(after making the foregoing statement). The points of contention specified by appellant in its brief are three:

The broad contention of appellant is that the suit is simply an action at law to recover money for the lands sold by appellant; that “the amount is only a question of arithmetic,” to be ascertained by multiplying the number of acres sold at so much per acre; that the suit is in substance an action of debt or assumpsit, for money had and received, in the form of a suit in equity; that the averments in the bill as to determining who are bona fide purchasers, the quieting of titles, and annulling of patents, are simply suggested in order to give color of right to sue in equity; that, as to the lands sold by the railroad company to bona fide purchasers, “there were no titles to confirm nor patents to annul,” and, as no grounds for equitable relief are stated in the bill of complaint, it should be dismissed. The grounds upon which this contention is sought to be maintained are varied and extensive, and require a careful and painstaking examination of the statutes mentioned in the bill and decree, and of numerous authorities cited by the respective counsel.

Appellant filed its answer to the merits of the bill, without any demurrer, plea, or other objection to the jurisdiction in equity. The government was therefore put to the expense of taking the *655 testimony, and the cause was submitted to the court and tried upon its merits. The first objection to the jurisdiction of the court upon this ground was made in the argument of counsel for appellant at the hearing. It is claimed by appellee, upon these facts, that appellant waived any right to object to the final determination of this cause as one in equity, the court having power to grant the relief sought by the bill, and the court below so held. Upon this point counsel for appellant claims that the court erred; that the true rule is that where the plaintiff, upon the face of his bill, shows he has a plain, adequate, and complete remedy at law, and no other equitable relief is prayed for, it is not necessary that an objection to the jurisdiction in equity should be taken in limine in the answer ; that it need not be made by demurrer or plea; that if taken at the hearing it is sufficient; and, if it clearly exists, it is the duty of the court, sua sponte, to recognize it and give it effect. The following authorities, among others, are cited in support of this rule: Mills v. Knapp (C. C.) 39 Fed. 592 ; Hoey v. Coleman (C. C.) 46 Fed. 221 ; Oelrichs v. Spain, 15 Wall. 211, 227 , 21 L. Ed. 43 ; Lewis v. Cocks, 23 Wall. 466 , 23 L. Ed. 70 ; Killian v. Ebbinghaus, 110 U. S. 573 , 4 Sup. Ct. 232, 28 L. Ed. 246 ; Litchfield v. Ballou, 114 U. S. 192 , 5 Sup. Ct. 820, 29 L. Ed. 132 ; Jones v. Bradshaw, 16 Grat. 361; Green v. Massie, 21 Grat. 362; Buffalo v. Town, etc., 85 Va. 222 , 7 S. E. 238 .

The principle, as applied to the particular facts in these cases, may, for the purposes of this opinion, be admitted to be true. We have had frequent occasion, notably in German Savings & Loan Society v. Dormitzer, 116 Fed. 471, 472 , 53 C. C. A. 639 , and Utah-Nevada Company v. De Lamar (recently decided; C. C. A.) 133 Fed. 113 , to call attention to the fact that the language as used by the courts in their opinions must be read and construed in connection with the facts of the case about which the court is speaking.

Most of the cases relied upon by appellant did not present a case where it was competent for a court of equity to grant the relief asked for, while in the case at bar the averments in the bill clearly show that it is competent for a court of equity to grant the relief asked for. This distinction must not be overlooked by the courts. In the latter line of cases it is held that failure to object to the jurisdiction in equity must be taken by plea, demurrer, or answer at the earliest opportunity, and, if not so made, it will be considered as having been waived.

In Kilbourn v. Sunderland, 130 U. S. 505, 514 , 9 Sup. Ct. 594, 596, 32 L. Ed. 1005 , the court said:

*656 In Brown v. Lake Superior Iron Co., 134 U. S. 530, 535 , 10 Sup. Ct. 604, 606, 33 L. Ed. 1021 , the court said:

See, also, Insley v. United States, 150 U. S. 512, 515 , 14 Sup. Ct. 158, 37 L. Ed. 1163 ; Perego v. Dodge, 163 U. S. 160, 164 , 16 Sup. Ct. 971, 41 L. Ed. 113 ; Williamson v. Monroe (C. C.) 101 Fed. 322, 329 .

