The opinion of the court was delivered by
Sergeant, J.This is a bill for discovery of deeds and other muniments of title relating to lands, &c., to enable the plaintiff to inspect them, and to compel the delivery over of the deeds and other papers to the complainant; to which there is a demurrer. The question is, whether the bill is sustainable on either of the points of view it presents. As a bill for relief by ordering the defendant to deliver up the deeds and papers, it is not sustainable, because the complainant has not placed himself by his bill in the position of one entitled to relief of this kind. To have these deeds and papers delivered over to him, the plaintiff must show that he has a legal title to the deeds and papers as against the defendant. But this he *145does not do. JVon constat but that the defendant has a better title to them than the complainant. The deeds and papers belong ordinarily to him who is in possession of the land; and if the defendant is in possession, it would be asking us to take them from him who has the right, to give them to another. In Crow v. Tyrrell, (3 Madd. Ch. Rep. 182,) the rule is thus stated. “ The possession of title deeds is incidental to the possession of the estate, but cannot be recovered with the estate at law. This court, therefore, will give the title deeds to him who has at law recovered the possession of the estate ; but its jurisdiction in this respect is confined to the possession of the estate. If, then, the plaintiff recover the possession of the estate at law, then, and not till then, he may come here for the possession of the title deeds.” To the same effect is Armitage v. Wadsworth, (1 Madd. Ch. Rep. 193.)
The other prayer, that the defendant mayplace the deeds &c. in the hands of the prothonotary for inspection, is incidental to the discovery. Crow v. Tyrrell, (2 Madd. Ch. Rep. 408.) If the discovery can be had, this may follow, but without the discovery it cannot be had.
It is plain, however, that the great object of the plaintiff in this bill, is to obtain a discovery of certain deeds and papers relating to the estate of the assignor: and if this court had possessed jurisdiction when this bill was filed, it is possible that the plaintiff has an equity to compel such discovery, provided he presented his case with the proper averments. But the jurisdiction of this court, when the present bill was filed, depended entirely on the act of the 16th of June, 1836, sec. 13, by which the jurisdiction of this court, and of_ the Common Pleas, is confined to “ the discovery of facts material to~ a just determination of issues and other questions arising or depending in the said courts.” Now this bill does not aver that any issue is depending between the plaintiff and the defendant, or any person, in this court, or in airy ¿ourt; or that any question has arisen or is depending therein. It follows of course, that the court had no jurisdiction of this bill as a bill of discovery, or of any thing merely incidental thereto.
By the act of the 13th of June, 1840, the equity jurisdiction of the Supreme Court and Court of Common Pleas, within the city and county of Philadelphia, is extended to all cases arising in the said city and county, over which the courts of chancery entertain jurisdiction on the grounds of fraud, accident, mistake or account. This act may perhaps afford a full remedy in cases of discovery: but it is certain that under the prior law it was restricted to particular cases.
It has not seemed necessary to decide what the rule is as to a demurrer to a bill seeking discovery and relief: and whether the English rule applies, that it is sufficient to show that the plaintiff is not entitled to the relief which he prays; because in the present case *146we think the plaintiff has not made out a case either of relief or discovery.
Demurer allowed.