(specially concurring). "While I concur fully in the opinion written by Justice Ray-nolds, this case is of such vital importance to the owners of land grants within this state that I feel that it is but fair to them that I should set forth my con1 elusions, formed after a careful and painstaking research of the authorities, as to the right of a party to proceed by a suit in equity to quiet his tile to real estate against a defendant in posession of the real estate in controversy. In the present case the matter was first raised by a demurrer to the complaint. The demurrer was probably properly overruled at the time the ruling was made thereon. The complaint was in the ordinary form of a suit to quiet title, save that it alleged that the defendant was in possession of the real estate and demanded possession. The ruling on the demurrer could probably be sustained on the theory that in this state, under section. 4067, Code 1915, there is but one form of civil action, and the plaintiff may unite in the same complaint several causes of action, both legal and equitable. Kingston v. Walters, 14 N. M. 368, 93 Pac. 700. In that case the court said:
“In other words, under the reform system of pleadings which our Legislature has adopted, litigants are given the relief which the facts in the pleadings show them to be entitled to in one action, whether the relief is equitable, or legal, or both.”
The complaint in this case stated a good cause of action in ejectment, and, treated as such, was sufficient to have withstood the demurrer. I do not, however, attach any importance to the fact that the complaint, thus construed, was sufficient to withstand the demurrer, because appellee (plaintiff below) later on and before trial ¡stated in open court that he did not stand upon his right to possession of the premises; that the purpose of the action was to simply quiet his title to the real estate; that he waived any right to possession in the present action, and stood solely upon his demand for a right to equitable relief. Appellants (defendants below) demanded a jury trial at every stage of the case where such demand was proper, and this was refused by the court under the viewr that appellee was correct in his construction of the effect of the provisions of the Code relative to-suits to quiet title. So that after all the controlling question in the case is as to the effect to be given sections 4387 and 4394, Code 1915.
The first section referred to is common to several of the states, and its intent is that any person owning real property, 'whether they are in possession or not, in which any other person claims an adverse title or interest, may bring an action against such person to determine the adverse claim and to quiet the plaintiff’s title. “It extends to cases in which the plaintiff is out of possession and the defendant is in possession, and in which, at common law, the plaintiff might have maintained ejectment.” Ely v. New Mexico, etc., R. R. Co., 129 U. S. 291, 9 Sup. Ct. 293, 32 L. Ed. 688. In the case just quoted the Supreme Court of the United States considered a similar statute enacted by the Legislature of the territory of Arizona. So far as I know, the courts all accept this view of similar statutes in all eases where the question has arisen.
Section 4394 reads as follows:
“The action contemplated by this article shall be conducted as other actions, by equitable proceedings under the rules of chancery.”
This section, so far as I have been able to discover, is found only in Iowa, which state likewise has the
first section referred to. The Supreme Court of Iowa, in the case of Lees v. Whetmore, 58 Iowa, 170, 12 N. W. 238, held that under this statute a party out of possession of real property could maintain an action in equity to quiet title thereto against the person m possession, and might in such case include a prayer to recover possession, but the effect of the statute as a denial of the right to trial by jury was not discussed by the court. There is also a Mississippi Case, Wofford v. Bailey, 57 Miss. 239, which seemingly would uphold the validity of such a statute upon the theory that the party may quiet his title by equitable proceedings against a party in possession, and later bring an action at law in ejectment for the recovery of possession of the property. Neither court, however, gives any reason for the conclusion, and the writer of the opinion in each ease was apparently satisfied with the simple declaration that such was the law. I am not familiar with the constitutional provisions of these two states relative to the right of trial by jury, but, if their provisions were similar to our own, these cases would have no persuasive influence, because no consideration was given to the question involved.
The two sections of our statute involved here were originally enacted by the Legislature in 1884 (Laws 1884, c. 6, §§ 1 and 4). The sections were re-enacted as subsections 273 and 276, c. 107, Laws 1907, and carried forward into the Code of 1915. The Code provisions on ejectment are set forth in the opinion written by Justice Baynolds, and need not be repeated here. Under this statute, while a plaintiff is not required to set up his title and may content himself by a simple allegation that he Avas on some day named in the complaint entitled to the possession of the premises, describing them, and that defendant on said day unlaAvfully Avithheld from the plaintiff possession, he may do so. In other Avords, in an action in ejectment, the parties may or may not at their election, under our statute, litigate the question of title, and the judgment in the ejectment suit under our statute, unlike the common-law ejectment, would be res adjudicata as to the question actually litigated. If the parties chose only to litigate the rig-ht to possession, the judgment would be res adjudicata only as to that question on the date named.
If, however, they elected to adjudicate both title and right of possession, the judgment would be final as to both. Hence, under our statute the plaintiff máy adjudicate the question of title in an action in ejectment. In ejectment, of course, the parties at common law were entitled to a trial by jury.
