Where, under the Bankruptcy Act of March 2, 1867, a proceeding
in involuntary bankruptcy was commenced in the District Court of
the United States for the Western District of Michigan before an
attachment on land of the debtor, issued by a state court of
Michigan, was levied on the land, the assignment in bankruptcy,
though made after the attachment, related back and vested title to
the land in the assignee as of the commencement of the proceeding,
and where the attachment was levied within four months before the
commencement of the proceeding, it was dissolved by the making of
The proceeding in this case was held to have been commenced
before the attachment was levied.
Page 114 U. S. 159
The district court which made the adjudication having had
jurisdiction of the subject matter, and the bankrupt having
voluntarily appeared, and the adjudication having been correct in
form, it is conclusive of the fact decreed, and cannot be attacked
collaterally in a suit brought by the assignee against a person
claiming an adverse interest in property of the bankrupt.
The assignment in bankruptcy was made after a levy on the land
under an execution on a judgment obtained in a suit in a state
court of Michigan, brought after the proceeding in bankruptcy was
that the assignee, being in possession of
the land, could maintain a suit in equity in the Circuit Court of
the United States for the Western District of Michigan to remove
the cloud on his title, and that that court could, under the
exception in Rev.Stat. § 720, restrain by injunction a sale under
the levy and a further levy.
On the 10th of October, 1873, John Whittlesey, a creditor of
Benjamin C. Hoyt and Enoch C. Hoyt, co-partners under the name of
B.C. Hoyt & Son, filed a petition in bankruptcy in the District
Court of the United States for the Western District of Michigan
praying that the said two persons, "partners as aforesaid," might
be declared bankrupts. The petition contained the prescribed
allegations and set forth as the demand of the petitioner a
promissory note made by the partnership in its firm name to his
order. It alleged as one act of bankruptcy that the firm had
"fraudulently stopped payment" of its commercial paper "within a
period of fourteen days," omitting to add "and not resumed payment
within said period." It alleged as a second act of bankruptcy that
the firm had "suspended and not resumed payment" of its commercial
paper "within a period of fourteen days."
Before anything was done on this petition except to file it, and
on the 12th of January, 1874, Daniel Chapman procured to be issued
by the Circuit Court of the County of Berrien in the State of
Michigan, an attachment against the lands and personal property of
the said persons, as such co-partners, for the sum of $4,895.44, in
a suit brought by him in that court against them to recover a money
demand, which attachment the sheriff on that day levied on certain
real estate in that county. Enoch C. Hoyt died on the 25th of
February, 1874. On the 5th of March, 1874, a petition, endorsed
"amended petition," was filed by Whittlesey in the bankruptcy
court, containing the same averments as the first petition, with
Page 114 U. S. 160
of the words so omitted in the first petition. In the body of
the petition there was no mention of its being an amended petition,
nor did it allude to the first petition, or to the death of Enoch
C. Hoyt, and its prayer was the same as that of the first petition.
It was verified March 3, 1874.
On the 14th of April, 1874, an order was made in the suit in the
state court entering the default of Benjamin C. Hoyt, for want of
an appearance, on proof of personal service on him of the
attachment and of the filing of the declaration, and on the 16th of
April, 1874, an order was made on affidavit suggesting the death of
Enoch C. Hoyt since the issuing of the attachment and ordering that
the action proceed against the surviving defendant, Benjamin C.
Hoyt. On the 2d of May, 1874, an order was made by the bankruptcy
court, stated in it to be made on the appearance and consent of
"solicitors for the alleged bankrupts," reciting that it had been
shown that Enoch C. Hoyt had "departed this life since the
commencement of the proceeding in said matter" and ordering that
all proceedings should stand against Benjamin C. Hoyt, survivor of
himself and Enoch C. Hoyt, and that they might be prosecuted
against him with like effect as if Enoch C. Hoyt had not died, and
that the individual property of Enoch C. Hoyt be surrendered by the
marshal to his proper representatives. On the same day, Benjamin C.
Hoyt filed a denial of bankruptcy, signed by his attorneys, as
"And now the said Benjamin C. Hoyt appears and denies that he
has committed the act of bankruptcy set forth in said petition, and
avers that he should not be declared bankrupt for any cause in said
petition alleged, and he demands that the same be inquired of by a
On the 8th of May, 1874, in the suit in the state court, a
judgment was rendered in favor of the plaintiff, against Benjamin
C. Hoyt, for $4,930.15 and costs, and on the same day an execution
was issued thereon under which, on that day, the sheriff levied on
the same real estate which he had levied on under the attachment.
