Mr. Justice Shepard
delivered the opinion of the Court:
The argument has taken a very wide range which, in our view of the manner in which the case must be disposed of for the present at least, there is no occasion to follow.
Chief among the questions that have been discussed and will be passed upon are the following:
1. To what extent, if any, the tax title under which the appellant claims may be affected by alleged irregularities in the proceedings culminating therein? 2. "What effect, if any, have either the decree rendered in No. 14,468, or the earlier decree in the present proceedings, on the first intervention of appellant, as res adjudicaba in respect of his title as against the appellees?
The titles under which the appellant and the appellees, respectively, claim are strict legal titles, and there is nothing in the allegations of the bill that can make them cognizable in equity. The conflict between them can only be adjudicated in an action at law, wherein may be completely determined, not only the question of the validity of the tax sale and title thereunder, but also the effect of the former adjudications, whatever that may be.
It is not alleged in the bill that the complainants were in the actual possession of the lands, or had even a constructive possession; and it is not yet a settled question, in this District, that, without actual possession the court has jurisdiction to entertain a bill for partition at all. Williams v. Paine, 169 U. S. 55, 80; S. C., 7 App. D. C. 116, 131.
However, the difficulty of the situation extends far beyond this. The first bill filed — No. 14,468—not only failed to allege actual possession, or an undisputed title in those among whom partition was sought, but expressly averred an adverse legal title in the appellant John E. Holler, under a tax sale which it sought to annul for irregularities.
The decree sustaining the demurrer of Holler to that bill does not show the ground of dismissal. But considering the first ground of the demurrer it is not unreasonable to [545]*545suppose that the court regarded the settlement of that title, by action at law, as a necessary pre-requisite to the partition sought as between the remaining parties to the suit. In the light of the facts as they then appeared, the dismissal could be upheld on that ground, as we shall see later.
Regarding the bill, in so far as it was aimed at the defendant Roller, as one to remove cloud from title, the dismissal might be upheld upon the ground of unexplained laches, and the failure to allege possession in the complainants. Looking at the double purpose of the bill — partition as regards one set of defendants, and removal of cloud from title as regards another wholly disconnected from them — it was clearly bad for multifariousness. Fields v. Gwynn, 19 App. D. C. 99.
But passing to the bill with which the present suit was begun — Roller, as we have seen, was not' made a party defendant, but came by petition in intervention and again set up his legal title and possession thereunder. No attempt was made to controvert his proof of actual possession under claim of a legal title which has been heretofore referred to. Upon this pleading and proof, the bill was again dismissed as to Roller, the decree reciting as ground therefor that “ the complainants are barred by their own laches from any equitable relief against said defendant.”
Here again, treating the supplemental bill in reply to Roller’s answer as one to remove cloud from title, the dismissal was clearly right.
The decree, however, should have gone farther, and that part of it retaining the bill as between the remaining parties, for partition, should have recited that it was to be retained, with suspension of further proceedings, for some_ reasonable time within which the complainants might establish their title at law.
“"While the jurisdiction of a court of equity to decree partition, or sale for partition, is undoubted in cases where"" there is no serious question of the legal title as between the parties, it is equally well settled that the court does not [546]*546sustain a bill for partition unless tbe legal title be clear; and where tbe legal title is disputed, tbe court will retain the bill to give tbe plaintiff an opportunity to establish bis title at law. This is tbe well-established practice. Wilkin v. Wilkin, 1 Johns. Ch. 111; Phelps v. Green, 3 Johns. Ch. 302, 305; Coxe v. Smith, 4 Johns. Ch. 271, 276.” Mudd v. Grinder, 1 App. D. C. 418, 419, 420; Walker v. Lyon, 6 App. D. C. 484; Williams v. Paine, 7 App. D. C. 116, 131; Smith v. Butler, 15 App. D. C. 345, 353, 355. See also Moore v. Shannon, 6 Mackey, 157; Agar v. Fairfax, 2 L. C. Eq. (4th ed.), notes, p. 900 et seq.; 3 Pom. Eq. Jur., Sec. 1388; 17 Am. & Eng. Encyc. of Law, p. 709.
