gation of the country and the Great Lakes, and | as to a mighty volume of commercial transactions. It has long been settled that statutes, constitutional in part only, will be upheld so far as they are not in conflict with the Constitution, provided the allowed and prohibited parts are separable. Keokuk N. L. Packet Co. V. Keokuk, 95 U. S. 80 [24 L. ed. 377].

was

How apposite is this language to the facts before the court! Here the books and bills of lading of the steamer would show every fact essential to the apportionment of the cargo into classes of internal and interstate traffic and freight. But even more pertinent is the next succeeding remark of the learned justice: "This precise question was adjudged in the A case of controlling authority upon the Case of State Freight Tax, 82 U. S. 15 Wall. proposition that the Statute may be valid as to 232 [21 L. ed. 146]." There a statutory tax of one class of commerce, even though invalid as Pennsylvania of two cents for one class, three to another, is Ratterman v. W. U. Teleg. Co. cents for another, and five cents for another, 127 U. S. 411-428 [32 L. ed. 229-234]. There imposed upon every ton of freight transported a single tax was assessed by the State of Ohio by any railroad or canal of that State was reupon the receipts of the telegraph company. sisted by the Reading Railroad Company on These were derived as well from interstate as the ground that it was levied on interstate from internal commerce. The items of the commerce. The returns of the railroad comincome account were of course capable of sep- pany to the accounting officers stated separaration, but they were returned and assessed ately the amount of freight carried wholly in gross, and without separation or appor- within the State, and the amount brought into tionment. A bill was presented to the judge or carried out of the State. The court held of the circuit court of the United States, sit" that the tax upon the former class ting in chancery, by the telegraph company, valid under the law of Pennsylvania, by which with averments that the tax was illegal and it was imposed; but that the latter classes, bevoid, and in conflict with the Constitution of ing commerce among the States, were not subthe United States, for the alleged reason that ject to such taxation.' These cases are very the State was seeking by the Act to impose a satisfactory. tax upon gross receipts principally accumulated from interstate telegraphic messages. The prayers were that the defendant, to wit, the treasurer, may be compelled to accept that portion of the tax lawfully due the State and country, and that he may be enjoined from levying or collecting the balance of the assessment. To the bill a general demurrer was filed. The circuit court, after argument, upon an agreed submission of facts, which was in the main but a statement of the separate amounts received from business within the State, and from business between points in Ohio and in other States, held that the tax by the State, so far as apportioned to receipts derived from interstate communication, was unconstitutional and void, but, as apportioned to messages within the State, it was valid. The case reached the supreme court by a certificate of difference of opinion between the circuit and the district judge; and Mr. Justice Miller, for the court, presenting the unanimous opinion with the characteristic vigor and clearness of his judicial deliverances, has with precision, and we think with conclusiveness, defined the rule for our guidance. After stating the question certified, and observing that the agreement of parties had avoided the point that the tax was not separa-be the same process when necessary to maintain ble, the learned justice decisively states: "Nor do we believe, if there were allegations, either in the bill or answer, setting up that part of the tax was from interstate commerce, and part from commerce wholly within the State, that there would have been any difficulty in securing the evidence of the amount of receipts chargeable to these separate classes of telegrams by means of the appointment of a referee or master to inquire into that fact and make report to the court. Neither are we of opin ion that there is any real question, under the decisions of this court, in regard to holding that, so far as this tax was levied upon receipts properly appurtenant to interstate commerce, it was void, and that, so far as it was only up-references to many others.

It is also true that the apportionment and separation of subjects under control of the State, and exempt therefrom, will apply to the transportation routes, as well as to the freight transported or messages forwarded. In the case of W. U. Teleg. Co. v. Atty-Gen. of Mass., 125 U. S. 530 [31 L. ed 790], where a tax by that State was estimated against the company upon the length of its lines within the State, as proportioned to their length elsewhere, it was held that since lines along post routes and across navigable waters of the United States were not subject to taxation, and since, in the State, 233,455 miles of the defendant's lines were thus exempted, there remained only 49,850 miles not exempt; and upon this the company offered to pay the proportion of the tax assessed against it according to mileage by the state authorities. The remaining assessment was enjoined. "We refer to this now," continues this valuable opinion, "only for the purpose of showing how easily the question of taxation which is forbidden by the Constitution may be separated from that which is permissible in this class of cases." If the subjects of taxation are so readily classified to mark the separate domain of federal and state taxing power, how entirely justifiable will

the validity of national legislation! This, as we have seen, is the unquestionable duty of the court. Vide also Tiernan v. Rinker, 102 U. S. 123 [26 L. ed. 103]; Philadelphia & S. M. Steamship Co. v. Pennsylvania, 122 U. S. 326 [30 L. ed. 1200], 1 Inters. Com. Rep. 311; W. U. Teleg. Co.. Pennsylvania, 128 U. S. 39 [32 L. ed. 345].