On the 1st of June, 1874, an adjudication was made by the
bankruptcy court in these words:
Page 114 U. S. 161
"Adjudication of Bankruptcy on Creditor's
"Western District of Michigan, ss.
n the District Court of the United States for the"
"Western District of Michigan. In Bankruptcy."
"In the matter of Benjamin C. Hoyt, against whom a petition in
bankruptcy was filed on the 19th day of October, A.D. 1873. At
Grand Rapids, in said district, on the first day of June, A.D.
1874. Before Hon. Solomon L. Withey, District Judge."
"This matter came on to be heard at Grand Rapids in said court,
the respondent having withdrawn his denial and demand for a jury
and having, by his attorneys, Hughes, O'Brien & Smiley,
"And thereupon, and upon consideration of the proofs in said
matter, it was found that the facts set forth in said petition were
true, and it is therefore adjudged that Benjamin C. Hoyt became
bankrupt, within the true intent and meaning of the act entitled
'An act to establish a uniform system of bankruptcy throughout the
United States,' approved March 2, 1867, before the filing of the
said petition, and he is therefore declared and adjudged a bankrupt
accordingly. And it is further ordered that the said bankrupt
shall, within five days after this order, make and deliver, or
transmit by mail, postpaid, to the marshal, as messenger, a
schedule of his creditors and inventory of his estate, in the form
and verified in the manner required of the petitioning debtor by
the said act."
"Witness the honorable Solomon L. Withey, Judge of the said
district court, and the seal thereof at Grand Rapids in said
district on the first day of June, A.D. 1874."
"[Seal] ISAAC H. PARRISH"
"Clerk of district court for said District
In the certificate made by the Clerk of the District Court of
the United States for the Western District of Michigan certifying
the copies of the bankruptcy papers, he certifies
"that the foregoing is a true copy of the petition for
Page 114 U. S. 162
filed October 10, 1873, copy of amended petition, order
continuing proceedings, denial of bankruptcy by B.C. Hoyt, and
adjudication of bankruptcy, on file in the proceedings of said
court in said entitled matter."
This is mentioned because in the adjudication, the petition is
referred to as filed October 19, 1873.
On the 16th of December, 1873, an alias execution was issued in
the suit in the state court which the sheriff on that day levied on
real estate in Berrien County other than that before levied on by
him. On the 1st of October, 1874, the register in bankruptcy
executed to Joseph W. Brewer an assignment in these words:
n the District Court of the United States for the"
"Western District of Michigan. In Bankruptcy."
n the matter of Benjamin C. Hoyt, Bankrupt"
"Western District of Michigan, ss.:
"Know all men by these presents that Joseph W. Brewer, of the
Village of St. Joseph, in the County of Berrien and State of
Michigan in said district, has been duly appointed assignee in said
"Now therefore I, J. Davidson Burns, Register in Bankruptcy in
said district, by virtue of the authority vested in me by the 14th
section of an Act of Congress entitled 'An act to establish a
uniform system of bankruptcy throughout the United States,'
approved March 2, A.D. 1867, do hereby convey and assign to the
said Joseph W. Brewer, assignee as aforesaid, all the estate, real
and personal, of the said Benjamin C. Hoyt, bankrupt aforesaid,
including all the property, of whatever kind, of which he was
possessed or in which he was interested or entitled to have on the
tenth day of October, A.D. 1873, with all his deeds, books, and
papers relating thereto, excepting such property as is exempted
from the operation of this assignment by the provisions of said
fourteenth section of said act, to have and to hold all the
foregoing premises, to the said Joseph W. Brewer, and his heirs
forever, in trust nevertheless for the use and purposes, with the
powers, and subject to the conditions and limitations, set forth in
said act. "
Page 114 U. S. 163
"In witness thereof, I, the said register, have hereunto set my
hand and caused the seal of said court to be affixed this first day
of October, A.D. 1874."
