
    REMOVAL OF CAUSES — COURTS—CORPORATIONS—RECEIVERS — MORTGAGE—EQUITY.
    [Marion (3rd) Circuit Court,
    January Term, 1904.]
    Day, Mooney and Norris, JJ.
    John T. Monnett v. Columbus, S. & H. Ry. et al.
    1. Right to Insist That Case is Removed to Federal Couet hot Lost by Making Defense ob Appealing.
    Defendant’s right to insist that the case has been removed into the federal court, is not lost by his making a defense in the state common pleas court after its refusal to surrender jurisdiction of the case, nor by appealing the case to the state circuit court. The question is one of jurisdiction of the subject of the action, and will be determined by the state circuit court on the appeal, whether insisted upon by defendant or not.
    2. No Federal Questions Involved Although Federal Receiver Made Party, When.
    No federal question is involved in an action against a railroad company, in the hands of a federal court receiver (who is also made a party defendant), for the cancellation of certain evidential writings, material to the ultimate rights claimed in the action, which are alleged to have been fraudulently obtained from plaintiff; or, in an action commenced against it, as a purchaser at foreclosure sale, to quiet title, or to declare a forfeiture of the land so purchased, in favor of plaintiff, and which, plaintiff had previously conveyed to another railroad company which, mortgaged it, and which was subsequently sold to defendant company under an order of sale issued by the federal court wherein the foreclosure proceeding was had; it not appearing that the controversies are separable as to the receiver, even though it be assumed that a federal question was involved as to him.
    3. Corporation not Dissolved by Appointment of Receiver Company May Still, be Sued.
    A railroad corporation is not dissolved by the appointment of a receiver, nor does the title to its property vest in him; and while no decree or judgment could operate to disturb his custody or management of the company’s property, yet the company can be sued after his appointment as well as before, and a judgment, as between the parties, would be valid and binding.
    4. Mortgagee Acquires no Greater Rights Than Mortgagor.
    A mortgagee of a railroad company’s property acquires no greater interest therein than that possessed by the company itself; and an order of sale of the premises issued in a foreclosure proceeding is, as a general rule, likewise limited.
    fi. Equity Will Cancel and Reform Release Obtained by Fbaud.
    Generally, equity will refuse relief to a party seeking to rid himself of a contract solely on the ground that its' terms are not what he supposed them to be; but when fraud is charged and proved upon the defendant in reading the contract, or in stating the nature of its terms, relief will he granted, and the instrument reformed. Hence, plaintiff will be relieved from the “release” feature of a document executed by him which is in effect both a receipt for a pass, and a release to a railroad company of its performance of certain conditions assumed by it in a conveyance of real estate, when it appears that an agent of the company came and tendered him a mileage book, remarking that as a part of the receiver’s “red tape” he would ask him to sign a receipt therefor; that plaintiff thereupon stated that he could not read the document without his spectacles, and requested the proprietor of the building, wherein the transaction ’took place, to procure spectacles for him, who, after investigation, stated he could not do so; that upon the agent’s assurance that the document was a receipt, and was all right, he signed it without reading, or being able to read it; that he believed it to be a receipt; that he had never, in fact, agreed to release the company from the conditions of the deed; that the pass so issued was of limited duration, and of comparatively insignificant value; that plaintiff was not aware that a release was claimed by the company until almost four years thereafter; that he had, during said period, asserted a claim against the company under the deed; that on occasions prior to the transaction in question the company, or its receiver, had given plaintiff passes over its line, each time taking a receipt from him; that the passes were given to compensate him for the company’s delay in complying with the requirements of the deeds; and that the release was so presented for signature without previous discussion or agreement as to its terms. All these facts, taken together, show a fraud upon plaintiff, and the “release” clause will be cancelled and the document reformed so as to be in form and substance a mere receipt for the pass.
    dJ. Conditions Subsequent and Covenants Distinguished.
    A provision in a deed of realty to a railroad company to the effect that the conveyance is made and conditioned upon the company locating and maintaining a station and other constructions thereon, and causing all regular trains to stop thereat a reasonable length of time, ,etc., is either a condition subsequent, or a covenant running with the land. If a condition subsequent, it can only be taken advantage of by the grantor and his heirs, as it is not legally assignable either by contract or conveyance; hut if a covenant, it runs with the land and binds the assigns of the original grantee.