A case very interesting and very instructive as to this important topic is Philadelphia & S. M. Steamship Co v. Pennsylvania, 122 U. S. 326-345 [30 L. ed. 1200-1204]. The opinion of the court, rendered by Mr. Justice Bradley, comprehends an attractive analysis of the more pertinent decisions upon this rule, with copious

on commerce wholly within the State, it was It will be observed that we have heretofore valid."

considered the argument submitted by respond

ents' proctors as if a portion of the cargo of | internal_commerce, but to inland navigation. The Katie was shipped to be transported wholly So much for the direct purpose of the Act. within the State. It is true, however, as we (3) If internal commerce is affected, it is incishall presently see, that all of it is properly to be regarded as interstate in its character. It is true, also, that The Katie was engaged, in the strictest sense, in interstate and foreign commerce, and that the Savannah River between Augusta and Savannah is, as clearly, as the Mississipp between St. Louis and New Orleans, a navigable river of the United States. We extract the following from the valuable and elaborate brief of Mr. Robert Erwin, the proctor for libelant:

dentally, merely: and the purpose of the Legislature being legitimate, and warranted by the Constitution, it is wholly immaterial to the consideration of its validity that somewhere it has a casual or contingent effect upon the domain of state legislation. (4) Even though the subjects of this extended liability, or the territory in which it is effective, are partially within the region of state control, yet, where they are separable, and are partly under the national control, the Act will be sustained by the courts wherever the power of Congress extends, and as to all those objects to which it attaches; and this rule is easily applicable to the facts. (5) As to the Savannah River, it is a public navigable stream. The voyages of The Katie and her cargo are interstate in character, and the jurisdiction of Congress is undoubted.

It will be seen that the question presented as to the constitutionality of the clause extending the benefit and privilege of limited responsibility to the owners of vessels engaged in navigating the inland public waters of the United States has been heretofore considered solely with relation to the commercial power of Congress. But the commerce clause of the Constitution is not the only title to the validity and effectiveness of the enactments. It is equally clear that the Amendment is warranted by par. 1, § 2, art. 3, of the Constitution, which extends the judicial power of the United States to all cases of admiralty and maritime jurisdiction. Since the demurrer was argued, the Supreme Court of the United States, in Butler v. Boston & S. Steamship Co. 130 U. S. 527-558

"The State of Georgia is bounded on the cast by a line running from the sea, or the mouth of the River Savannah, along the stream thereof, to the fork or confluence made by the Rivers Keowee and Tugalo. Code Ga. § 15. It is proper to state, however, that there has been much discussion as to whether the State of Georgia extends only to the thread of the stream or to the Carolina shore. However that may be, the second article adopted by the conven tion of Beaufort, which settled the boundary between Georgia and South Carolina, provided that the navigable portion of the Savannah River should be henceforth equally free to the citizens of both States, and exempt from all duties, tolls, hindrance, interruption and molestation whatsoever attempted to be enforced by one State on the citizens of another. See Hotchkiss, Stat. Law Ga. 916. And as the steamboat Katie, on every trip, touched at landings on both shores of the river,—that is, in South Carolina and in Georgia,-there can be no doubt that she was engaged in interstate commerce." In New Orleans Cotton Exchange v. Cincin-[32 L. ed. 1017–1025], has settled with distinctnati, N. O. & T. P. R. Co. 2 Inters. Com. Rep. 289-294, we find it announced that commerce between points in the same State, but which passes through another State, is regarded and treated as interstate commerce. Mr. Commis-in its operation with the whole territorial dosioner Morrison, stating the conclusion of the main of that law. (2) While the General Commission, on page 293, uses the language Maritime Law, with slight modifications, is following: "While passing through Missis accepted as law in this country, it is subject, sippi, after passing from Louisiana, this com under the Constitution, to such modifications merce is interstate, and subject alone to inter- as Congress may see fit to adopt. (3) The Limstate regulation. It is not subject at any place ited Liability Act applies to the case of a disbetween Shreveport and New Orleans to regu-aster happening within the technical limits of lation by both the State and the Congress. It passes by continuous carriage from Louisiana to and through the State of Mississippi. It is not transportation wholly within one State.' It is subject to regulation by the provision of the Act to Regulate Commerce, and the Commission has jurisdiction to revise the rates, when the parties interested in them are before it."