"J. DAVIDSON BURNS"
"Register in Bankruptcy
On the 27th of January, 1876, Brewer filed a bill in equity in
the Circuit Court of the United States for the Western District of
Michigan against Chapman (the judgment creditor) and the sheriff
who had levied under the first execution, and the deputy sheriff
who had levied under the second execution, setting forth the filing
of the first petition in bankruptcy and its contents, averring
"that the usual order to show cause was thereupon made by said
district court, and a certified copy thereof duly served on said
Benjamin C. and Enoch C. Hoyt, who subsequently, and in due time,
appeared in said bankruptcy matter,"
and alleging the death of Enoch C. Hoyt, the making of the order
of March 2, 1874, the adjudication of bankruptcy, the appointment
of and assignment to the assignee, the facts in regard to Chapman's
judgment, executions, and levies, and threats by the officers to
sell the real estate levied on. The bill makes no mention of the
amended petition in bankruptcy or of the attachment. It states that
the executions are outstanding; that the real estate so levied on
was the separate property of Benjamin C. Hoyt at the date of filing
the petition; that the plaintiff, as assignee, is the owner and in
possession of all of it except certain specified lots, and that
said levies constitute a cloud on his title and embarrass and
hinder him in disposing of the property, and notices of the levies
have been recorded in the office of the register of deeds of the
county. The prayer of the bill is that the levies be decreed void
as against the plaintiff, as assignee and the defendants be decreed
to release to the plaintiff, as assignee, all their right and title
and interest, acquired under the levies, in and to the real estate
he is so in possession of, and, on their failure to do so, the
decree be ordered to have the effect of said release, and he have
leave to record the same in the office of said register of deeds,
and the defendants be enjoined from selling or interfering
Page 114 U. S. 164
with the real estate the plaintiff is so in possession of. The
bill also prays for such other and further relief as shall be
equitable and just.
The answer denies the validity of the petition set forth in the
bill and denies that Benjamin C. Hoyt was adjudicated a bankrupt on
the footing of that petition or on any petition of which he had
notice, and denies the validity of the adjudication. It sets up the
attachment levy, and admits the existence of most of the material
facts alleged in the bill, and that the property was the separate
property of Benjamin C. Hoyt, but denies that the plaintiff is
entitled to any equitable relief. A replication was filed, and
proofs were taken, establishing the facts above set forth, and that
Brewer had acted as assignee since October 3, 1874, and had had the
management and custody and possession of the property, and paid
taxes on it, since October 10, 1874, and that it was worth about
The circuit court made a decree on April 15, 1880, adjudging
that Benjamin C. Hoyt, "at the date of the filing of the petition
in bankruptcy against him, namely, on the tenth day of October,
1873, was the owner in fee of the" lands described in the bill as
those of which the plaintiff was in possession; that the plaintiff
succeeded to the interest which said Hoyt had in those lands on the
10th of October, 1873, and was and is the owner in fee, and in the
actual possession, of them; that each of said execution levies was
and is a cloud on the title of the plaintiff as assignee to said
lands, and was and is void as against him; that the defendants
execute to the plaintiff a release of their interest in said lands
under said levies, and, on their failure to do so, the decree
should have all the force and effect of such release, and might be
recorded in the office of the register of deeds of said county, and
that an injunction issue, restraining the defendants from selling,
disposing of, or interfering with said lands under said levies and
from making any new or further levies on any of said lands under
said judgment. An injunction to that effect was issued and served
January 3, 1881. Chapman has appealed to this Court.
Page 114 U. S. 166
MR. JUSTICE BLATCHFORD delivered the opinion of the Court. After
stating the facts in the foregoing language, he continued:
The principal question considered by the circuit court, as
appears from its opinion accompanying the record, was whether the
judgment and levies in the suit in the state court being prior to
the appointment of the assignee in bankruptcy, although that suit
was not begun till after the first petition in
Page 114 U. S. 167
bankruptcy was filed, the circuit court had authority to enjoin
a sale of the lands on the executions.
The appellant takes the points that nothing appears to have been
done under the first petition in bankruptcy; that no order appears
to have been made or notice given thereon; that the second petition
was a new petition, and does not profess to be and was not an
amended petition and was not filed under any order authorizing it
as an amendment, and that the adjudication recites the date of
filing of the petition as October 19th, instead of October 10th.
