In the case of Patterson v. Winn, 11 Wheat. 380, 6 L. Ed. 500, Mr. Justice Thompson said:

"We may therefore assume as the settled doctrine of this court that if a patent is absolutely void upon its face, or the issuing thereof was without authority, or was prohibited by statute, or if the state had no title, it could be impeached collaterally in a court of law in an action of ejectment; but, in general, other objections and defects complained of must be put in issue in a regular course of pleading in a direct proceeding to avoid the patent."

And in the case of Smelting Co. v. Kemp, supra, Mr. Justice Field said:

"If the patent, according to the doctrine, be absolutely void on its face, it may be collaterally impeached in a court of law. It is seldom, however, that the recitals of a patent will nullify its granting clause, as, for instance, that the land which it purports to convey is reserved from sale. Of course, should such inconsistency appear, the grant would fail. Something more, however, than an apparent contradiction in its terms is meant, when we speak of a patent being void on its face. It is meant that the patent is seen to be invalid, either when read in the light of the existing law, or by reason of what the court must take judicial notice of; as, for instance, that the land is reserved by statute from sale, or otherwise appropriated, or that the patent is for an unauthorized amount, or is executed by officers who are not invested by law with the power to issue grants of portions of the public domain."

The same doctrine is laid down or recognized by the Court of Appeals of Kentucky. In the case of Bledsoe's Devisees v. Wells, 4 Bibb, 329, Judge Boyle said:

"It would seem, therefore, necessarily to result that a patent in consideråtion of a treasury warrant could not be legally granted for such land, and, if it had appeared upon the face of the patent in this case that it had issued for land within that tract of country, we would have had no doubt that it was void; but we are of opinion that parol evidence of a fact déĥors the patent was not admissible in this case for the purpose of avoiding or defeating the patent, for, although a patent, when it appears on its face to be illegal, may be considered void and treated as a nullity, yet, if it appear perfect on its face, it cannot be vacated by matter dehors the patent, but by scire facias or other regular mode of proceeding instituted for the purpose of vacating it."

In the case of Taylor v. Fletcher, 7 B. Mon. 80, Judge Ewing said:

"A patent, while it remains in force, and is not vacated or annulled by some direct mode of proceeding calling in question its validity, should not, in the general, be collaterally impeached or questioned, unless in the case where its own nullity or illegality appears on its face, in which case the evidence of its nullity is of as high grade as the evidence of the grant."

It will be noticed that Judge Ewing says that a patent cannot be collaterally attacked, unless void on its face, "in the general." This implies that there are cases where it can be collaterally attacked, even though its invalidity does not appear on its face. And Judge Ewing, further on in his opinion, states the cases where a patent can be collaterally attacked, though its invalidity does not so appear, as exceptions to the general rule. He says:

"There are two exceptions to the rule here laid down with respect to the impeachment of patents. The first is where the Legislature has declared that the patent shall be void if issued in contravention of a described state of

case. The second is where they have declared that the patent shall be deemed fraudulent if issued under similar circumstances."

Counsel for plaintiffs seem to think that these two cases are the only cases in which a patent can be attacked collaterally, whereas they are the only cases in which they can be attacked collaterally where the patent is not void on its face. Where that is the case, it can be so attacked, as well as in those two cases, thus making three contingencies in all in which a patent can be so attacked. And in the case of Frazier v. Frazier, 81 Ky. 138, Judge Hargis speaks of all three in the same connection. He says:

"According to the current of recognized authority, the validity of a patent cannot be inquired into, nor can a party travel behind it to show it to be void, in a collateral proceeding or issue, unless the patent is void upon its face, or has been issued in contravention of a state of case described by statute, and which the statute declares shall render such patents void, or under such circumstances as the statute declares to be fraudulent. The facts which bring the patent within the statutory denunciation may be shown by parol proof in a collateral proceeding, or the patent may be relied on to show its own invalidity appearing on its face. We know of no other mode of attacking a patent in a collateral proceeding."

But it is argued that defendants cannot so attack the patent_under which plaintiffs claim, because it does not appear that they have any interest in the land covered by the patent; and authorities are cited to the effect that a person not having an interest in land cannot attack a patent covering it directly. But this doctrine has no application here, where the patent is being asserted as against defendants. Plaintiffs are seeking relief herein against the defendants, and certainly are not entitled to any relief against them, if they are claiming under a patent void on its face, though defendants may have no interest whatever in the land.

In view of these considerations, therefore, we feel constrained to sustain the demurrers and overrule the exceptions, and orders will be entered accordingly.

Addition to Opinion of March 9, 1903.

(June 10, 1903.)