    7. Right Created by Condition Subsequent not Affected by Contract to Sell —Conveyance Only Affects Covenants.
    A grantor’s right to take advantage of a condition subsequent is not affected by his executory contract to sell the land, wherein he expressly agreed to transfer the benefit of the condition; nor, if the provision be treated as a covenant running with the land, is his right to take advantage of it affected until be conveys the land, for the benefit of which, it exists.
    8. Whether Provision Creates a Condition Subsequent or Covenant not Decided, When.
    Whether a provision in a deed is a condition subsequent or a covenant is one of intention of the parties, to be ascertained from the entire instrument and circumstances, and not from the technical language used. And where the rights of both parties would be the same in either event, the court will not determine which it is.
    9. Forfeiture the Penalty for Breach of Condition — Equity Never Enforces Forfeitures.
    As the penalty for a breach of a condition in a deed, is forfeiture of the estate, a court of equity will never, by affirmative action, enforce it; but equity will sometimes relieve against it.
    10. Jurisdiction of Equity to Quiet Title — Section 5779 Rev. Stat. Construed.
    Equity entertains jurisdiction of an action to quiet title by a plaintiff in possession because, on account of his possession, he cannot proceed at law against an adverse claimant; and under Sec. 5779 Rev. Stat., a plaintiff out of possession wlio has, or claims, an estate or interest in reversion or remainder, may maintain an action to remove a cloud or quiet title against an adverse claimant. But this statute does not extend to one out of possession who claims the entire estate or a present right of possession merely, as he has an adequate' remedy at law in the form of ejectment.
    11. Remedies for Breach of Covenant.
    An action at law for damages, or, in a proper case, an action in equity for specific performance, are the proper remedies for failure to perform a covenant.
    Appeal from Marion common pleas court.
    Scofield, Durfee & Scofield, for plaintiff.
    McNeal & Sons and Lawrence Maxwell, for defendants:
    Conditions subsequent are never favored in the law, and many excuses may be given for nonperformance. Their performance may be waived by the party for whose benefit they are made; and acts which are inconsistent with the claim of forfeiture are held to be sufficient evidence of such waiver. Andrews v. Senter, 32 Me. 394; Fidelity Ins. Tr. & Safe Dep. Co. v. Fridenberg, 175 Pa. St. 500 [34 Atl. Rep. 848; 52 Am. St. Rep. 851] ; Scovill v. McMahon, 62 Conn. 378 [26 Atl. Rep. 479; •21L. R. A. 58; 36 Am. St. Rep. 350].
    There, is no need of a forfeiture in order to secure the plaintiff’s rights, if he has any, for where a grant of right of way has been made for which a railroad company did not pay, the grantor has his lien for the purchase money.
    What are called conditions in the deed involved, are simply covenants. Hornback v. Railway, 20 Ohio St. 81; Watterson v. Ury, 3 Circ. Dec. 171 (5 R. 347); affirmed Ury v. Watterson, 52 Ohio St. 637 [44 N. E. Rep. 1149].
    The condition is no longer available to tlie plaintiff because he has assigned it; and it is not available to David Rexroth because it can only be taken advantage of by the original grantor, the plaintiff, or his heirs at law. Branch v. Weslyn Cemetery (Dir.), 11 Re. 809 (29 Bull. 398); Nieoll v. Railway, 12 N. Y. 121; Underhill v. Railway, 20 Barb. 455; Hooper v. Cummings, 45 Me. 359.
    Equity will not decree a forfeiture. Adams v. Parnell, 5 Circ. Dee. 190 (11 R. 567); Justice v. Lowe, 26 Ohio St. 372, 375; Cross v. Carson, 8 Blackf. 138 [44 Am. Dec. 742]. Section 5771 Rev. Stat. does not change the above rule.
    Plaintiff has no right to dispute his written release. Champion v. Woods, 79 Cal. 17 [21 Pac. Rep. 534; 12 Am. St. Rep. 126]; Aetna Ins. Co. v. Reed, 33 Ohio St. 283; Saunders v. Hatterman, 2 Ired. (N. C.) 32 [37 Am. Dee. 404] ; Mitcbell v. Zimmerman, 4 Tex. 55 [51 Am. Dec.. 717] ; Long v. Warren, 68 N. Y. 426; Slaughter v. Gerson, 80 U. S. (13; Wall.) 379; Lytle v. Bird, 3 Jones (N. C.) 222; Salem India Rubber Co.. v. Adams, 40 Mass. (23 Pick.) 256; Rhoda v. Annis, 75 Me. 17 [46 Am.. Rep. 354] ; Messner v. Smyth, 59 N. H. 41; Leavitt v. Fletcher, 60 N. H. 182; Hawkins v. Hawkins, 50 Cal. 558; McKinney v. Herrick, 66 Iowa. 414 [23 N. B. Rep. 767]; Hallenbeck v. Dewitt, 2 Johns. 404; Fuller v. Insurance Co. 36 Wis. 599; School Committee v. Kesler, 67 N. C. 443; Craig v. Hobbs, 44 Ind. 363; New Albany Ry. v. Fields, 10 Ind. 187; Clem v. Railway, 9 Ind. 488 [68 Am. Dec. 653]; Russell v. Branham, 8 Blackf. 277; Bacon v. Markley, 46 Ind. 116; Seeright v. Fetcher, 6 Blackf. 380; Withington v. Warren, 51 Mass. (10 Mete.) 431; Jackson v. Croy, 12 Johns. 427; Greenfield’s Estate, 14 Pa. St. 489, 497; Gulliher v. Railway, 59 Iowa 416 [13 N. W. Rep. 429]; Rogers v. Place, 29 Ind. 577; May v. Johnson, 3 Ind. 449; Sanger v. Dun, 47 Wis. 615, 620 [3 N. W. Rep. 388; 32 Am. Rep: 789]; Albrecht v. Railway, 87 Wis. 105 [58 N. W. Rep. 72; 41 Am. St. Rep. 30]; Weller’s Appeal, 103 Pa. St. 594; Dellinger v. Gillespie, 118 N. C. 737 [24 S. B. Rep. 538]; Picton v. Graham, 2 Desau. Eq. (S. C.) 592; Campbell v. Yan Houten, 44 Mo. Ápp. 231.
   MOONEY, J.