The questions presented here by the appellant are (1) whether the
alleged cloud on the plaintiff's title was a proper ground for
equitable jurisdiction; (2) whether the circuit court had authority
to interfere with the proceedings of the state court; (3) whether
the assignee should not have made himself a party to the
proceedings in the state court, or have intervened therein; (4)
whether the bill and the proof correspond, and whether the bill is
adapted to contest the validity of such lien as arose by virtue of
All the bankruptcy proceedings, except the appointment of the
assignee and the assignment to him, and all the proceedings in the
suit in the state court except the issuing and levy of the second
execution took place before the enactment of the Revised Statutes
on the 22d of June, 1874. The Revised Statutes purport to reenact
the statutes in force on December 1, 1873. At the latter date, none
of the proceedings in bankruptcy had taken place save the filing of
the first petition, and the state court proceedings had not been
The bankruptcy act in force on December 1, 1873, was the Act of
March 2, 1867, c. 176, 14 Stat. 517, the 14th section of which
provided that the assignment to an assignee in bankruptcy
"shall relate back to the commencement of said proceedings in
bankruptcy, and thereupon, by operation of law, the title to all
such property and estate, both real and personal, shall vest in
said assignee although the same is then attached on mesne process
as the property of the debtor, and shall dissolve any such
attachment made within four months next preceding the commencement
of said proceedings."
The provision of Rev.Stat. § 5044 is that the assignment
"shall relate back
Page 114 U. S. 168
to the commencement of the proceedings in bankruptcy, and by
operation of law shall vest the title to all such property and
estate, both real and personal, in the assignee, although the same
is then attached on mesne process as the property of the debtor,
and shall dissolve any such attachment made within four months next
preceding the commencement of the bankruptcy proceedings."
Under these provisions, if the bankruptcy proceedings were
commenced October 10, 1873, they were begun before the state court
attachment was made, and the assignment, when made, related back to
October 10, 1873, and vested title in the assignee as of that date,
and overreached and defeated all claim under the attachment.
Bank v. Sherman, 101 U. S. 403
Conner v. Long, 104 U. S. 228
the bankruptcy proceedings were not begun till March 5, 1874, the
attachment, having been made within four months next preceding that
date, was dissolved by the making of the assignment, and the title
of the assignee vested as of March 5, 1874, which was before any
execution levy. In this view it would not be necessary to notice
any of the objections made as to the first petition, or as to the
second petition regarded as an amended petition, were it not that
the bill is founded on the first petition.
The date of October 19th in the adjudication must be regarded as
a clerical or typographical error. The proper date is stated in the
bill and admitted in the answer, and is stated in the clerk's
certificate and in the bankruptcy assignment, and in a stipulation
signed by the solicitors. Enoch C. Hoyt died February 25, 1874,
before the second petition was filed, and the order made by the
bankruptcy court May 2, 1874, states that he had died "since the
commencement of the proceeding in said matter," and it was that
fact, in connection probably with the fact that no order to show
cause had been served on Enoch C. Hoyt, which made it necessary for
that order to direct the marshal to surrender to the
representatives of Enoch C. Hoyt all his individual property.
It is also objected by the defendant that the petition was filed
against the firm, and that the record does not show that the
petitioner filed any proof of his claim or any proof of
Page 114 U. S. 169
By § 36 of the act of 1867, Rev.Stat. § 5121, where two persons,
partners in trade, should be adjudged bankrupt, not only was the
property of the firm to be taken and administered, but also the
separate estate of each partner. When Enoch C. Hoyt died, the
partnership estate vested in the survivor, and the proceedings
were, by consent of attorneys then appearing for the survivor,
ordered to stand against him as survivor and to proceed against him
as survivor. He appeared by attorney, and consented to an
adjudication. By § 41 of the act of 1867, Rev.Stat. § 5026, the
appearance and consent of the debtor were made a waiver of other
notice. The adjudication states that on consideration of the proofs
it was found that the facts set forth in the petition were true. It
was not necessary to show in this case what the proofs were. If the
district court had jurisdiction of the subject matter, and the
bankrupt voluntarily appeared, and the adjudication was correct in
form, it is conclusive of the fact decreed, and can be impeached
only by a direct proceeding in a competent court, and can no more
be attacked collaterally in a suit like the present than any other
judgment. Michaels v.
21 Wall. 398.
The adjudication and the assignment embraced the individual
property of Benjamin C. Hoyt, and it is alleged in the bill and
admitted in the answer that the property levied on by the
defendants was his individual property.
