, 109, 11 Sup. Ct. 712, 35 L. Ed. 358; Lacassagne v. Chapuis, 144 U. S. 119, 12 Sup. Ct. 659, 36 L. Ed. 368. It is contended by appellants, however, that the right of trial by jury is not a fundamental right, and that the Seventh Amendment to the Constitution has no application to the territorial legislation, nor to the jurisdiction of the courts thereunder, and that the federal courts will not decline equity jurisdiction simply because legal questions are involved, when the action is brought under a state or territorial statute, and not under the general equity powers of the court; and numerous authorities are cited in support of these propositions.
“That the Constitution of the United States applied to Alaska is settled by the reasoning and decision of the court in Rassmussen v. United States, 197 U. S. 516, 525, 25 Sup. Ct. 514, 49 L. Ed. 862, et seq.”
“If the defendant be in possession, the bill may not be maintained; for the complainant haá a plain, adequate, and complete remedy at law by suit in ejectment. Cases last cited. It follows, therefore, that a bill in equity to quiet title may, even under the enlarged jurisdiction conferred by the New Mexico statute, be maintained only (1) where the complainant is in possession, or (2) where neither plaintiff nor defendant is in possession; and a complaint framed under the New Mexico statute must therefore allege affirmatively either one or the other of these conditions, in order to show that complainant is without remedy at law. A failure so to. do renders the bill bad on demurrer. So. Pac. Co. v. Goodrich (C. C.) 57 Fed. 879 (opinion by Mr. Justice McKenna); U. S. Mining Co. v. Lawson (C. C.) 115 Fed. 1005. See, also Boston Co. v. Montana Co., 189 U. S. 632, 23 Sup. Ct. 434, 47 L. Ed. 626.” Baum v. Longwell (D. C.) 200 Fed. 450, at page 451.
See also, Kennon v. Gilmer, 131 U. S. 22-28, 9 Sup. Ct. 696, 33 L. Ed. 110; volume 10, Ruling Case Law, Equity, §§ 27-30.
It will thus be seen that a suit to quiet title cannot be maintained in this case for two reasons: First, the plaintiff has a plain, speedy, and adequate remedy at law in ejectment; and, second, the defendants have a constitutional right to trial by jury of which they cannot be deprived by .a suit of this nature. This right is given them by the Seventh Amendment to the Constitution of the United States. It was extended to the territory of New Mexico by section 17 of the Organic Act and secured to these defendants by the language of section 12, art. 2 of the state Constitution, above quoted. The court erred therefore in overruling defendants’ demurrer and proceeding with the trial of the case over, the defendants’ objection.
[3] The remedy in ejectment is generally regarded as plain, adequate, and complete, and where the defendant is in possession and the title is purely a legal one, the party will ordinarily be left to that remedy when it exists. 32 Cyc. Quieting Title, p. 1312, cited supra. It is argued by appellee that, although the remedy by ejectment exists in which a jury trial is guaranteed by the Constitution, such remedy is not adequate, and that the court of equity may and could, under its general equity powers, hear and determine a cause in order to prevent multiplicity of suits, where one plaintiff begins the action against many defendants, each of whom claims a common origin of right to the property in question. This contention is without merit here, as a case in which multiplicity of suits is avoided by the intervention of equity is not made out by the pleadings. The appellants in their answer claim separate interest in the property by adverse possession under* color of title. The. color of title is the only element their defenses have in common, and a trial of one case would not settle and determine any fact common to all, except the question of the color of title, under which they all claim. As to their rights and titles acquired by adverse possession, each case would rest upon different facts, and different conclusions could be drawn therefrom. This distinction, and the limitation on the power of a court of equity to take jurisdiction to avoid multiplicity of suits is clearly set forth in the fourth edition of Pomeroy’s Equity Jurisprudence, par. 251%, where the editor of the fourth edition, John Norton Pomeroy, Jr., explains and limits in said paragraph the principle laid down in the third edition of said work in paragraphs 243 to 275, inclusive:
“The equity suit must result in a simplification or consolidation of the issues; if, after the numerous parties are joined, there still remain separate issues to be tried between each of them and the single defendant or plaintiff, nothing has been gained by the court of equity’s assuming jurisdiction. In such a case, ‘While the bill has only one number upon the docket and calls itself a single proceeding, it is in reality a bundle of separate suits, each of which is no doubt similar in character to the others.’ ” Pom. Eq. Jur. (4th Ed.) par. 251%.