The petition states'that the railroad company, defendant, is a corporation duly incorporated under the laws of this state, and the defendant Robison is the duly appointed and acting receiver of said company under appointment of the United States district court of the southern district of Ohio, and is under said appointment, in the possession and control of all the property of every kind of said railroad company including the real estate in said petition described; that on April 28, 1893, plaintiff without consideration, by his deed of general warranty of that-date conditionally conveyed to the Sandusky & Columbus Short Line-Railway Company, an Ohio corporation, its successors and assigns, five and ninety-three one hundredths acres of land situate in the township of Grand Prairie in this county and specifically described in the petition; that said deed had incorporated in it this language:

“This covenant is made conditioned upon said The Sandusky & Columbus Short Line Railway Company locating a station, constructing a station house, telegraph office, stock yards, sidings and necessary improvements upon the first described real estate, and maintaining station and said constructions thereon, and causing all regular trains operated upon said railway to be stopped at said station a reasonable length oil time while said railway shall be operated by said The ¡Sandusky and Columbus Short Lipe Railway Company, its successors and assigns, except through passenger and freight trains;-” that said deed was duly recorded and said grantee thereupon entered upon said premises and occupied the same under said deed until the same was sold and conveyed in legal proceedings had in an action pending in the court of common pleas of Crawford county, Ohio, to a committee of the bondholders of said railway company,' and said committee afterwards sold and conveyed the same to defendant railroad company, which company and its receiver, defendant herein, have suc-eeeded to the right and title of the grantee in the first mentioned deed; that the condition of said deed has never been .performed; that defendant railroad company is insolvent; that the receiver has no title to or interest in said land under his appointment, except as receiver; that defendants claim to have been released from all the conditions of said deed by a certain writing or writings now in their possession, but of which they refuse to furnish plaintiff with a copy.