These views cover all the objections made to the bankruptcy
proceedings, and it must be held that the adjudication was regular
and valid, and refers to, and was made on, the first petition, as
amended by the second, and on a proceeding commenced when the first
petition was filed.
It is objected that the bill makes no mention of the attachment.
But the answer sets up the attachment and the levy thereunder. The
question as to whether a priority of right was acquired thereby was
raised by the pleadings, and the decree makes no reference to the
attachment, but annuls the execution levies.
By § 2 of the act of 1867, the circuit court of the district has
jurisdiction of all suits in equity brought by an assignee in
bankruptcy against any person claiming an adverse interest
Page 114 U. S. 170
touching any property of the bankrupt transferable to or vested
in the assignee. This provision is reenacted in § 4979 of the
Revised Statutes. By Rev.Stat. § 720, it is provided that
"The writ of injunction shall not be granted by any court of the
United States to stay proceedings in any court of a state except in
cases where such injunction may be authorized by any law relating
to proceedings in bankruptcy."
It is contended for the appellant (1) that a suit in equity will
not lie for the relief granted; (2) that at all events there was no
power to award the injunction.
That the defendant claimed an adverse interest touching the
property is clear. The question is whether the plaintiff can have
relief in equity. He was in possession of the land, and, as he
says, of the only building there was on it. By statutory provisions
in Michigan commencing with § 29 of the Act of April 23, 1833 (Code
1833, p. 358), followed by § 1 of the Act of March 28, 1840 (No.
76, p. 127), and the Revised Statutes of 1846 (title 21, c. 90,
sec. 36, p. 360), and now in force as § 6626 of Howell's
"Any person having the actual possession of and legal or
equitable title to lands may institute a suit in chancery against
any other person setting up a claim thereto in opposition to the
title claimed by the complainant, and if the complainant shall
establish his title to such lands, the defendant shall be decreed
to release to the complainant all claim thereto."
If there should be a sale on the executions, there would be a
sheriff's deed, and, by another statute of the state, such deed is
made prima facie
evidence of the regularity of the sale.
Act February 19, 1867, No. 20, § 2, now in force as § 5678 of
Howell's Statutes. It is held by the Supreme Court of Michigan that
the statute first cited covers a claim of a lien on land, and that
a lien which may result in a sale and a deed constitutes such a
cloud that equity will afford relief. Scofield v. City of
17 Mich. 437, 447-448. Especially will this be done
if the lien is not void on its face, as the lien here is not, but
is a cloud on the plaintiff's title. Therefore the plaintiff could
obtain, under the Michigan statute and in a court of Michigan, the
relief he has had. In such a case, a circuit court of the United
Page 114 U. S. 171
otherwise jurisdiction in the case, will as a general rule
administer the same relief in equity which the state courts can
grant. Clark v.
13 Pet. 195, 38 U. S. 203
21 Wall. 503, 88 U. S.
-520; Van Norden v. Morton, 99 U. S.
, 99 U. S. 380
Cummings v. National Bank, 101 U.
, 101 U. S. 157
Holland v. Challen, 110 U. S. 15
Reynolds v. Crawfordsville Bank, 112 U.
. It has general power given to it, irrespective
of citizenship, to grant equitable relief in a suit in equity by an
assignee in bankruptcy against any person who claims an adverse
interest touching the assigned property.
We are not disposed, however, to rest the case upon jurisdiction
arising from the Michigan statute. We hold that under the equity
jurisdiction conferred by the Bankruptcy Act, the circuit court had
authority to remove this cloud on the plaintiff's title. It was the
duty of the assignee to remove it and to obtain a title which would
enable him to sell the land for the benefit of the estate. The
claim of the defendants under the levies is one which ought not to
be enforced. It has no validity as against the rights of the
plaintiff; it throws a cloud on his title; he is in possession, and
cannot sue at law, and the papers supporting the defendant's claim
are not void on their face. Story Eq.Jur. §§ 700, 705; 3 Pomeroy
Eq.Jur. §§ 1398, 1399, and cases cited; Pettit v.