In Smith v. Butler, supra, whilst maintaining tbe general doctrine above stated, it was also held that tbe mere averment of an adverse title by defendant in a partition suit was not sufficient of itself to require suspension of tbe proceedings; but that it was within tbe power of tbe court, if not its duty, to ascertain whether in fact there exists an outstanding legal title reasonably sufficient on its face to constitute a ground of defense in an action of ejectment. That condition was unquestionably fulfilled in tbe case at bar by proof stronger even than tbe allegations of tbe intervenor’s answer.
It is no doubt largely tbe fault of tbe appellant that tbe decree did not take tbe form indicated above as correct. He apparently made no such request or suggestion; but then, as now, sought to have bis own title established as against •that of tbe complainants in tbe bill. Notwithstanding the proof of possession for a term of years under tbe claim of a legal title by tbe intervenor, be bad no sooner passed out of tbe case under tbe decree mentioned, than tbe complainants obtained tbe order of partition that was speedily followed by that for sale and distribution of its proceeds. Nearly five years later, when tbe trustee for tbe first time advertised tbe sale, tbe intervenor again appeared by petition alleging tbe validity of bis title as finally established by tbe former adjudications in bis favor, and, among other things, prayed that all orders and decrees made in tbe said [547]*547cause after dismissing Mm therefrom on May 5, 1896, be vacated.
Whether, under the conditions stated, the court had jurisdiction to pass those orders at all, or, if so, whether they should not now be vacated, are questions that we shall not undertake to answer. The first presents a serious question that was not noticed on the argument, and the second is of no practical importance.
Its attention having been again called to the condition of the title, the proper course to pursue was to suspend all proceedings and give the complainants reasonable time to establish their title at law if requested; or else to dismiss their bill without prejudice, leaving all parties to pursue such remedies for the protection of their interests as they might be advised.
One other question remains to be considered.
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Mr. Justice Shepard
delivered the opinion of the Court:
The argument has taken a very wide range which, in our view of the manner in which the case must be disposed of for the present at least, there is no occasion to follow.
Chief among the questions that have been discussed and will be passed upon are the following:
1. To what extent, if any, the tax title under which the appellant claims may be affected by alleged irregularities in the proceedings culminating therein? 2. "What effect, if any, have either the decree rendered in No. 14,468, or the earlier decree in the present proceedings, on the first intervention of appellant, as res adjudicaba in respect of his title as against the appellees?
The titles under which the appellant and the appellees, respectively, claim are strict legal titles, and there is nothing in the allegations of the bill that can make them cognizable in equity. The conflict between them can only be adjudicated in an action at law, wherein may be completely determined, not only the question of the validity of the tax sale and title thereunder, but also the effect of the former adjudications, whatever that may be.
It is not alleged in the bill that the complainants were in the actual possession of the lands, or had even a constructive possession; and it is not yet a settled question, in this District, that, without actual possession the court has jurisdiction to entertain a bill for partition at all. Williams v. Paine, 169 U. S. 55, 80; S. C., 7 App. D. C. 116, 131.
However, the difficulty of the situation extends far beyond this. The first bill filed — No. 14,468—not only failed to allege actual possession, or an undisputed title in those among whom partition was sought, but expressly averred an adverse legal title in the appellant John E. Holler, under a tax sale which it sought to annul for irregularities.
The decree sustaining the demurrer of Holler to that bill does not show the ground of dismissal. But considering the first ground of the demurrer it is not unreasonable to [545]*545suppose that the court regarded the settlement of that title, by action at law, as a necessary pre-requisite to the partition sought as between the remaining parties to the suit. In the light of the facts as they then appeared, the dismissal could be upheld on that ground, as we shall see later.
Regarding the bill, in so far as it was aimed at the defendant Roller, as one to remove cloud from title, the dismissal might be upheld upon the ground of unexplained laches, and the failure to allege possession in the complainants. Looking at the double purpose of the bill — partition as regards one set of defendants, and removal of cloud from title as regards another wholly disconnected from them — it was clearly bad for multifariousness. Fields v. Gwynn, 19 App. D. C. 99.
But passing to the bill with which the present suit was begun — Roller, as we have seen, was not' made a party defendant, but came by petition in intervention and again set up his legal title and possession thereunder. No attempt was made to controvert his proof of actual possession under claim of a legal title which has been heretofore referred to. Upon this pleading and proof, the bill was again dismissed as to Roller, the decree reciting as ground therefor that “ the complainants are barred by their own laches from any equitable relief against said defendant.”
