WEBB & ANOTHER

v.

BARNWALL & ANOTHER

Mr. Justice Miller delivered the opinion of the court. After stating the facts in the language abové reported, he continued :

The Circuit Court treating the bill as an original bill, and as the commencement of a new and independent suit, held that the period of limitation of such suits against the assignees began to run at the date of their appointment in 1874. The two years had, therefore, long been passed and the claim was barred.

But.if we assume, as appellants argue, that the occasion for a suit in equity did not arise until the final judgment at law, then the bill m this case was in time.

We think the latter is the sound rule. Complainants were in possession under what they supposed to be a good title, until •they were evicted, or their title held to be insufficient; they had no occasion to seek to establish their title by a suit in equity, and such a suit they brought within the time of the statute after they ascertained that it was necessary to protect their possession.

But if this were not so clear, it must be held in the courts of the United States, under'previous decisions of this court, that the present bill in équity to enjoin the judgment at law, obtained on the mere legal title, while the equity is in the other party, is a continuation of that suit, and, therefore, the proceeding was-commenced when the action of ejectment was 'brought.

In the case of Simms v. Guthrie, 9 Cranch, 19, Simms had obtained judgment in an action of ejectment in the Circuit Court on a patent from the State of Yirginia against Guthrie. Thereupon Guthrie filed his bill in chancery in the same court setting up a superior equitable title by a prior entry to that on which Simms’ patent had issued; and asking an injunction and a decree for the legal title. It ivas urged as an objection to this bill that there were necessary parties who could not be made defendants in 'the Circuit Court. But this court said that for omitting to bring in these parties an original bill might be dismissed. That, however, was a bill to enjoin a judgment in the Circuit Court, and the bill must be brought in the same court, and the court would dispense with the parties who could not be brought in. In Dunn v. Clark et al., 8 Pet. 1, where an equitable title was set up by bill in chancery against a judgment at law recovered in a Circuit'Court of the United States, the court said: “ The injunction bill is not considered an original bill between the same parties as at law.” It also said if Graham, the successful party in the judgment at law, had lived, the court might have issued an injunction to his judgment at law without a personal service of process except on his attorney, and it is now the settled practice to order such substituted service on the attorney when the plaintiff in the judgment does not reside within the jurisdiction of the court.

In the case of Dunlap v. Stetson, 4 Mason, 349, Mr. Justice Story said: “ I believe the general, if-not the universal, practice has been to consider bills of injunction upon judgments in the courts of the United States, not as original but auxiliary and dependent suits, and properly sustainable in that court which gave the original judgment, and has it completely under control.” This language is cited with approval and the point illustrated in the case of Jones v. Andrews, 10 Wall. 327, and in Christmas v. Russell, 14 Wall. 69.

The case before us comes precisely within the principle of these decisions.

The bill in chancery is a continuation of the litigation commenced by the action at law, and its object is to enjoin the judgment in that suit and to correct its injustice by an equity proceeding in the same court. .

The bar of the statute as to this relief cannot become perfect until two years of inaction have justified a plea of that kind.

The decree of the Circuit Court is reversed and the case re- ’ ‘ mcunded to that court, with directions to overrule the demurrer, and for such further proceeding as to equity belongs.