5 Paige 493; Carroll v.
3 How. 463; Ward v. Dewey,
N.Y. 519; Mustian v. Jones,
30 Ga. 951; Martin v.
5 Allen 601; Stout v. Cook,
37 Ill. 283;
Clouston v. Shearer,
99 Mass. 209; Sullivan v.
101 Mass. 447; Anderson v. Talbot,
Heiskell 407; Marsh v. City of Brooklyn,
59 N.Y. 280;
O'Hare v. Downing,
130 Mass. 16, 19. In Pettit v.
it was held that a court of chancery might interpose
to prevent the giving of a conveyance, under pretense of right,
which would operate as a cloud upon the title to real estate. In
O'Hare v. Downing,
it is said that
"a court of chancery will restrain by injunction a threatened
levy of execution upon real estate which is not legally subject to
such a levy, and thus prevent a cloud upon the title, without
compelling the owner of the land to wait until the levy has been
completed, and then admit himself to be disseised in order to
Page 114 U. S. 172
a writ of entry."
Much more will it prevent a sale after a levy.
But it is contended that the circuit court had no authority to
award or issue the injunction. The jurisdiction of that court in
this case is conferred by the "law relating to proceedings in
bankruptcy," and we think the injunction was authorized by that
law. The court of bankruptcy was authorized, by § 40 of the act of
1867, § 5024 Rev.Stat., where a petition in involuntary bankruptcy
was filed, to restrain all persons by injunction from interfering
with the debtor's property. The jurisdiction of suits in equity
given to the circuit court by § 2 of the act of 1867, § 4979
Rev.Stat., was given to it concurrently with the district courts.
It must be held that Congress, in authorizing a suit in equity in a
case like the present, has, in order to make the other relief
granted completely effective, authorized an injunction as
necessarily incidental and consequent to prevent further
proceedings under the levies already made and new levies under the
judgment. But for the supposed inhibitory force of § 720, a court
of equity, in granting on the merits the other relief here granted,
would necessarily have power to award the injunction. We think the
circuit court was authorized to award it here, within the exception
in § 720.
It is urged that the plaintiff should have made himself a party
to the proceedings in the state court and have contested the matter
there under the authority given to him by § 14 of the act of 1867,
§ 5047 of the Revised Statutes, to defend suits pending against the
bankrupt at the time of the adjudication. As the assignment in
bankruptcy was not made till October, 1, 1874, and the judgment and
the levy under the first execution were in May, 1874, we do not
think the assignee was called upon to take any steps in the state
court, after the assignment, to obtain relief. He was entitled to
pursue the remedy he did.
The cases of Krippendorf v. Hyde, 110 U.
, and Covell v. Heyman, 111 U.
, are relied on by the appellant to show that the
decree in this case was erroneous. The view urged is that by virtue
of the levy by the sheriff, the state
Page 114 U. S. 173
court acquired custody, control, and jurisdiction of the
property, which could not be disturbed by the circuit court. But
the doctrine of those cases has no application in favor of the
appellant in a case like the present. In the first case it was held
that after property had been attached by a marshal of the United
States on mesne process from a circuit court of the United States,
a third person, claiming its ownership, could, without reference to
citizenship, come into the circuit court for redress by ancillary
proceedings. In the second case it was held, in pursuance of the
decision in Freeman v.
24 How. 450, that possession of property by a
marshal of the United States under a writ of execution from a
circuit court of the United States could not be disturbed by virtue
of a writ of replevin from a state court issued by a third person.
as was held in Taylor v.
20 How. 583, property seized by a sheriff
under process of attachment from a state court cannot be taken from
the sheriff by initial admiralty process issuing from a district
court of the United States. But those were none of them cases
where, under the Bankruptcy Act, an assignee in bankruptcy claimed
a paramount title and resorted to regular judicial proceedings to
first vacate and declare void the adverse title and sweep it away,
and then have such final process in regard to the subject matter of
the title as should be necessary to make the decree effective. And
in Covell v. Heyman,
the Court, speaking by MR. JUSTICE
MATTHEWS, after explaining the point of the decision in Freeman
"The same principle protects the possession of property, while
thus held by process issuing from state courts, against any
disturbance under process of the courts of the United States,
excepting, of course, those cases wherein the latter exercise
jurisdiction for the purpose of enforcing the supremacy of the
Constitution and laws of the United States."
This exception includes the present case. The bankruptcy
proceeding dissolved the state attachment, and the Bankruptcy Act
conferred on the assignee a paramount title, which he was empowered
by that act to enforce, by proper equitable remedies, in the
circuit court against the adverse title set up by virtue of the
suit in the state court.