Aud this principle is recognized by the Supreme Court of Vermont in the case of International Paper Co. v. Bellows Falls Canal Co., 88 Vt. 93, 90 Atl. 943.
The reason for this limiting principle is well stated in the above quotation from section 251%, Pomeroy, and this limitation is directly applicable to the suit at bar. Some courts, without recognizing the limitation above stated, have carried the doctrine very far indeed. Many cases will be found collected in notes to the case of Illinois Steel Co. v. Schroeder, reported and annotated in 14 L. R. A. (N. S.) 239, and 126 Am. St. Rep. 977. The great weight of judicial decisions, however, recognizeo and adhere to the limiting principle further developed by the editor of Pomeroy, fourth edition, and on principle this must be sound.
In Peniston v. Press Brick Co., 234 Mo. 698, 138 S. W. 532, will be found a very able and learned discussion of the question by Judge Lamm of the Missouri Supreme Court, and his views met the concurrence of the entire court. In that case plaintiff sought to join 475 defendants in a suit to quiet title and for the posession of real estate in a proceeding almost identical with that now under consideration. In this case there was a common source of color of title as to all tbe 475 defendants, but each claimed title by adverse possession. After referring to a former decision of the Missouri Supreme Court, the court said:
"The Chaput Case, while directly riding- off on a question of multifariousness, did not neglect to consider the equitable doctrine of avoiding a multiplicity of suits pressed upon us in this case. To the contrary, that question was involved there, and the authorities cited in that ease dealt with that matter as did the case itself.
"Counsel for defendants cite us to additional authorities strongly fortifying- the Chaput Case, viz.: Buchanan County v. Adkins, 175 Fed. 692; Slosson v. McNulty et al., 125 Ala. 124; Tompkins v. Craig, 93 Fed. 885; Lehigh Valley Railroad v. McFarland, 30 N. J. Eq. 135; Webb v. Parks, 110 Ga. 639: Portwood v. Huntress, 113 Ga. loc. cit. 819; Scott v. McFarland, 70 Fed. 280; O’Brien v. Fitzgerald, 39 N. Y. Supp. loc. cit. 709; 1 Pomeroy’s Equity (3d Ed.) § 251%. The guiding-principle announced in thosé cases and authorities is that there must be such common relation, common interest, or common question involved that one proceeding- in equity may really avail to prevent a multiplicity of suits and permit a g-eneral bill of peace. Valiere that principle does not obtain there is no real avoidance of a multiplicity of suits, and the reason of the rule failing, the rule cannot be invoked.
“In the case at bar a multiplicity of suits is avoided only in name and at the start, not in reality and at the end. Here each defendant stands on his own title under the statutes of limitations. There is no common interest, or common relationship, or common question anent the subject-matter decisive of the controversy. When a jury decides for or against one defendant, the title of another is not affected a whit, but remains quite open, depending on the facts of his individual case — that is, each tub stands on its own bottom; and we can see no reason why these plaintiffs should be allowed to tie a whole population into a composite and blanket lawsuit, when no sensible benefit arises from it, except an avoidance to plaintiffs of the manual labor of bringing a separate suit for 'each tract against the claimant of that tract, and the further relief to them of being eased of the burden of the preliminary costs of instituting so many actions.
“The cases cited by counsel for plaintiffs from our own reports (of which Tucker v. Tucker, 29 Mo. 350, is an example), when carefully analyzed and discriminately applied to the concrete facts in judgment, do not run counter to Chaput v. Bock.
“(c) But, it is argued, the instant case differs in material facts from the Chaput Case, and therefore should not be ruled by it. We see no material difference-in vital features.