The state Constitution (article 2, § 12) provides:
“The right of trial by jury, as it has heretofore existed, shall be secured to all and remain inviolate.”
This section operates to secure to parties litigant the right of trial by jury as such right existed in the territory at the time immediately prior to the adoption of the Constitution. We are therefore required to determine from congressional legislation the extent of such right. By the act of April 7, 1874 (18 Stat. 27, 9 Fed. Stat. Ann. p. 572), Congress, legislating for all the territories, declared that no party “shall be deprived of the right of trial by jury in cases cognizable at common law,” and in passing upon the effect of this statute the Supreme Court of the United States, in the case of Walker v. So. Pac. By. Co., 165 U. S. 595, 17 Sup. Ct. 421, 41 L. Ed. 837, held that its effect was to secure all the rights of trial by jury as they existed at common law in all such territories. Under this act the validity of territorial legislation providing for a join-der of causes of action at law and in equity in the same complaint, all triable by the same court, was validated and approved by Congress. But, while doing so, and thus placing the territories in the same position as states which had adopted the Code system and’had abolished the distinction between actions at law and in equity, Congress was careful to preserve to litigants in territorial courts the right of trial by jury as such right existed at common law.
It requires no argument to demonstrate that any territorial statute which runs counter to this congressional legislation would be invalid and of no force and effect. Section 1851, B. S. U. S. 1878 (U. S. Comp. St. § 3438). Consequently, if a party at common law in possession of real estate was entitled to a trial by jury in an action involving his title and right to possession of the property, he would be so entitled under territorial government, notwithstanding a statute authorizing a suit to quiet title against a person in possession by one out of possession and making the cause triable as a chancery case. Under the territorial government, of course, decisions of the Supreme Court of the United States were controlling. Therefore, in determining the question presented, recourse should be had to the decisions of that court. A few general observations might profitably be made before passing to a consideration of the decisions of the Supreme Court of the United States.
Equity jurisdiction of the chancery courts of England extend to two distinct kinds of bills of peace; the one brought for the purpose of establishing a general right between a single party and numerous persons claiming distinct and individual interests, and the other for the purpose of quieting a plaintiff’s title to land against a single adverse claimant.
“In the first class the original jurisdiction to maintain ‘bills of peace’ or ‘bills quia timet,’ properly so called, will only be exercised where the claims of the numerous individuals have some community of interest in the subject-matter, or arise from a common title; but the jurisdiction has been enlarged so as to entertain analogous suits where the community of interest is in respect merely to the questions involved or the kind of relief demanded. In the second class the suit can be maintained by a party in possession against a single defendant ineffectually seeking to establish a legal title by repeated actions of ejectment. It is here necessary that the title of the complainant should be established by at least one successful trial at law before equity will entertain jurisdiction.” Pom. Eq. Jur. p. 3304.
It is fundamental that a suit in equity will not be sustained in any ease where a plain, adequate, and complete remedy may be had at law. This rule was enacted into a statute by Congress (Judiciary Act of 1789, 1 Stat. 82, c. 20, §16 [U. S. Comp. St. §1244]), but the Supreme Court of the United States in numerous cases has held that this statute was merely declaratory, and made no alteration whatever in the rules of equity on the subject of legal remedies, and was only expressive of the law which has governed proceedings in equity ever since their adoption in the courts of England. Whitehead v. Shattuek, 138 U. S. 146, 11 Sup. Ct. 276, 34 L. Ed. 873.
In the case of Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. 495, 28 L. Ed. 52, the Supreme Court of the United States had occasion to consider a statute of Nebraska relative to suits to quiet title. The statute there, as does ours, authorized the maintenance of such an action by plaintiff, whether in or out of possession against a defendant, whether in or out of possession. In that case the bill of complaint alleged that neither party was in possession; that the land was wild and unoccupied. The court sustained the right to sue in such a ease in the Circuit Court of the United States in equity upon the theory that the statute enlarged the equity jurisdiction of the courts and did not intrench upon the right of either party to a trial by jury where defendant was not in possession. In the case will.be found an exhaustive and able discussion of the bill of peace in the chancery courts of England and showing that there, in order to maintain such a suit, the plaintiff was always required to be in possession. But the court further shows that there is no invasion of any common-law right to trial by jury by reason of the enlargement of the jurisdiction of equity to entertain suits to quiet title where neither party is in possession.
Unlike the Code provision found in many of the states, the forms of action in civil cases are not abolished in the federal courts, and the jurisdiction of the federal courts in equity is indentical with the jurisdiction of the chancery courts of England at the time of the Revolution, except as modified by the rules of the federal courts and enlarged by statutes in a few instances. Whenever a case is brought in the federal court under the authority of a state statute, which is to say a cause of action created by a state statute, as an enlargement of an equitable right theretofore existing, the federal courts will enforce the right, provided the statute does not enlarge the fundamentals of the chancery jurisdiction of such courts; that is to say, whenever such a state statute enlarging the equitable jurisdiction does not divest a party of the right to trial by jury as the same existed at common law, the federal court will enforce the right as enlarged. This, I think, is fairly deducible from the case of Holland v. Challen, supra.
