It is claimed by the adverse parties that their causes of action are for the recovery of real estate, and therefore not subject to the operation of the above statute. By the terms of the instrument (lease) Hunt, as trustee, and his successors in the trust, were alone entitled to the possession. Trespass to try title will only lie in favor of one entitled to possession of the land sued for. In Cook v. Caswell, 81 Tex. 684, 17 S. W. 385, it is held:

“A plaintiff, in an action of trespass to try title, must show that he has a possessory title to the land at the time of the suit."

In the pending case, the adverse parties allege that the right of possession is not in them, but is and can only be exercised by a trustee to be appointed by the court to execute the trust evidenced by the mining lease of May 25, 1881. The complainant seeks to cancel the act of abandonment by Hunt, dated April 1, 1892, and the sale by James Luttrell of June 11, 1892, upon the ground that said instruments were fraudulent and without authority. Until these instruments are avoided and canceled, the court will be unable to award relief.

In the following cases it has been held that the statute of limitations of four years was applicable to and barred the right of plaintiff to reCover: Shirley v. Waco Tap Ry. Co., 78 Tex. 131, 10 S. W. 543. This was a suit to avoid for fraud a conveyance of land donations. Cooper v. Lee, 75 Tex. 114, 12 S. W. 483. This was a suit to set aside a deed to land for fraud upon the part of the vendee, and to recover the land. Fuller v. Oneal, 82 Tex. 417, 18 S. W. 479, 481. This suit was for appointment of a trustee to execute power of sale contained in deed of trust to secure payment of debt barred at date of institution of suit. In Norton v. Davis, 83 Tex. 32, 18 S. W. 430, plaintiff brought suit against Norton, who claimed under a deed defectively acknowledged by plaintiff, a married woman. Defendant prayed for a decree correcting the defective acknowledgment and judgment for the land. Held, that as defendant could not establish against plaintiff his right to the land without first procuring the validation of the defective acknowledgment, the suit was, in effect, for the latter purpose, though the recovery of the land, or the establishment of his right thereto, might follow, as the consequence of the principal relief. Chicago, Texas & Mexican Ry. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39: This suit was to annul a deed for right of way, and to recover the land. Fraud in securing the conveyance, failure of consideration, etc., were alleged. The court held:

*(1) That the suit was primarily to cancel the deed, and that the judgment for the land prayed for would be the result of such relief to be first granted; (2) that therefore the statute of four years barred the plaintiff's case."

A suit is not necessarily one "for recovery of real estate," because such recovery will follow as an incident to the plaintiff's success. The five years' statute has application to cases in which the plaintiff can sue in trespass to try title, and it has no application to cases in which the plaintiff sues to set aside contracts or deeds that were consummated in fraud, though, as a result of such cancellation, the plaintiff may recover the title and possession of the land.

In the case above referred to (Cooper v. Lee, 75 Tex. 114, 12 S. W. 483), plaintiff filed suit to recover two tracts of land. By amend

1

ment it was alleged that defendant, by reason of false representations to plaintiff, obtained a deed to one of said tracts, and this deed plaintiff sought to cancel and annul, and thereby obtain possession. Judge Henry, speaking for the court, said:

"If the transaction was fraudulent, Lee had a cause of action for its rescission growing out of the transaction itself, and four years is the period prescribed by our statute within which such action shall be brought."

The case of Rutherford v. Carr (Tex. Sup.) 87 S. W. 815, opinion by Judge Brown, would seem to be decisive of the question now under discussion:

"The judgment creditor has the election of two remedies against a fraudulent conveyance; that is, he may bring a suit to set aside the conveyance. or he may levy upon the land and sell it for his debt, and then bring suit for its possession." If he elects the first action, his suit must be brought within four years; but, if he elects the second action, he is permitted to bring it in five years."

In this particular case the court held that the application of the statute depends upon the character of the action, and, this being an action for the recovery of real estate, the four years' statute is excepted in express terms, and the plaintiff's right to recover land was not barred.

In the case of McCampbell v. Durst, 40 S. W. 315, 15 Tex. Civ. App. 522, the court says:

"As the right of the plaintiff, therefore, was one which was required to be asserted by a direct proceeding to procure a decree annulling the deeds under which defendants claim, and hence could not support an action of trespass to try title, it seems to necessarily follow that an action such as this of the kind necessary to enforce such right, is not an action for the recovery of land, in the sense of the statute of limitation. An unavoidable consequence of this is that the four years' statute applies, and the cause of action was barred before the suit was brought. This result is in harmony with the doc trines which have been applied by the courts before this statute was passed in suits asserting such rights as this. They were never placed on the same plane as legal titles, and were always treated as liable to become stale by lapse of time, if not asserted, whether there were adverse possession of the land or not. While the holder of a legal title might sue one asserting an adverse claim, though not in possession, no limitation ran until possession was taken. Not so with persons invested with rights which required the affirmative action of equity to mature them into complete title. To hold that this four years' statute of limitation does not apply would be to hold that there is no limitation to this kind of suit, and that equities such as this are only barred by adverse possession; or else to say that the courts are still to have resort in such case only to the doctrine of stale demands."