This report is strongly advisory, and the statement quoted seems otherwise altogether justifiable. Then The Katie, was in all respects engaged in interstate commerce. See also Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 [29 L. ed. 155]; The Daniel Ball, supra.

To summarize our conclusions upon this important and interesting topic, we are of opinion that the Act of June 19, 1836, is valid, in view of the power of Congress to regulate commerce: (1) Because the law, amended, excepted from its operation inland navigation only, and not internal commerce, as insisted. (2) The Amendment extended the operation of the law, not to

ness the following principles applicable to this discussion: The law of limited liability was enacted by Congress as part of the Maritime Law of the United States, and is co-extensive

a county in a State, and to a case in which the liability itself arises from a law of the State. The case resulted from the well-known disaster to the City of Columbus near Gay Head, at the western extremity of Martha's Vineyard; and it was insisted by respondents to the libel to limit liability, filed by the steamship company, that the doctrine had no application to cases of personal injury and death, and none in the technical limits of a county in a State, nor to a cause of action created by state law. All of these propositions were negatived by the court. The case seems to have been argued with great care and elaboration; and the opinion, rendered by Mr. Justice Bradley, is most valuable. The learned justice declares that the purpose of the Limited Liability Law is, we may observe, not to affect internal commerce, but for the encouragement of ship-building, and the employment of ships in commerce. He refers to the various attempts which have been made to narrow the operation of the Statute. He cites

the leading cases in which the beneficent object | bers of this court for nearly twenty years past, of the law has been set forth: Norwich & N. and they leave us in no doubt that whilst the Y. Transp. Co. v. Wright, 80 U. S. 13 Wall. General Maritime Law, with modifications, is 104 [20 L. ed. 585]; Providence & N. Y. Steam-accepted as law in this country, it is subject to ship Co. v. Lill Mfg. Co. 109 U. S. 578 [27 L. ed. 1038].

"The great object of the law was to encourage ship-building, and to induce capitalists to invest money in this branch of industry. Unless they can be induced to do so, the shipping interests of the country must flag and decline. Those who are willing to manage and work ships are generally unable to build and fit them. They have plenty of hardiness and personal daring and enterprise, but they have little capital. On the other hand, those who have capital, and invest it in ships, incur a very large risk in exposing their property to the hazards of the sea, and to the management of sea-faring men, without making them liable for additional losses and damage to an indefinite amount. How many enterprises in mining, manufacturing and internal improvements would be utterly impracticable if capitalists "These quotations are believed to express the were not encouraged to invest in them through general, if not unanimous, views of the mem-corporate institutions, by which they are exempt

from personal liability or from liability except | liberal expenditures in order to advance the to a limited extent! The public interests re- commerce, which is declared in argument here quire the investment of capital in ship-building to be wholly without national control? quite as much as in any of these enterprises." Having rectified by the Act of 1851 its omission to obtain the benefit of this law for the ship owners who are our countrymen, Congress, finding that it was injudicious to exclude therefrom the interests engaged in inland navigation, rectified that mistaken exclusion by the Act of June 19, 1886, now under consideration. Who can successfully dispute the wisdom of this legislation? Who may deny its absolute and vital importance to the shipping interests of the country upon those northern oceans of living water, traversed by vast fleets of steamers and sailing vessels, annually discharging into the coffers of national and individual treasure an opulence of wealth beyond the dreams of avarice? Is it possible to question the benefit of this law, to the traffic upon those mighty streams which, with their tributaries, vitalize the continent, as the arteries the human body, or upon the innumerable water-courses of lesser volume, but the value of which the nation is beginning to appreciate, and for the improvement of which the public makes annual and

After consideration in detail of the reasons urged against the validity of the Act,-consideration had with the carefulness and attention demanded, not alone by the great moment of the inquiry, but also by the zeal and earnestness with which the supposed encroach. ment upon the rights of the State has been combatted,-we are thoroughly satisfied that the legislation is proper, as well to the commercial power of Congress as to the admiralty jurisdiction of the courts, as modified by the Statutes. It has afforded an aditional illustration of the fortunate truth that the Constitution of our country is never an obstacle to the practical and patriotic assertion of national control over subjects of national concern; but considered in sympathy with the broad and patriotic, yet cautious and conservative, purposes of its framers, it furnishes an undoubted warrant for all legislation appropriate to our diverse system, and in consonance with the expansion and progress of the country on the paths of civilization as they widen and extend.

