MURANE, District Judge.
The cause is now before the court upon the motions of the defendants for an order assigning this cause on the jury trial calendar and for fixing the date of the trial of said action, which raises the question whether said cause should be tried before the court as a suit in equity or before the court and jury as an action at law.
The complaint is evidently framed under section 475 of the Alaska Code, and plaintiff’s attorneys in argument contended that it is a suit in equity to quiet title and to determine adverse claims, while defendants contend in their argument and brief that they are entitled to a jury trial upon the question of possession and title, and that the case should be tried before a jury, and cites section 1, art. 7, of the amendment of the Constitution of the United States, which they contend entitles them to a jury trial in a cause of this nature. Counsel for de[392]*392fendants cite a number of cases in support of this contention, but rely chiefly upon the case of Carlson v. Sullivan, 146 Fed. 476, 77 C. C. A. 32, and the case of Donahue v. Meister, 88 Cal. 121, 25 Pac. 1096, 22 Am. St. Rep. 283.
The case of Carlson v. Sullivan was a suit in partition which went to the Circuit Court of Appeals, Ninth Circuit, from this division, but the complaint in that case shows that the plaintiff was not in possession, and that the defendants, who were in possession, were disputing the title of plaintiff. In the same volume is another case which went from this division, entitled Forderer v. Schmidt, 146 Fed. 480, 77 C. C. A. 36, where the Circuit Court of Appeals draws the distinction between a case where the plaintiff is out of possession and his title is disputed, and a case where the plaintiff is out of possession and whose title is not disputed. I do not think that either case is decisive of the question before the court on this motion.
The Circuit Court of Appeals, Ninth Circuit, in the case of Madden v. McKenzie, 144 Fed. 64, 75 C. C. A. 222, seems to very clearly lay down the proper procedure in a case of this character, and appears to establish the rule by which this court should be guided in passing upon the question as to whether or not an action should be tried to a court sitting as a court of equity or should be transferred to the Jaw side of the court and tried to a jury. We quote from the opinion in said case:
“Under such, a statute [section 475 of the Alaska Code], if the facts pleaded present a ease of equitable cognizance, the cause will be heard upon the equity side of the court according to the procedure provided for the disposition of such a case, and, if the complaint is sustained, the plaintiff! will be given equitable relief. If, on the other hand, the facts alleged are such as to bring the case within the cognizance of a court of law, it will be tried as an action at law, and the right of the parties to a jury trial will be conserved. If a complaint be framed ostensibly as a bill in equity, praying for equitable relief, and yet is in its substance a complaint in an action at law, the remedy of the defendant is to move that it be dealt with and heard as an action at law.”
This in substance is what the defendants are now demanding in this case, but it will be seen from the quotation from [393]*393the above case that the issue is determined upon the allegations of the complaint. Defendants in their argument practically admit that the complaint in the case at bar is sufficient under section 475, but make the contention that said section is unconstitutional under the decision of Donahue v. Meister, supra, and Whitehead v. Shattuck, 138 U. S. 146, 11 Sup. Ct. 276, 34 L. Ed. 873, and further contend that, by reason of the fact that the defendant denies the possession of plaintiff, it changes the form of action from one in equity to one in law.
The Supreme Court of the state of Oregon in a number of decisions has sustained the validity of their section 500, which in substance is the same as our section 475, and even has gone further in that the court has held that plaintiff need not be in possession in order to maintain the action if the defendant is not in possession. Coolidge & McClaine v. Forward, 11 Or. 118, 2 Pac. 292; Thompson v. Woolf, 8 Or. 455.
In Goldsmith v. Gilliland (Circuit Court of Oregon) 22 Fed. 867, Judge Deady says:
“But in a suit - brought under section 500 aforesaid [Oregon Code, which is the same as our section 475], the plaintiff is not required to state the nature or circumstances of the defendant’s claim, or to deny knowledge thereof, but in this respect he is only bound to allege the making of such claim, and that it is wrongful, and call upon the defendant to set it forth in his answer, and submit its validity to the judgment and decision of the court. * * * Plaintiff may, in any case, avail himself of the statute.”
The reasoning in the case of Holland v. Challen, 110 U. S. 23, 3 Sup. Ct. 495, 28 L. Ed. 52, is very apt when considering cases under our Code. In this case the court quotes a Kentucky statute, which is very similar to ours; also the statute of Nebraska, which is very much broader than ours, as it authorizes a suit even to parties out of possession.