Plaintiff says that about 1897 “defendant railroad company or one of its many receivers recognizing their liability and duty to perform the conditions in said conveyance from plaintiff tendered plaintiff a pass on their said railroad as a temporary solace for their delay in carrying out the said conditions, and when said pass was delivered the agent who handed same to plaintiff requested him to sign a document which he said the red tape of the company required but which was actually an acknowledgment of his receipt of the pass; that plaintiff informed said agent that he did not have his spectacles with him, without which he was unable to read said document, but said agent assured plaintiff that such was the only effect of the document and that he could rely upon the statements of the agent as to its contents being as herein stated, and not otherwise. That thereupon he executed said paper, relying upon the statements of said agent, and if the same contained anything other than a receipt for the said pass, it was a gross fraud upon plaintiff's rights, was obtained from him by false representation and false pretenses and ought to be cancelled and declared void and of no effect.”

The prayer of the petition is that all releases or pretended releases in the possession of defendants be found to be fraudulent and be canceled; that all rights of defendant under said deed of conveyance from plaintiff be declared forfeited and said deed be canceled; that defendants be adjudged to convey the legal title to said lands to plaintiff, and in default thereof that a decree to be entered operate as said conveyance to plaintiff, and that defendants be enjoined from asserting any title to said premises and for all proper relief.

In due time “the defendants, Joseph Robison, as receiver of the Columbus, Sandusky & Hocking Railroad Company and the Columbus, Sandusky & Hocking Railroad Company by Joseph Robison, receiver thereof,” filed a petition for removal to the circuit court of the United States for the northern district of Ohio, western division, and duly filed a proper and sufficient bond for such removal.

The petition for removal states that in an action pending both in the circuit courts of the United States for the northern and southern districts of Ohio, one Samuel M. Felton was duly appointed, as receiver of all the property of the railroad company, defendant, and duly qualified; that Monnett, the plaintiff here, in consideration of an annual pass received from Felton, receiver, released him and said railroad company from the performance of the condition of said deed of conveyance, and that said release is attacked by plaintiff in this action; that after said release was executed Felton resigned as said receiver and defendant Robison was duly appointed in his stead by both said courts, and that the question in dispute, exclusive of interest and costs, involves the sum or value of $2,000 and the suit is one arising under the constitution and laws of the United States.

This petition for removal was dismissed by the court of common pleas. Defendants then moved to dismiss the action upon the ground that the same was commenced without leave first obtained from the courts appointing said receivers or either of them. In support of this motion defendant Robison filed his affidavit stating that “he is in possession of the property described in the petition herein which the plaintiff seeks to recover solely by virtue of said appointment (as receiver) and that he has no relation to or connection with said property otherwise than as as such receiver. ’ ’

This motion was overruled and defendant Robison, as receiver, fiLed his answer containing the statement of four defenses: (1) That the court had no jurisdiction for the reason stated in his motion to dismiss as heretofore recited; (2) denies that defendant railroad company holds said real estate subject to any condition; that it assumed any liability on account of said condition of the original grantee, or that any rights of defendant railroad company under plaintiff’s deed have become or are forfeited; states that the original grantee established a station and constructed stock yards and necessary sidings on said premises and plaintiff never demanded any further compliance with or performance of said condition until after said railroad property, including said premises, were sold by said grantee; (3) that in consideration of an annual pass, plaintiff on September 21, 1897, released said condition -to Felton, receiver; (4) tbat on May 16, 1895, and again on August 30, 1895, plaintiff sold, assigned and transferred to one David Rexroth all Ais rights under or by virtue of said condition.

Plaintiff by reply denies all the averments of the answer and further ■says that defendants repudiated said pass and deprived plaintiff of the, benefits thereof.

The ease was heard and submitted in this case upon the pleadings and the evidence.

Defendants did not urge here any claim based upon the petition to remove, or the motion to dismiss the action. However, they did not lose •or impair their right to insist that the case has been lawfully removed into the federal court by making defense in the common pleas, nor by appealing to this court. Powers v. Railway, 169 U. S. 92, 103 [18 Sup. Ct. Rep. 264; 42 L. Ed. 673]. The question is one of jurisdiction of the subject of the action and is here for determination, whether insisted upon by defendants or not.