“(1) True the reply filed in the instant case differs from that filed in the Chaput Case in that it set up a common source of title, viz. Solomon P. Sublette, while in the Chaput Case there was no common source of title. But that fact does not differentiate one case from the other on principle. A common source of title agreed to or shown to exist merely marks that link in the chain of title at which the trial of title between adverse claimants may begin, and if on the motion for judgment on the pleadings it be assumed there was a common source of title, viz. Solomon Sublette, yet the issues raised by the pleadings relating’ to the statute of limitations remain precisely the same in both cases. The issues entitled defendants to a severance and make necessary 475 trials, thereby making the reasoning of the Chaput Case conclusive in the case at bar, Unless something else distinguishes the case.”
In Hale v. Allinson, 188 U. S. 56, 23 Sup. Ct. 244, 47 L. Ed. 380, the court points out that the assumption of jurisdiction to prevent a multiplicity of suits might in some cases do so as a matter of form rather than of substance, and, while leading- to inconvenience, it would constitute good ground for denying jurisdiction. Many other cases will be found in the notes to the annotated case above referred to. Very few eases, if any, go as far as the appellee would have this court go in the present instance in upholding the equity jurisdiction of the court to avoid a multiplicity of suits.
[4] It is urged by the appellee that appellants are estopped by the decree of partition in the case of Catron et al. v. Laughlin et al., No. 4849, Bernalillo county, under which decree plaintiff’s grantor claims the title to the land involved in this suit. The above-named case was a suit in partition in which the appellants in the present case were made parties under the name of “unknown claimants” of interest adverse to the plaintiff in the partition suit, or the “heirs of unknown claimants.” The appellants here were at all times in open, notorious, and adverse possession of the land which .they now claim, and it is evident from the record the plaintiff’s in the partition proceedings had knowledge, or the means of knowledge, of their names and residences. Under Rodriquez v. La Cueva Ranch Co., 17 N. M. 246, 134 Pac. 228, following Priest et al. v. Las Vegas, 16 N. M. 692, 120 Pac. 894, such defendants in a partition proceeding, or suit to quiet title, could not be made parties to sucb suit under tbe name of “unknown owners or claimants, ’ ’ and service by publication obtained against them would be invalid, and they would not be bound by a decree in such a case. As is said in Rodriquez v. La Cueva Ranch Co., supra:
“Plaintiffs in the bill for partition allege that they were informed that various other persons made claim to portions of the grant, but that who they were or what their names were plaintiffs were unable to state, not knowing same. If this allegation referred to appellees or their predecessors in interest, it certainly was insufficient. They were at the time in the open notorious possession of the lands now in dispute, and their names could have been easily ascertained. Can it be said, then, that appeilees were unknown claimants within the meaning of the partition statute so as to be affected by the published notice? We think not.”
Next after the foregoing quotation, the court sets out sections 3180 and 3181 of the Compiled Laws of 1897, under which the partition proceedings were had, and then says:
“It is apparent from a reading of the foregoing sections, it seems to us, that it was not the intention of the legislature to provide for the making of parties by the name of unknown owners, and for the service of process upon them by publication when they in fact were in the open and notorious adverse possession of a part of the premises. The test seems to be pointed out in section 3180, that there must be some impediment so that the parties cannot be named before resort may be had to a procedure so well known to be ineffective to bring home notice to interested parties. In the partition proceedings the plaintiffs and defendants named were claiming to be the owners of the property and to have title to the same. They had the means, as indeed we believe it was their duty, to ascertain the names of all persons actually holding adverse possession of any of the property claimed which was the subject-matter of the litigation. And so we conclude that it was not the intention of the Legislature to' allow the rights of claimants to land, situated as the appellees and their predecessors in title were, to be foreclosed of their rights by a proceeding in which they are not named, and in which the only service obtained upon them was by publication. To hold otherwise would be to say that the plaintiff in a partition proceeding may sit in his office, refrain from all inquiry as to the persons claiming- any part of the estate sought to be par-tioned, pursue no sources of information of which he may be aware, and, because in fact he does not actually know the names of the adverse claimants to the estate sought to be partition, he may proceed against them as unknown owners, and thereby deprive them effectually of all of their rights and property. Such we cannot believe was the intention of the Legislature.”
There are other assignments °of error, but we do not deem it necessary to consider them as the ones herein-before mentioned are controlling.
For the reasons above stated, the cause is reversed; and it is so ordered.
PARKER, J., concurs.