The Supreme Court of the United States has sustained the Oregon statute in the well-considered case of Stark v. Starr, 73 U. S. (6 Wall.) 409, 18 L. Ed. 925, where Judge Field, delivering the opinion of the court, says:
“This is a suit in equity to quiet the title of the plaintiff to certain parcels of land situated in the city of Portland, in the state [394]*394of Oregon. It is founded upon a statute of that state, which provides that ‘any person in possession of real property may maintain a suit in equity against another who claims an estate or interest therein adverse to him, for the purpose of determining such claim, estate, or interest.’ This statute confers a jurisdiction beyond that ordinarily exercised by courts of equity, to afford relief in the quieting of title and possession of real property. By the ordinary jurisdiction of those courts a suit would not lie for that purpose, unless the possession of the plaintiff had been previously disturbed by legal pro- • ceedings on the part of the defendant, and the right of the plaintiff had been sustained by successive judgments in his favor. The equity asserted in such cases had its origin in the prolonged litigation which the action of ejectment permitted. That action being founded upon a fictitious demise between fictitious parties, a recovery therein constituted no bar to a second similar action, or to any number of similar actions for the same premises. With slight changes in these fictions, a new action might be instituted and conducted as though no previous action had ever been commenced. Thus the party in possession, though successful in every case, might be harassed if not ruined by the continued litigation. To prevent such litigation, after one or more trials, and to secure peace to the party in possession, courts of equity interposed upon proper application and terminated the controversy. By the statute in question it is unnecessary, in order to obtain this interposition of equity, for the party in possession to delay his suit until that possession has been disturbed by legal proceedings, and judgment in those proceedings has passed in his favor. It is sufficient that a party out of possession claims an estate or interest in the property adverse to him.
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MURANE, District Judge.
The cause is now before the court upon the motions of the defendants for an order assigning this cause on the jury trial calendar and for fixing the date of the trial of said action, which raises the question whether said cause should be tried before the court as a suit in equity or before the court and jury as an action at law.
The complaint is evidently framed under section 475 of the Alaska Code, and plaintiff’s attorneys in argument contended that it is a suit in equity to quiet title and to determine adverse claims, while defendants contend in their argument and brief that they are entitled to a jury trial upon the question of possession and title, and that the case should be tried before a jury, and cites section 1, art. 7, of the amendment of the Constitution of the United States, which they contend entitles them to a jury trial in a cause of this nature. Counsel for de[392]*392fendants cite a number of cases in support of this contention, but rely chiefly upon the case of Carlson v. Sullivan, 146 Fed. 476, 77 C. C. A. 32, and the case of Donahue v. Meister, 88 Cal. 121, 25 Pac. 1096, 22 Am. St. Rep. 283.
The case of Carlson v. Sullivan was a suit in partition which went to the Circuit Court of Appeals, Ninth Circuit, from this division, but the complaint in that case shows that the plaintiff was not in possession, and that the defendants, who were in possession, were disputing the title of plaintiff. In the same volume is another case which went from this division, entitled Forderer v. Schmidt, 146 Fed. 480, 77 C. C. A. 36, where the Circuit Court of Appeals draws the distinction between a case where the plaintiff is out of possession and his title is disputed, and a case where the plaintiff is out of possession and whose title is not disputed. I do not think that either case is decisive of the question before the court on this motion.
The Circuit Court of Appeals, Ninth Circuit, in the case of Madden v. McKenzie, 144 Fed. 64, 75 C. C. A. 222, seems to very clearly lay down the proper procedure in a case of this character, and appears to establish the rule by which this court should be guided in passing upon the question as to whether or not an action should be tried to a court sitting as a court of equity or should be transferred to the Jaw side of the court and tried to a jury. We quote from the opinion in said case:
“Under such, a statute [section 475 of the Alaska Code], if the facts pleaded present a ease of equitable cognizance, the cause will be heard upon the equity side of the court according to the procedure provided for the disposition of such a case, and, if the complaint is sustained, the plaintiff! will be given equitable relief. If, on the other hand, the facts alleged are such as to bring the case within the cognizance of a court of law, it will be tried as an action at law, and the right of the parties to a jury trial will be conserved. If a complaint be framed ostensibly as a bill in equity, praying for equitable relief, and yet is in its substance a complaint in an action at law, the remedy of the defendant is to move that it be dealt with and heard as an action at law.”
This in substance is what the defendants are now demanding in this case, but it will be seen from the quotation from [393]*393the above case that the issue is determined upon the allegations of the complaint. Defendants in their argument practically admit that the complaint in the case at bar is sufficient under section 475, but make the contention that said section is unconstitutional under the decision of Donahue v. Meister, supra, and Whitehead v. Shattuck, 138 U. S. 146, 11 Sup. Ct. 276, 34 L. Ed. 873, and further contend that, by reason of the fact that the defendant denies the possession of plaintiff, it changes the form of action from one in equity to one in law.
The Supreme Court of the state of Oregon in a number of decisions has sustained the validity of their section 500, which in substance is the same as our section 475, and even has gone further in that the court has held that plaintiff need not be in possession in order to maintain the action if the defendant is not in possession. Coolidge & McClaine v. Forward, 11 Or. 118, 2 Pac. 292; Thompson v. Woolf, 8 Or. 455.