The prayers of the complainant for cancellation of deeds, etc., are set out in section 27 and 34 of complainant's bill, and the chief relief sought is the cancellation of the several deeds and leases therein set out in detail.

In the case of Patterson v. Hewitt, 195 U. S. 309, 25 Sup. Ct. 35, 49 L. Ed. 214, the court, speaking through Mr. Justice Brown,

says:

"The defense of laches, which prompted the dismissal of the bill in this case, has so often been made a subject of discussion in this court that a citation of cases is quite unnecessary. Some degree of diligence, etc., in bring ing suit, is required under all systems of jurisprudence. In actions at law,

The statute of

the question of diligence is determined by the words of the statute. If an action be brought the day before the statutory time expires, it will be sustained; if the day after, it will be defeated. In suits in equity, the question is determined by the circumstances of each particular case. limitations consorts with the rigid principles of the common law, but is ill adapted to the flexible remedies of a court of equity. The statute frequently works great practical injustice; the doctrine of laches, never. True, lapse of time is one of the chief ingredients, but there are others of almost equal importance. Change in the value of the property between the time the cause of action arose, as well as his diligence in availing himself of the means of knowledge within his control, are all material to be considered upon the question whether the suit was brought without unreasonable delay."

In the case of Kessler v. Ensley Land Company (C. C.) 141 Fed, 130, this statement is made:

"Complainants insist that the delay of over four years, under the circumstances disclosed by the bill, cannot bar them of relief because this was a suit in equity for the recovery of land, and that the limitation to such actions by the statutes of Alabama, where the suit was pending, is 10 years, and that the statute by its terms applies to suits in chancery as well, and that the federal court sitting in this state is bound by the statutes, or, if not bound, ought to follow the decisions which are cited, construing the statute, and which give complainants the full statutory period in which to sue."

But the court says:

"The fundamental doctrine upon which courts of the United States administer equity must be the same in every state and cannot be changed by state statutes"-citing Kirby v. Lakeshore, 120 U. S. 138, 7 Sup. Ct. 430, 30 L. Ed.

669.

In the latter case the Supreme Court, speaking through Mr. Justice Harlan, and reviewing many cases, said:

"That, while the courts of the Union are required by the statutes creating them to accept as rules of decision in trials at common law the laws of the several states, their jurisdiction in equity cannot be impaired by the local statutes of the different states in which they sit."

Chief Justice Marshall, in United States v. Howland, 4 Wheat. 108, 4 L. Ed. 526, says:

"That as the courts of the Union have a chancery jurisdiction in every state, and the judiciary act confers the same chancery powers on all, and gives the same rule of decision, its jurisdiction must be the same in all the states."

In Payne v. Hook, 74 U. S. 425, 19 L. Ed. 260, it is said:

"We have repeatedly held that the jurisdiction of the courts of the United States over controversies between citizens of different states cannot be impaired by the laws of the state, and that the equity jurisdiction of the courts of the United States is subject to neither limitation nor restraint by state legislation, and is uniform throughout the different states of the Union."

It is not necessary to pursue the discussion further. It would appear that an abandonment of work upon a coal mine for a period of more than four years ought, in itself, to operate as a cancellation of the mining lease and forfeiture of all rights claimed thereunder. Be this as it may, under the doctrine announced in the federal authorities above cited, and the four years' statute of limitations, and

its construction in like cases by the courts of this state, it follows that the causes of action herein sued upon are barred.

The bill and cross-bill should be dismissed, and the decree will so provide.

BOARD OF TRADE OF CITY OF CHICAGO v. NATIONAL BOARD OF TRADE OF KANSAS CITY, MO.., et al.

(Circuit Court, W. D. Missouri, W. D. March 25, 1907.)

No. 3,114.

1. EQUITY-PLEADINGS-EXCEPTIONS.

Where, in an equity suit in a federal court, a paragraph of the bill contained averments of diverse citizenship essential to confer jurisdietion on the court over the controversy, an exception to the whole paragraph as impertinent, irrelevant, and immaterial will be overruled.

[Ed. Note. For cases in point, see Cent. Dig. vol. 19, Equity, § 527.]

2. EXCHANGES-QUOTATIONS-PLEADINGS.

In a suit by a commercial exchange to restrain counterfeiting and simulation of its quotations, a paragraph of the bill containing a recitation of the objects of complainant corporation and the powers conferred by its charter was not objectionable for irrelevancy or immateriality. [Ed. Note.-Quotations of prices and transactions on exchanges, see note to Sullivan v. Postal Tel. Cable Co., 61 C. C. A. 2.]