I take it to be beyond dispute that it is competent for the Legisature of a state, or for the Congress of the United States, to enlarge the equity jurisdiction of the courts of the state or of the United States; each legis-laive body acting, of course, within its proper sphere. Many statutes will be found both in the acts of Congress and in the various states which accomplish this result. It would serve no useful purpose to undertake to set them out. A recent example in our own state will be found in the statute referred to and considered in the case of Dreyfus v. City of Socorro, 26 N. M. ..., 189 Pac. 878. These statutes are uniformly upheld so long as they do not intrench upon the constitutional right of trial by jury, or, as the controlling congressional act applicable to territories provided, ‘ ‘ the right of trial by jury as it existed at common law.”
To say that by statute you could give a court of equity jurisdiction over the question of the title to real estate, where the defendant was in possession, when under the common law in all such cases ejectment was the remedy and the right of trial by jury existed, would be to affirm that by changing the name of the remedy and investing a court of equity with jurisdiction the Legislature could completely abolish the right of trial by jury. Again, if that were true, it could be said with equal propriety that, where an adequate remedy at law existed under which the parties were entitled to a jury trial, the Legislature might nevertheless invest a court of equity with jurisdiction, and make such jurisdiction exclusive.
In Whitehead v. Shattuck, 138 U. S. 146, 11 Sup. Ct. 276, 34 L. Ed. 873, the plaintiff instituted a suit in equity in the Circuit Court of the United States for the Northern District of Iowa to quiet his title as trustee to certain real estate. The bill alleged that the plaintiff was not in possession, but that he was the owner of the real estate described, that the defendant was in possession, holding the same openly and adversely to him, and set forth the defendant’s claim of title, and asked that plaintiff’s title be quieted. Iowa had a statute identical with our own. Mr. Justice Field, speaking for the court, said:
“The Seventh Amendment of the Constitution of the United States declares that ‘in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial hy jury shall be preserved. That provision would be defeated if an action at law could be tried by a court of equity, as in the latter court a jury can only be summoned at its discretion to ascertain special facts for its enlightenment. Lewis v. Cocks, 23 Wall. 466, 470; Killian v. Ebbinghous, 110 U. S. 568, 573; Buzard v. Houston, 119 U. S. 347, 351. And so it has been held by this court' that whenever a court of law is competent to take cognizance of a right, and has power to proceed to a judgment which affords a plain, adequate, and complete remedy, without the aid of a court of equity, the plaintiff must proceed at law, because the defendant has a constitutional right to a trial by jury.’ Hipp v. Babin, 19 How. 271, 278.
“It would be difficult, and perhaps impossible, to state any general rule which would determine in all cases what should be deemed a suit in equity as distinguished from an action at law, for particular elements may enter into consideration which would take the matter from one court to the other; but this may be said, that, where an action is simply for the recovery and possession of specific real or personal property, or for the recovery of a money judgment, the action is one at law. An action for the recovery of real property, including damages for withholding it, has always been of that class. The right which in this case the plaintiff wishes to assert is his title to certain real property; the remedy which he wishes to obtain is its possession and enjoyment; and in a contest over the title both parties have a constitutional right to call for a jury.”
In the ease of Wehrman v. Conklin, 155 U. S. 314, 15 Sup. Ct. 129, 39 L. Ed. 167, the court reviews many of the earlier cases decided under state statutes authorizing suits to quiet title. No useful purpose would be subserved by undertaking to digest each of these cases and set forth specific points decided. I believe a reading of the cases will show that a suit in equity could be filed in the Circuit Court of the United States, the jurisdictional requisites existing, to quiet title to . real estate under a state statute enlarging the equity jurisdiction of courts in such eases as ours: (1) Where the plaintiff was in possession; (2.) where neither plaintiff nor defendant was in possession. B.ut such court has consistently and always denied the right of a party to proceed in equity under such statutes or otherwise where the defendant was in possession, asserting .title to the land. And this denial was put upon either one of two grounds: (1) Suit in equity would not lie where plaintiff had a plain, complete, and adequate remedy at law; and (2) that it was a denial of right of trial by jury in a suit at common law.
Thus it will be seen that in these cases the plaintiff was not denied access to the equity jurisdiction of the federal court because he was invoking a state statute, because in the case of Holland v. Challen, supra, and similar cases, his right to proceed in the federal court under an enlarged equity jurisdiction was upheld. The denial was by reason of the fact that the defendant was in possession and relief was refused because the ease was not properly cognizable in equity and denied the defendant the right of trial by jury.