Plaintiff’s petition construed in the light of its prayer asserts two claims to relief against defendants: (1) The cancellation of certain writings evidential in their nature and material to the ultimate right claimed in the case, which writings are alleged to have been fraudulently obtained from plaintiff by Felton, receiver. ' (2) To quiet plaintiff’s title or to declare a forfeiture in his favor to certain realty, color of title to which is vested in the defendant railroad company, and the legal custody of which without any other title or interest therein is held by the receiver defendant. The first claim involves no federal question, Gableman v. Railway, 179 U. S. 335, 339 [21 Sup. Ct. Rep. 171; 45 L. Ed. 220]. The second claim involved the title to the property. That title was in the railroad company if not forfeited, and in plaintiff here if it was forfeited. In no point of view was it in the receiver. The appointment of the receiver did not dissolve the corporation. It might be sued afterward as well as before, and while no decree or judgment rendered against the railroad company could operate to disturb the custody of the receiver or his management of the railroad property the ■decree or judgment otherwise and between the parties to the action would be valid and binding. The order of sale in the foreclosure suit in the federal court could not impair this validity.

The title of the railroad company to this realty was of record; the mortgagees acquired their interest with notice; the title of the mortgagees was no greater than the railroad company, the order of sale so far as the pleadings now show was likewise limited. The action then so far as the second claim is concerned and against the railroad company defendant involved no federal question and the controversy does not appear to be separable as to the defendant receiver even though it be assumed that the federal question was involved as to him. The court of common pleas in the first instance had, and this court on appeal now has, jurisdiction of the action, and the petition to remove is denied and the motion to dismiss the action is overruled.

At the trial the evidence was conflicting only as to the circumstances under which the writing of date September 21, 1897, purporting to be a release and satisfaction by plaintiff of the clause in the deed in question, was signed by plaintiff.

Plaintiff gave evidence tending to show that on two occasions prior to the transaction in question the railroad company or its receiver has given him a pass over the line and each time took a receipt for it; that these passes were given to compensate plaintiff for the railroad company’s delay in complying with the requirements of the deed; that on September 21, 1897, Mr. McCune, an agent of the receiver came to him, tendered him a mileage book, remarking that as part of the receiver’s red tape he would ask plaintiff to sign a receipt for it; that plaintiff thereupon stated that he could not read the document without his spectacles and he requested Mr. Weber, in whose restaurant or saloon the transaction took place, to procure spectacles for him and Weber after investigation said he could not; that upon MeCune’s assurance that the receipt was all right he signed the writing without reading or being able to read it; that in signing he believed it to be a receipt merely and that he had never in fact agreed to release said railroad company from any claim he had on account of said deed.

.Defendants’ evidence tended to show that the release was handed to plaintiff at the time without any statement as to its character; that plaintiff looked it over and appeared to be reading it, and after such examination he signed it, without any statement as to spectacles or any request to be supplied with the same; that it was not a mileage book but a pass that was handed to him at the time. Defendants do not deny that other passes had been given to plaintiff before that time and that more receipts were given by the plaintiff for them, and Mr. McCune says that he had no conversation with plaintiff as to an agreement to release, either before or at the time of this transaction, and it is not shown, by defendants that any such agreement to release was ever made by plaintiff with any other person representing either the railroad company or the receiver unless signing the purported lease here in question amounted to such agreement. There is a sharp conflict in the evidence, as to the part of the room at which the signature was written but none that the time was late in the afternoon.

From the issue of former passes, taking receipts1 for the same, the limited duration that the pass issued September 21, 1897, was to run and its comparatively insignificant value, the absence of any prior agreement to release and the absence of any discussion or conversation relating to a release at the time from the tenor of plaintiff’s letter to McCune of date February 18, 1900, from which it appears that then for the first time plaintiff was informed that a release was claimed and from the apparently conceded fact that plaintiff at all times from September 21, 1897, asserted a claim against the company under the provisions of said deed, we are convinced that plaintiff’s contention as to the facts is the very truth in the case. We so find and hold.