3. SAME.

Allegations as to the number of members of complainant corporation, the cost of maintaining and conducting its operations, how the necessary fund was raised, the worth of a membership in the exchange, and the character of the persons who might be admitted were immaterial and irrelevant.

4. EQUITY-PLEADINGS-EXCEPTIONS.

Where a paragraph of a bill contains some good allegations, an exception to the whole paragraph will not lie.

[Ed. Note. For cases in point, see Cent. Dig. vol. 19, Equity, § 527.] 5. EXCHANGES-QUOTATIONS-PROTECTION—BILL.

In a suit by a commercial exchange to restrain simulation and counterfeiting of its quotations, a paragraph of the bill alleging the manner of operating complainant's exchange, the way in which the information of the operation and markets are distributed and conveyed through telegraph companies throughout the country, and the time occupied in disseminating such information, was not objectionable for irrelevancy or immateriality. 6. SAME.

In a suit by a commercial exchange to restrain alleged simulation and counterfeiting of its quotations, allegations in a paragraph of the bill reciting the circumstances which induced complainant to refuse to allow its quotations to be given to telegraph companies, except under contract that they would not furnish the same to persons desiring to operate bucket shops, in which business it was claimed defendants were engaged. was proper matter of inducement, and was not subject to exceptions for immateriality.

7. SAME.

In a suit by a commercial exchange to protect its quotations from simulation, a paragraph of the bill alleging the relations and contracts between complainant and certain telegraph companies, with which it was not claimed defendants were in any wise connected or against which they were making no claim, was subject to exceptions for irrelevancy.

|& EQUITY-PLEADINGS-CONTRACTS.

A bill incorporating in hæc verba a printed contract in full, even down to the printed names of the signatures and the attestation thereof, was objectionable as a violation of equity rule 26, requiring that bills should be expressed in brief and succinct terms and should contain no unnecessary recitals of contracts or other instruments in hæc verba.

9. EXCHANGES QUOTATIONS-PROTECTION-BILL.

A paragraph of a bill by a commercial exchange to protect its quotations from simulation, alleging that no person or corporation. was receiving market quotations from any of the telegraph companies specified, without having executed complainant's written contract restraining the furnishing of such quotations to bucket shop operators, was objectionable for immateriality.

10. SAME.

Where, in a suit by a commercial exchange to protect its quotations, complainant alleged that they were furnished only under contract required by complainant with certain telegraph companies, restricting the use of the quotations, allegations that none of the defendants had delivered to any of the telegraph companies a contract therefor in the required forms, and that defendants had not acquired the right to receive such quotations, either from the telegraph companies or from any person to whom the telegraph companies were furnishing the quotations, were not objectionable for immateriality or irrelevancy.

11. SAME-EVIDENCE-JUDGMENTS-OTHER PROCEEDINGS.

In a suit by a commercial exchange to protect its quotations, an allegation that after complainant refused to furnish quotations to telegraph companies, except on the execution of certain contracts restricting the use of such quotations, certain persons conducting bucket shops obtained the quotations surreptitiously, whereupon injunction suits were instituted in different courts of the country, some of which were against the present defendants, in which suits complainant was successful, merely stated at most a mere matter of evidence, and was therefore improper. 12. SAME-RIVAL EXCHANGE-INTENT.

An allegation of matter of evidence of defendant's intent in organizing defendant Board of Trade, a rival exchange, was improper. 13. SAME.

In a suit by a commercial exchange to protect its quotations against simulation by parties not entitled to use the same under contract required by complainant, an allegation in the bill of the existence of defendant Board of Trade, what it was designed to accomplish, what it did, and what it represented with reference to the simulation of complainant's quotations, was immaterial.

14. SAME.

In a suit by a Chicago commercial exchange to restrain simulation of its quotations by persons in Kansas City and vicinity, alleged not to be entitled to complainant's quotations, an allegation in a bill that there were no business conditions justifying or giving rise to any trading in grain or provisions in Kansas City which contemplated or involved delivery in Chicago or of grain or provisions located in Chicago, or to the dissemination of quotations in such transactions, was irrelevant.

15. SAME.

Paragraphs charging that, to carry out the illegal purpose of counterfeiting and indirectly obtaining the benefit of complainant's quotations, defendants, other than defendant Board of Trade, co-operating with others, organized such Board of Trade and rented a building in Kansas City to maintain a commercial exchange, and setting out the purposes and aims of the defendants to obtain complainant's continuous quotations in fraud of its rights, were applicable to the history and purposes of defendant organization and its pretensions, and were not, therefore, objectionable for immateriality.