The demurrer will be overruled.

0.

MISSOURI SUPREME COURT.

Miles W. GARDNER, Appt.. William M. TERRY et al., Respts. (......Mo.......)

1. An injunction may be granted to prevent a sale of land under a deed of trust in order to prevent a cloud being cast thereby on the title, which has been obtained by adverse possession.

2. A suit to restrain a sale of real estate under a trust deed in order to prevent a cloud upon title is one "involving title to real estate" within the jurisdiction of the supreme court.

(Barclay, J., dissents.)

(January 27, 1890.)

at law that he ought to have equitable interference in his favor to save him the effort and trouble of setting it up. This is not the law. Where the law affords a complete remedy, equity will not interfere.

Chicago & A. R. Co. v. Maddox, 10 West. Rep. 42, 92 Mo. 470; Shelbina Hotel Asso. v. Parker, 58 Mo. 327; Kelly v. Hurt, 74 Mo. 561; Bobb v. Graham, 5 West. Rep. 461, 89 Mo. 200.

The purchaser at this sale would have acquired no better title than the trustee had to convey. But except by a sale, the title remains in the trustee, and nothing can be done toward collecting the note or enforcing its payment.

Wilcox v. Walker, 13 West. Rep. 263, 94 Mo. 88; Martin v. Jones, 72 Mo. 23.

Limitation as a defense must be made as such and proved, and an issue at law tendered upon it. It does not become a defense unless made

APPEAL by complainant from a judgment one like any other defe we

of the for Franklin County in favor of defendants in a suit to enjoin the sale of certain real estate under a deed of trust. Reversed.

The facts sufficiently appear in the opinion. Mr. John W. Booth, for appellant: A sale and conveyance thereunder would have made an apparent better title, which, though no title in fact, could only have been defended against by proof of matter dehors the deed. This being so, the sale and conveyance would have cast a cloud on appellant's title; and therefore the court erred in sustaining the demurrer to plaintiff's petition, and should bave made the injunction perpetual as prayed for.

Gunby v. Brown, 86 Mo. 253, and cases cited. Messrs. Isaac T. Wise and John H. Pugh, for respondents:

Plaintiff alleges that he has so good a defense

26.

Lewis v. Schwenn, 6 West. Rep. 855, 93 Mo.

While the sale under the deed of trust will cast a cloud on the title, still it could make no greater or more dense cloud than that originally made by said deed of trust from the day it was filed for record.

Martin v. Jones, supra; Kuhn v. McNeil, 47 Mo. 389; Drake v. Jones, 27 Mo. 428.

Black, J., delivered the opinion of the court:

Gardner brought this suit against William M. Terry and the administrator of William H. Lamoreaux, to enjoin the sale of two lots under a deed of trust in which Terry is the substituted trustee and the estate of Lamoreaux is the beneficiary. The court sustained a demurrer to the petition, and gave judgment thereon, to reverse which the plaintiff appealed.

The petition discloses the following facts: | plaintiff was the owner of a homestead which William H. Lamoreaux, being the owner of had been sold upon execution, and he brought the two lots in question, conveyed them to his suit to remove the cloud thus cast upon his Isaac Brooks by a deed dated the 26th of Au- title. The objection was there made that the gust, 1869. On the same day Brooks gave plaintiff could, by the statutory proceeding, Lamoreaux a deed of trust on the lots to secure compel the defendant to bring a suit at law to two notes, both payable to Lamoreaux,- -one try the title; but the objection was not allowed for $500 payable in ten days, and the other for to prevail, and the petition, it was held, stated $625, payable on the 1st of March, 1870. The a cause of action. $625 note has never been paid, and from this averment it seems the other one had been paid. On the 29th of February, 1872, Brooks conveyed the lots to Sarah V. Lamoreaux, and she at the same time executed a deed of trust thereon. The property was sold under this deed of trust, and Brooks again became the purchaser; and he conveyed to Hall in 1878, who conveyed to the plaintiff in 1882. The administrator of W. H. Lamoreaux caused the defendant Terry to be substituted as trustee in the deed of trust first mentioned, which was executed by Isaac Brooks, and advertised the property for sale under that deed of trust. This is the sale which plaintiff seeks to enjoin. He states in the petition that he and his grantors have been in the actual, open, notorious, adverse possession of the lots for more than ten years, and that the deed of trust is barred by the Statute of Limitations; and this is the ground upon which he seeks to enjoin the proposed sale.