We are of opinion that plaintiff’s failure to read the document which he signed will prove no obstacle to the relief which he seeks by way of’ cancellation and reformation. It is true that courts turn a deaf ear to a man who seeks to get rid of a contract solely on the ground that its terms are not what he supposed them to be. But courts will not refuse to listen; on the contrary they will give relief when a plaintiff charges fraud upon the defendant in reading the contract to him or in stating its nature or terms. Foster v. Mackinnon, 4 L. R. C. P. 704; Albany City Savings Inst. v. Burdick, 87 N. Y. 40, reviewing New York cases. Hawkins v. Hawkins, 50 Cal. 558; Schuylkill Co. v. Copley, 67 Pa. St. 386 [5 Am. Rep. 441] ; Linington v. Strong, 111 Ill. 152; Moore v. Brown, 49 Iowa 130; Martindale v. Harris, 26 Ohio St. 379. This would obviously be true of cases in which the complaining party could not read. Kinney v. Ensminger, 87 Ala. 340 [6 So. Rep. 72], or could read only with difficulty, Keller v. Insurance Co. 28 Ind. 170. The presentation of "this release for signature without previous discussion or agreement as to its terms, taken in connection with the previous pass transactions and in the other circumstances of the cases, amounted to a fraud upon, plaintiff.

It is contended by defendants that plaintiff has transferred all his rights under the provisions of the deed in question to one Rexroth before the commencement of this action and that plaintiff cannot maintain this action. The evidence shows that at the date of the deed by plaintiff to the railroad company plaintiff was seized in fee of some 800 acres of land in a body situated near and perhaps surrounding the proposed site of the railroad station. A part of this land he contracted to convey to Rexroth. This contract dated May 16, 1895, among other things provides that Rexroth upon complying with the terms of sale “shall have the .benefit of the contract with the railway company so far as the same cam be legally transferred to him.” On August 30, 1895, the deed of conveyance from plaintiff to Rexroth being executed but not delivered because the consideration was not fully paid, the parties ’ entered into a further contract as to the subject-matter of the conveyance and the use-of the premises until the full payment was made by Rexroth. This contract of August'30, 1895, provides, “the farm scales on the farm are to-go with it to Rexroth and become his property on the delivery of the-deed. (The said scales are located on the railway lands.) The said John T. Monnett hereby assigns and transfers to said David Rexroth, the benefit of his contract with the Columbus & Sandusky Short Line-Railway Company, as fully as the same can be legally transferred by him, all as provided in his written contract of sale of said lands.” .

This contract was not acknowledged and the deed of conveyance to> Rexroth, it seems, contained no reference to the Short Line deed or the provision thereof here in question.

Plaintiff here contends that the provision of the Short Line deed create a condition subsequent. Defendants insist that it creates a covenant merely. We are of opinion that in any view it must be either one- or the other. If now it be a condition subsequent only, the grantor and. his heirs can take advantage of it. It is not legally transferable by the-grantor by contract or conveyance. Schulenberg v. Harriman, 88 U. S. (21 Wall.) 44, 63 [22 L. Ed. 551]; Ruch v. Rock Island, 97 U. S. 693 [24 L. Ed. 1100]; 4 Kent’s Commentaries 127; Co. Litt. 214a; Richardson v. Boynton, 94 Mass. (12 Allen) 138, 141 [90 Am. Dec. 141]. If the provision is a covenant it binds the assigns of the original grantee by its terms and it runs with the land held by the grantor at the time of making the Short Line deed. Avery v. Railway, 106 N. Y. 142, 154,. 155 [12 N. E. Rep. 619]; Post v. Weil, 115 N. Y. 361, 376 [22 N. E. Rep. 145; 5 L. R. A. 122; 12 Am. St. Rep. 809] ; Stillwater Tpk. Co. v. Coover, 25 Ohio St. 558, 560. If, however, it be a covenant in this sense it cannot exist independent of the conveyance of which it forms a part nor antedate the title to benefit which it exists. If then the provision be a condition subsequent the contracts with Rexroth are immaterial because the benefit of the condition was not legally transferable and Monnett agreed to transfer the benefit only if the same was legally possible and to the extent that it was legally possible. If the provision be a covenant then, we assume that it cannot exist in gross, but runs with the land, passing, until released, as an incident upon the conveyance of the land for the benefit of which it exists and the date or transfer of the covenant being necessarily the same as the conveyance of title to the land benefited. Until the deed to Rexroth was delivered, he could have no benefit of the covenant, if it be such, passed to him, not by force of any contract but by virtue of the deed. Hence in this view the contract is also immaterial.