In Goldsmith v. Gilliland (Circuit Court of Oregon) 22 Fed. 867, Judge Deady says:
“But in a suit - brought under section 500 aforesaid [Oregon Code, which is the same as our section 475], the plaintiff is not required to state the nature or circumstances of the defendant’s claim, or to deny knowledge thereof, but in this respect he is only bound to allege the making of such claim, and that it is wrongful, and call upon the defendant to set it forth in his answer, and submit its validity to the judgment and decision of the court. * * * Plaintiff may, in any case, avail himself of the statute.”
The reasoning in the case of Holland v. Challen, 110 U. S. 23, 3 Sup. Ct. 495, 28 L. Ed. 52, is very apt when considering cases under our Code. In this case the court quotes a Kentucky statute, which is very similar to ours; also the statute of Nebraska, which is very much broader than ours, as it authorizes a suit even to parties out of possession.
The Supreme Court of the United States has sustained the Oregon statute in the well-considered case of Stark v. Starr, 73 U. S. (6 Wall.) 409, 18 L. Ed. 925, where Judge Field, delivering the opinion of the court, says:
“This is a suit in equity to quiet the title of the plaintiff to certain parcels of land situated in the city of Portland, in the state [394]*394of Oregon. It is founded upon a statute of that state, which provides that ‘any person in possession of real property may maintain a suit in equity against another who claims an estate or interest therein adverse to him, for the purpose of determining such claim, estate, or interest.’ This statute confers a jurisdiction beyond that ordinarily exercised by courts of equity, to afford relief in the quieting of title and possession of real property. By the ordinary jurisdiction of those courts a suit would not lie for that purpose, unless the possession of the plaintiff had been previously disturbed by legal pro- • ceedings on the part of the defendant, and the right of the plaintiff had been sustained by successive judgments in his favor. The equity asserted in such cases had its origin in the prolonged litigation which the action of ejectment permitted. That action being founded upon a fictitious demise between fictitious parties, a recovery therein constituted no bar to a second similar action, or to any number of similar actions for the same premises. With slight changes in these fictions, a new action might be instituted and conducted as though no previous action had ever been commenced. Thus the party in possession, though successful in every case, might be harassed if not ruined by the continued litigation. To prevent such litigation, after one or more trials, and to secure peace to the party in possession, courts of equity interposed upon proper application and terminated the controversy. By the statute in question it is unnecessary, in order to obtain this interposition of equity, for the party in possession to delay his suit until that possession has been disturbed by legal proceedings, and judgment in those proceedings has passed in his favor. It is sufficient that a party out of possession claims an estate or interest in the property adverse to him. He can then at once commence his suit, and require the nature and character of such adverse estate or interest to be set forth and subjected to judicial investigation and determination, and that the right of possession as between him and the claimant shall be forever quieted.”
The case of Wehrman v. Conklin, 155 U. S. 322, 15 Sup. Ct. 129, 39 L. Ed. 167, cites with approval the case of Holland v. Challen, supra, and goes extensively into the question of the jurisdiction of equity and its origin to quiet titles at common law, and also under the Codes of different states. This case alone would be decisive of both points raised by defendants, as it distinguishes the case of Whitehead v. Shattuck, relied upon by defendants, and shows that it is not applicable to the case at bar. This case was also followed by Judge Rodey in Hernandez v. J. Ochoa y Hermano, 4 Porto Rico Fed. Rep. 400, which is a very instructive decision.
In the case of Angus v. Craven, 132 Cal. 691, 64 Pac. 1091, the Supreme Court of California arrives at a different conclu[395]*395sion from that in Donahue v. Meister, supra, and in effect overrules it. This is a very well-considered case, and seems to be more in accord with the better authorities than the Donahue Case.
An examination of the California statute, which appears to be the same as the New Mexico statute, shows that they are both radically different from the Alaska Code in that they provide that a party may maintain an action to determine adverse claims without ■ designating what character of action, while our Code provides that a party in possession may maintain an action of an equitable nature.
The court has considered this case so far solely upon the allegations of the complaint and the denials in the answer, and has reached the conclusion that, even thus considered, the cause should be retained on the equity side of the court, but it will be observed that the affirmative defenses set up in defendants’ answers, or at least some of them, are purely equitable, and the defendants pray for equitable relief. Under such a state of the pleadings, the authorities seem to hold that, even if it should develop that the plaintiff was not in possession at the time of the commencement of the action, the defendants have submitted themselves to the jurisdiction of a court of equity, and the court, sitting as such, must determine' the whole controversy. State v. Blize, 37 Or. 408, 61 Pac. 735; O’Hara v. Parker, 27 Or. 172, 39 Pac. 1004; 32 Cyc. pp. 1338, 1367, and cases cited.
The rule seems to be that, if a defendant does not wish to submit himself to the jurisdiction of a court of equity, he must, before answering to the merits, have the jurisdictional facts determined either by demurrer or proper plea. .
Defendants’ motions are denied.