Since handing down the foregoing opinion our attention has been directed by a friend of the court to an act of the Legislature of Kentucky approved the 9th day of March, 1868 (1 Sess. Acts 1867–68, p. 70, c. 1162) which is in these words:

"An act to legalize the issual of grants for quantities of land greater than two hundred acres.

"Whereas, the provisions of the Revised Statutes of Kentucky upon the subject limit the quantity of land for which an order may be procured to two hundred acres; and whereas, in some instances, surveys have been made, founded on two or more of these county court orders, for quantities exceeding two hundred acres; and whereas, in a few instances, clerks of county courts have issued 'warrants' for quantities larger than two hundred acres, upon which surveys were made and filed in the land office, upon which the register, in absence of 'caveat' or other objections, issued grants; and whereas, doubts are entertained as to the legality of these grants; to remove which and grant said titles,

"Be it enacted by the General Assembly of the commonwealth of Kentucky:

"1. That all acts of the register of the land office, carrying into grants surveys filed in his office for quantities of land in excess of two hundred acres, be, and the same are hereby, declared legal and valid, unless the warrant was procured, the survey made, and carried into grant by surveyors, or their deputies, for their own use and benefit, in which case this act shall not apply.

"2. This act shall be in force from its passage."

This act is confirmatory of the construction we have placed upon the Revised Statutes, the same as the acts of March 9 and March 27, 1872, and for the reason given as to them. In view of this act, the case of West v. Chamberlain was correctly decided. The patent involved therein had been issued in 1855, and was therefore no doubt validated by said act. In view thereof, in connection with the acts of March 9 and March 27, 1872, no apprehension need be had of the position taken herein affecting to any great extent innocent purchasers of vacant lands taken up in the same way as those involved herein were. Said act of March 9, 1868, validates all patents for a greater quantity of vacant land issued prior to that date not within the exception therein stated. The act of March 9, 1872, validates. all surveys for greater quantities of such land then on file, or which might be filed within 60 days thereafter, in the registers' offices for the lands in the counties covered by it; and the act of March 27, 1872, authorizes the issuance of patents for lands theretofore or thereafter surveyed for any number of acres in the counties covered by it. And since the General Statutes went into force December 1, 1873, no patent has been issued for a greater number of acres than 200 acres, because said statute provided that one person could not acquire by separate patents even more than 200 acres. It follows, from this, that the number of innocent purchasers who could possibly be affected by this decision must be very limited. It is certain that plaintiffs herein are not innocent purchasers, because they claim as devisees of the original patentee. It is certain, further, that, if any such purchasers are affected, they were not misled by anything decided by the courts having jurisdiction of the matter, as has been heretofore shown. If misled at all, it must have been by an unwarranted interpretation of the decision of Register v. Reid by legal counsel whose advice may have been sought in the matter, and the courts should not be induced thereby to do that which amounts to a repeal or nullification of an act of the Legislature. Besides, it is never advisable to accept mere statements as to the effect of a decision in determining what it should be, for the reason, if none other, the matter so stated not having been investigated, the court is liable to be misled. And this case affords a good illustration of such danger.

JONES et al. v. MUTUAL FIDELITY CO.

(Circuit Court, D. Delaware. May 26, 1903.)
No. 230.

1. CORPORATIONS-INSOLVENCY-APPOINTMENT OF RECEIVER.

The Delaware statute of March 25, 1891 (19 Laws Del. c. 181), authorizing the Chancellor on the application of creditors or stockholders of insolvent corporations to appoint receivers to take charge of the property, business and affairs of such corporations, with power to collect debts, claims and property due and belonging to them, and to administer their affairs, such receivership to be continued so long as the Chancellor shall think necessary, creates a purely equitable right and remedy which, other jurisdictional conditions existing, may be enforced by a bill filed on the equity side of a circuit court of the United States by unsecured creditors who have not reduced their claims to judgment, as well as by stockholders or judgment creditors.

2. COURTS-JURISDICTIONAL AMOUNT.

The jurisdictional amount exists where the assets of an insolvent corporation proceeded against under the statute exceed, exclusive of interest and costs, the sum or value of $2,000, and the claims of the creditors joined in the bill in the aggregate exceed such jurisdictional amount, although no creditor has a claim or claims equal to that amount; and, further, the jurisdictional amount exists where the assets of such corporation exceed, exclusive of interest and costs, the sum or value of $2,000, although the claims of the creditors joined in the bill are not in the aggregate equal to that amount.