Although a note secured by a deed of trust may be barred by limitation so that no personal judgment can be had on it, it does not follow that the remedy on the deed of trust is barred. To defeat a foreclosure or other remedy on the deed of trust there must have been ten years' adverse possession. These principles of law have been often asserted by this court. Booker v. Armstrong, 93 Mo. 58, 10 West. Rep. 325, and cases cited.

On the facts, as they are stated in the petition in this case, it must be conceded that the deed of trust and all remedy thereon is barred by reason of the ten years' adverse possession, and the question is whether this fact furnishes a good ground for injunctive relief. In general, the Statute of Limitations is available in defense only, but ten years' adverse possession of real estate will not only bar an action of ejectment, but it will confer title upon the possessor. A title thus acquired is as good as any other title, and ejectment may be maintained as well as defended upon such a title. Nelson v. Brodhack, 44 Mo. 596; Fulkerson v. Mitchell, 82 Mo. 20.

It is therefore difficult to see why a title thus acquired is not entitled to the same protection as a title acquired in any other way. The objection made to the relief asked is that the plaintiff can avail himself of the defense in an action of ejectment brought by the purchaser at the trustee's sale. That he could do this there can be no doubt, but it is not a complete answer to the right to the relief asked. The relief is demanded on the ground that the sale will cast a cloud on the plaintiff's title. The jurisdiction and power of a court of equity to prevent a cloud being cast upon the title to real estate is as well established as is the jurisdiction and power to remove one already created. McPike v. Pen, 51 Mo. 63; Martin v. Jones, 72 Mo. 24; Vogler v. Montgomery, 54 Mo. 577.

In Harrington v. Utterback, 57 Mo. 519, the

In Vogler v. Montgomery, supra, the question arose whether a sale under a deed of trust should be enjoined. The plaintiff was the owner of a homestead which had been sold under execution, and the purchaser at the execution sale made a deed of trust on the property thus purchased. It was held that the sale under the deed of trust should be enjoined. The court said: "It is the true policy of courts to prevent litigation, and a sale by the trustee would undoubtedly cast a cloud over plaintiff's title and embarrass a sale, if he desired to sell." See also State v. Tiedemann, 69 Mo. 306.

Where the facts are such that a court would remove the cloud when cast, it seems clear the court should interfere by injunction to prevent its being cast. 1 High, Inj. 2d ed. § 372.

The relief is granted in such cases upon the ground that the deed or other instrument constituting the cloud may be used to embarrass the plaintiff's title, and that, too, when the planitiff's evidence is not at hand. As we hold in this State that one judgment in ejectment is not a bar to the prosecution of another like suit between the same parties for the same property, injunctive relief ought not to be withheld on the sole ground that the plaintiff may make his defense in an action of ejectment. The relief at law, to defeat the equitable jurisdiction, should be adequate and complete. The present invalidity of the deed of trust does not appear from the face of the records. It only appears by a resort to other evidence, and parol evidence at that; so that there can be no objection to the petition on the ground that the proposed sale will be void on the face of the records. It is to the interest of all parties that the present validity of the deed of trust should be settled before a sale thereunder, and our conclusion is that the demurrer should have been overruled.

The point is not made in the briefs, but the question has been properly suggested by members of this court, whether we have jurisdiction of this appeal. If this court has jurisdiction, it is because the case is one "involving title to real estate," it not appearing that the amount in dispute exceeds $2,500.

We have held again and again that suits for the enforcement of tax-bills, mechanics' liens and vendors' liens are not suits involving the title to real estate. In such cases there is generally no contest about the title, and the question is one of the enforcement of a lien against a conceded title.

In the case of State v. Court of Appeals, 67 Mo. 200, the relator had obtained a judgment enjoining a sale under execution on the ground that the sale would cast a cloud upon his title, from which an appeal was taken to the court of appeals, and it was held that the case was not one involving the title to real estate, and hence an appeal would not lie to this court. The facts of that case are not stated in the opinion, but it closes with these significant ob