Here again, treating the supplemental bill in reply to Roller’s answer as one to remove cloud from title, the dismissal was clearly right.
The decree, however, should have gone farther, and that part of it retaining the bill as between the remaining parties, for partition, should have recited that it was to be retained, with suspension of further proceedings, for some_ reasonable time within which the complainants might establish their title at law.
“"While the jurisdiction of a court of equity to decree partition, or sale for partition, is undoubted in cases where"" there is no serious question of the legal title as between the parties, it is equally well settled that the court does not [546]*546sustain a bill for partition unless tbe legal title be clear; and where tbe legal title is disputed, tbe court will retain the bill to give tbe plaintiff an opportunity to establish bis title at law. This is tbe well-established practice. Wilkin v. Wilkin, 1 Johns. Ch. 111; Phelps v. Green, 3 Johns. Ch. 302, 305; Coxe v. Smith, 4 Johns. Ch. 271, 276.” Mudd v. Grinder, 1 App. D. C. 418, 419, 420; Walker v. Lyon, 6 App. D. C. 484; Williams v. Paine, 7 App. D. C. 116, 131; Smith v. Butler, 15 App. D. C. 345, 353, 355. See also Moore v. Shannon, 6 Mackey, 157; Agar v. Fairfax, 2 L. C. Eq. (4th ed.), notes, p. 900 et seq.; 3 Pom. Eq. Jur., Sec. 1388; 17 Am. & Eng. Encyc. of Law, p. 709.
In Smith v. Butler, supra, whilst maintaining tbe general doctrine above stated, it was also held that tbe mere averment of an adverse title by defendant in a partition suit was not sufficient of itself to require suspension of tbe proceedings; but that it was within tbe power of tbe court, if not its duty, to ascertain whether in fact there exists an outstanding legal title reasonably sufficient on its face to constitute a ground of defense in an action of ejectment. That condition was unquestionably fulfilled in tbe case at bar by proof stronger even than tbe allegations of tbe intervenor’s answer.
It is no doubt largely tbe fault of tbe appellant that tbe decree did not take tbe form indicated above as correct. He apparently made no such request or suggestion; but then, as now, sought to have bis own title established as against •that of tbe complainants in tbe bill. Notwithstanding the proof of possession for a term of years under tbe claim of a legal title by tbe intervenor, be bad no sooner passed out of tbe case under tbe decree mentioned, than tbe complainants obtained tbe order of partition that was speedily followed by that for sale and distribution of its proceeds. Nearly five years later, when tbe trustee for tbe first time advertised tbe sale, tbe intervenor again appeared by petition alleging tbe validity of bis title as finally established by tbe former adjudications in bis favor, and, among other things, prayed that all orders and decrees made in tbe said [547]*547cause after dismissing Mm therefrom on May 5, 1896, be vacated.
Whether, under the conditions stated, the court had jurisdiction to pass those orders at all, or, if so, whether they should not now be vacated, are questions that we shall not undertake to answer. The first presents a serious question that was not noticed on the argument, and the second is of no practical importance.
Its attention having been again called to the condition of the title, the proper course to pursue was to suspend all proceedings and give the complainants reasonable time to establish their title at law if requested; or else to dismiss their bill without prejudice, leaving all parties to pursue such remedies for the protection of their interests as they might be advised.
One other question remains to be considered. Assuming that the court had jurisdiction to render the decrees for partition and sale, and conceding for the purposes of the argument that they may have been erroneous, it is contended, on behalf of the appellees, that, together, they constitute a final decree in the cause, which, after the term, passed beyond the power of the court to vacate. This contention is not well founded for reasons plainly stated in the following decisions of the Supreme Court of the United States: Perkins v. Fourniquet, 6 How. 206, 208; Fourniquet v. Perkins, 16 How. 82, 86; Iowa v. Illinois, 151 U. S. 238, 241.
The decision of tMs court, relied on by the appellees—. Schwarz v. Costello, 11 App. D. C. 553 — presents an entirely different state of facts, and does not conflict, in the slightest degree, with the cases above cited.