"Whether the provision is in fact a condition or a covenant is, in the absence of a clause of forfeiture or of re-entry, a very difficult question to determine. Under such circumstances the same words may be used to create a condition as to create a covenant. Skinner v. Shepard, 130 Mass. 180. The question is one of intention of the parties, to be ascertained from the entire instrument and the circumstances, and not from technical language used. 4 Kent’s Commentaries 132. Different courts upon language identical or similar have frequently differed in conclusions reached. In view of the difficulty of the question it is therefore a matter of relief to recognize and therefore to hold that in the present case it is-a matter of no consequence whatever whether the language be held to create a covenant or a condition subsequent.

If it is a condition, the penalty for breach would be a forfeiture of the estate. It is elementary that a court of equity will never enforce a forfeiture by its affirmative action. “A court of equity sometimes relieves against forfeitures, but it is not the forum to which to resort to enforce them.” Justice v. Lowe, 26 Ohio St. 372, 375.

In this case it is urged by plaintiff that the Short Line deed should be cancelled, not to enforce a forfeiture, but to quiet title of plaintiff to the lands in question or to remove a cloud from plaintiff’s title. Plaintiff is not in possession of the land described in the Short Line deed. He claims no estate in remainder or reversion in said lands but an entire present estate in fee simple. Equity entertains jurisdiction of an action to quiet title by a plaintiff in possession, because by reason of his possession he "cannot proceed at law against an adverse claimant. For similar reasons our statute gives to a plaintiff out of possession and who has or claims an estate or interest in reversion or remainder, an action to remove a cloud or quiet title against an adverse claimant. Section 5779 Rev. Stat. But this latter provision does not extend to one out of possession who claims the entire estate or a present right of possession merely. Raymond v. Railway, 57 Ohio St. 271 [48 N. E. Rep. 1093].

“As to whether possession by a plaintiff is necessary before he can resort to equity to remove a cloud, there appears to be some conflict of opinion, arising from loose statements of judges, and an overlooking-of the p'rineiples of equity in regard to exercise of its jurisdiction. "Where the estate or interest to be protected is equitable, the jurisdiction should be exercised whether plaintiff is in or out of possession,, for under these circumstances legal remedies are not possible; but when the estate or interest is legal in its nature, the exercise of the jurisdiction depends upon the adequacy of legal remedies. Thus for example, a plaintiff out of possession holding the legal title will be left to his remedy by ejectment under ordinary circumstances.” 3 Pomeroy, Eq. Jurisp. Sec. 1399, note citing cases.

In this case plaintiff’s asserted title to the land, if the provision in the deed be a condition, is a legal estate; to cancel the Short Line deed as a cloud would be to lend the aid of equity to enforce a forfeiture; and if the estate was forfeited a court of law would adjudge it upon the same evidence or even less evidence than would be required in a court of equity to cancel the deed if the case was one proper for that remedy. For all these reasons the remedy at law is adequate and the deed should not be canceled.

If the provision is a covenant, the remedies in the event of failure to perform are, (1) at law for damages, and (2) in a proper case, in equity for specific performance. This is not an action for damages for breach of the covenant and the evidence in the case makes it very clear that the plaintiff neither insists upon nor desires a specific performance of the covenant. Hence, in case the provision be a covenant plaintiff cannot have in this court the one relief and does not desire the other to which in the case he might be entitled.

Upon the whole case we are of the opinion that plaintiff is entitled to have the writing of date September 21, 1897, reformed so as to be in form and substance a mere receipt for the pass then delivered and to have said writing as a release declared null and void and therefore canceled. This relief is ancillary to any proper action at law which plaintiff may see fit to commence. What that action shall be or whether plaintiff has any cause of action this court at this time does not desire to either determine or intimate. All relief prayed for by plaintiff except the reformation and cancellation indicated is denied.

Norris and Day, JJ., concur.  