8. CORPORATIONS-INSOLVENCY-RECEIVEr.

In the absence of statutory authority, the complainants, as general unsecured creditors at law, who have not reduced their claims to judgment, could not, solely on the ground of insolvency, successfully maintain their bill against the defendant to deprive it of the possession of its assets and secure their administration and distribution.

4. SAME.

The Delaware statute in conferring on the Chancellor authority, solely on the ground of insolvency, to appoint receivers for insolvent corporations and take possession of and fully and finally distribute their assets, provided a purely equitable procedure for the enforcement of equitable rights on the part of creditors and stockholders.

5. SAME RIGHTS OF UNSECURED CREDITORS.

Under the settled construction of the statute its provisions apply as well to general unsecured creditors as to creditors whose claims have been reduced to judgment or otherwise judicially ascertained or are admitted; and in the absence of such a statute neither the court of chancery nor any other court in Delaware would at the instance of creditors have authority, solely on the ground of insolvency, to appoint a receiver to take charge of the affairs and collect and make final distribution of the assets of a Delaware corporation.

6. FEDERAL COURTS-JURISDICTION.

While a state law cannot confer jurisdiction on any federal court, it may create a substantial right which the proper federal court, otherwise possessing jurisdiction, may enforce by a proper remedy whether in equity, in admiralty, or at law.

7. SAME EQUITY PRACTICE.

There is a fundamental distinction growing out of the federal constitution and legislation between legal and equitable procedure. The sev

¶2. Jurisdiction of Circuit Courts as determined by the amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Tennent Stribling Shoe Co. v. Roper, 36 C. C. A. 459.

13. See Corporations, vol. 12, Cent. Dig. § 2220.

enth amendment to the Constitution provides that "in suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." Section 16 of the Judiciary Act of September 24, 1789 [1 Stat. 82], reproduced in section 723 of the Revised Statutes [U. S. Comp. St. 1901, p. 583], enacts that "suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate and complete remedy may be had at law." These constitutional and statutory provisions control the procedure of the federal courts; and the propriety of resorting in any given case to the law side of the court, on the one hand, or, on the other, to the equity side, must be determined with reference to them. 8. SAME JURISDICTION AT LAW AND IN EQUITY.

So marked is the distinction between the jurisdiction of the courts of the United States in equity and at law with respect to procedure, that the blending together in one suit in a federal court of essentially legal and equitable remedies cannot be authorized or justified by any state statute or practice on the subject; but, though no state legislation is competent to extend or restrict the jurisdiction of the federal courts, a state may create an enlargement of rights and remedies, whether equitable or legal, which may be enforced or pursued in a federal court, in the exercise of that branch of its jurisdiction which is appropriate to the case, and where a state statute creates a right and a remedy for its protection or enforcement, and such remedy substantially conforms to the procedure in chancery, it, in the absence of a plain, adequate and complete remedy at law, may be pursued on the equity side of a federal court. Where the direct object of a suit is the judicial ascertainment of the existence and amount of a pecuniary legal demand and the enforcement of its payment by the process of the court in which the suit is brought, the proceeding is essentially an action at law and in a federal court must be so treated, regardless of state legislation. Nor is the distinctively legal nature of such a remedy lost merely because, owing to the circumstances of a given case, the purpose of the action may fail of accomplishment. "The want of a remedy and the inability to obtain the fruits of a remedy are quite distinct."

9. EQUITY-JURISDICTION.

If a remedy is essentially legal and in its nature fitted or adapted, in the absence of obstacles, which may or may not exist, to attain the object in view, then, whatever equitable procedure may in particular cases be resorted to in aid of the legal remedy, it cannot wholly displace it. The jurisdiction of chancery to reach equitable or legal assets of a defendant, whether a corporation or a natural person, in aid of a legal remedy for a money demand is indisputable. But such an exercise of jurisdiction is not by way of substitution for, but only in aid of, the legal remedy, and it can be resorted to only after the plaintiff has exhausted such remedy. This necessitates the obtaining of judgment for the demand, and, usually, the issuance of execution and its return unsatisfied.

10. SAME REMEDY AT LAW.

The fact that equitable relief can be granted in aid of a legal remedy only after the plaintiff has exhausted such remedy precludes the possibility of any clash or conflict between legal jurisdiction and equitable jurisdiction or of any blending of legal and equitable remedies in the same suit.

11. SAME.

There is a clear distinction between the exercise of equitable jurisdiction in aid of a legal remedy for the collection of a pecuniary legal demand, and the exercise of equitable jurisdiction in enforcing a purely equitable right by a purely equitable remedy, created by a valid state statute, not in aid of any legal remedy, but wholly independently thereof, though the existence of such equitable right and remedy may presuppose and be dependent on the existence of such pecuniary legal demand.