For the reasons given, we are of the opinion that the decree appealed from should be reversed with costs, and the cause should be remanded for further proceedings not inconsistent with tMs opimon. It is so ordered. Reversed.
A motion for a rehearing was filed April 15, 1902, on behalf of the appellees, by Mr. Henry E. Davis, Mr. Leo [548]*548Simmons, Messrs. Hamilton & Colbert, and Mr. John Rich out.
In support of their contention that the decree of the lower court, passed June 30, 1896, was a final decree and therefore not appealable, they cited the following cases: Washington, etc., Company v. Mayor, 7 Wall. 575; Dean v. Nelson, 7 Wall. 342; Bank of Lewisburg v. Sheffey, 140 U. S. 445; Willard v. Willard, 145 U. S. 116; St. Louis, etc., Co. v. Southern Express Co., 108 U. S. 24; Winthrop Co. v. Meeker, 109 U. S. 180; and Ex parte Noughton, 108 U. S. 237.
The motion for a rehearing was denied on May 6, 1902, Mr. Justice Shepard delivering the opinion of the Court:
■ Accompanying the motion for rehearing is a stipulation of the parties with an exhibit supplying an omission of the record upon which this case was heard and determined.
As both parties have agreed that the omission was inadvertent and seem to regard the additional matter as material to all the interests involved, it has been accepted and made a part of the record for purposes of consideration and further appeal if taken. We must add, however, that the practice of suggesting defects in the transcript of the proceedings below, or in the printed record for hearing in this court, after the case shall have been decided, is not to be considered as approved by the action now taken.
It appears from this stipulation that, on May 21, 1896, John E. Roller entered an appeal from the decrees that had been entered in the cause, that he failed to perfect his appeal, and that the same was formally entered in the court below on October. 18, 1898, as dismissed for want of prosecution.
The application to the clerk to enter the notice of appeal, does not specify what decrees he appealed from; but it is assumed that he meant to appeal from the two decrees that had then been entered, namely, on May 5, 1896, sustaining his demurrer and dismissing the bill as to him, and on May [549]*5496, ordering partition between the remaining parties. This action was immaterial as well as ineffectual.
Roller could not be heard on appeal from a decree in his own favor, sustaining his demurrer and dismissing the bill as to him. As a matter of fact, he relied upon this decree as one of the grounds of his second intervention, and has relied upon it throughout the hearing on appeal, as being a final adjudication of the title in his favor as against the claims of the appellees.
He was out of the case when the second decree was passed, and remained a stranger to the record until his re-entry by petition in intervention on July' 26, 1901.
Whatever opinion Roller may then have had, or may now have of the nature and effect of the decree sustaining his demurrer, as indicated by the persistence of his argument throughout, is immaterial. His contentions founded thereon, as well as on the decree in the first of the cases — No. 14,468 ■— were passed by for reasons that have been given in the opinion heretofore delivered, and which require no further elaboration.
That the main question upon which the case was made to turn in the opinion, was not argued on the hearing is due to the persistence of the appellant, Roller, in his reliance upon the decree as a final and complete adjudication of title in his favor. It is true that he made the point as one of thé grounds of his demurrer to the bill as filed in No. 14,468, but it was thereafter abandoned in favor of the preferred contention. It was not to be expected that the appellees would themselves raise the question. Rut it was apparent on the face of the record and, being jurisdictional in its nature, forced itself into consideration.
That, under the conditions presented by the pleadings and evidence at the time, the decree of partition was, at least, premature, is virtually conceded by the appellees. They do not deny the doctrine of the opinion, but now, as at the hearing, their contention is that the decree, whether erroneous or not, became a finality on the expiration of the term at which it was rendered. And it is apparent that [550]*550tbe addition sought to be made to the record is for the purpose of strengthening the foundations of that contention.
The question whether that decree was final in the sense that it passed beyond the power of the court rendering it to recall after the expiration of the term, was argued on the hearing and determined after full consideration and examination of the authorities bearing upon it.
We have found nothing in the argument now before us to require a change of the views expressed in our former opinion.
The additional decisions cited do not determine the point. They involve the finality of different decrees, as regards the rights of appeal therefrom, and are reviewed in a later case (McGourky v. Railroad Co., 146 U. S. 536), which was carefully examined before reaching our former conclusion.
The motion for rehearing is denied with costs.