Appellee relies principally upon the case of Ely v. New Mexico & Arizona R. R. Co., 129 U. S. 291, 9 Sup. Ct. 293, 32 L. Ed. 688. This was a suit filed in the District Court of the territory of Arizona to quiet title to and recover possession of land under a territorial statute which authorized suit to quiet title by one in or out of possession against a defendant, whether in or out of possession. The complaint alleged that the defendant was in possession. Defendant demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action. Demurrer was sustained, and on appeal to the territorial Supreme Court the ruling of the court sustaining the demurrer was upheld. The Supreme Court of the United States reversed the decision of the territorial Supreme Court on the ground that in Arizona, by Code, the distinction between actions at law and suits in equity had been abolished, and that under the Code it was competent for the plaintiff to unite in the same complaint legal and equitable causes ■ of action so long as they were properly related. Appellee construes this case as upholding the validity of the territorial statute in question, which would make the case cognizable in equity, although the defendant was in possession. Counsel misinterpret the effect of this decision.
The territorial Supreme Court upheld the ruling sustaining the demurrer on the theory that the cause of action necessarily was in equity only, and of course the complaint did not state facts sufficient to warrant the equitable relief sought. The Supreme Court of the United States, in reversing the territorial Supreme Court, did so upon the theory that the complaint stated a good cause of action, but it did not say whether the cause of action was at law or in equity. It, however, quoted from former decisions of the Supreme Court construing Code provisions of Montana similar to those involved under the Arizona law and said:
“Under precisely similar statutes of the territory of Montana it has been adjudged by, this court that both legal and equitable relief may be granted in the same action, and may be administered through the intevention of a jury or by the court itself, according to the nature of the remedy soug'ht.”
Necessarily under this holding the question of a right to jury trial would not be involved in the determination of the fact as to whether the complaint stated a good cause of action. That question, could arise only after the issues were framed. Any other interpretation of this case would run counter to Whitehead v. Shattuck, supra, and numerous other decisions of the United States Supreme Court.
Appellee seems to place some reliance upon the case of Stanton v. Catron, 8 N. M. 355, 45 Pac. 884, but this affords him no support. In that case the plaintiff was the owner of a judgment lien against the real estate in question, and on the strength of such lien sought to have his title to the real estate quieted. The court "held that the lien gave him no title in the land or interest in the title; consequently the court was without jurisdiction to entertain his suit to quiet his title. See, also, Security Investment & Development Co. v. Capital City Bank, 22 N. M. 469, 164 Pac. 829.
Appellee cites the following cases which he contends support his position: Parley’s Park Silver Mining Co. v. Kerr, 130 U. S. 256, 9 Sup. Ct. 511, 32 L. Ed. 906; Union Mill & Mining Co. v. Warren (C. C.) 82 Fed. 519; Cameron v. U. S., 148 U. S. 301, 13 Sup. Ct. 595, 37 L. Ed. 459; Wall v. Magues, 17 Colo. 476, 30 Pac. 56; Amter v. Conlon, 22 Colo. 150, 43 Pac. 1002; Zumwalt v. Madden, 23 Or. 185, 31 Pac. 400; Glasmann v. O ’Donnell, 6 Utah, 446, 24 Pac. 537; Rough v. Simmons, 65 Cal. 227, 3 Pac. 804; Stratharn v. Dusy, 70 Cal. xx, 11 Pac. 606; Hesser v. Miller, 77 Cal. 192, 19 Pac. 375; Railroad Co. v. Oyler, 60 Ind. 383; Trittipo v. Morgan, 99 Ind. 269.
An examination of these cases, however, will show that they do not go to the extent claimed, and in reality offer no support whatever to the action of the lower court in this case in denying appellants’ right to trial by jury.
Appellee argues that he can, under this statute, quiet his title to the real estate in question against the appellants, although in possession, but admits that he cannot, without running counter to the guaranteed right of trial by jury, oust the appellants of their possession! For this reason, prior to trial, he disclaimed any right to recover possession in this action. He now argues that, if he succeeds in quieting his title by this action, he will then be able to bring a suit in ejectment and oust the appellants; that in such a suit appellants wil be entitled to trial by jury.
The fallacy in this argument lies in the fact that appellee, by a resort to a court of law in the first place, could accomplish -the same result in one action that he would seek to accomplish by his method in two; in other words, a suit at law will afford him complete and adequate relief, and this fact of itself precludes him from resorting to a court of equity.
But the complaint was good as against the demurrer, because it did state a cause of action. The error was in denying appellants a trial by jury. In such an action they were so entitled under the territorial form of government, and a continuation of this right was guaranteed by the state Constitution, and for this reason, and the further reason stated by Mr. Justice Raynolds, the cause should be reversed.