This conclusion, of itself, is a sufficient answer to appellant’s contention that the complainant’s cause of action is simply an individual common-law demand for the value of so many acres of land. But if appellant could now raise the question, it could not, in our opinion, be sustained.

The jurisdiction in .equity attaches unless the legal remedy, both in respect to the final relief and the mode of obtaining it, is as efficient as the remedy which equity would confer under the same circumstances. The circumstances of each case must determine the application of the rule.

In Boyce v. Grundy, 28 U. S. (3 Pet.) 210, 215 , 7 L. Ed. 655 , the court said:

In Oelrichs v. Spain, supra, relied upon by appellant, the court said:

Kilbourn v. Sunderland, supra; Joy v. St. Louis, 138 U. S. 1, 49 , 11 Sup. Ct. 243, 34 L. Ed. 843 ; United States v. Union Pacific Ry., *657 160 U. S. 1, 51 , 16 Sup. Ct. 190, 40 L. Ed. 319 ; Walla Walla v. Walla Walla W. C., 172 U. S. 1, 12 , 19 Sup. Ct. 77, 43 L. Ed. 341 .

In carrying out these principles, the courts have held that, where a court of equity is authorized to take jurisdiction over a cause for any purpose, it may retain the cause for all purposes within the scope of the equities to be enforced, and proceed to a final determination of all the matters at issue therein. May v. Le Claire, 11 Wall. 217, 236 , 20 L. Ed. 50 ; Ober v. Gallagher, 93 U. S. 199 , 23 L. Ed. 829 ; Ward v. Todd, 103 U. S. 327, 329 , 26 L. Ed. 339 ; Hopkins v. Grimshaw, 165 U. S. 342, 358 , 17 Sup. Ct. 401, 41 L. Ed. 739 ; Smyth v. Ames, 169 U. S. 466, 516 , 18 Sup. Ct. 418, 42 L. Ed. 819 ; Peck v. Ayers & Lord Tie Co., 116 Fed. 273, 275 , 53 C. C. A. 551 ; Douglas Co. v. Tennessee Lumber Mfg. Co., 118 Fed. 438 , 55 C. C. A. 254 ; 1 Pomeroy’s Eq. Jur. § 181; Lynch v. Railway Co., 129 N. Y. 274, 280 , 29 N. E. 315 , 15 L. R. A. 287, 26 Am. St. Rep. 523 ; Whitehead v. Sweet, 326 Cal. 67 , 75, 76, 58 Pac. 376 .

That the bill upon its face presents sufficient averments of fact to authorize equitable interposition and relief cannot be questioned. Appellant virtually concedes this. But it argues that, when probed to the bottom, it will be found that all the so-called grounds of equitable relief have been settled and disposed of either by the mutual agreements of the railroad company and the government, or by the express provisions of the act of Congress of March 2, 1896, c. 39, 29 Stat. 42 [U. S. Comp. St. 1901, p. 1603], and that the sole question really involved herein is simply a money demand on the part of the government against the railroad company; that the other parties named as defendants have no interest in the litigation, their rights having been previously settled, either by prior litigation or the acts of Congress; and hence that it legally follows that all the equitable allegations of the bill could not have been woven into the complaint for any other purpose than that of giving color of right to sue in equity, a proceeding which, it is claimed, has not received the sanction of the courts, and is wholly inadmissible.

The authorities cited and relied upon by appellant upon this branch of the case are substantially to the effect that, as was stated by the court in Buzard v. Houston, 119 U. S. 347, 352 , 7 Sup. Ct. 249, 252, 30 L. Ed. 451 :

In that case the court expressly recognized fhe rule, which we have before stated, that a suit in equity to enforce a legal right can be brought when such court can give more complete and effectual relief in kind or degree on the equity side than on the common-law side.

In Parkersburg v. Brown, supra, the bill as filed asked for equitable relief, and sought to charge the city as a trustee, and to reach *658 the property covered by the deed of trust. The relief granted by the decree was a simple money judgment against the city for the interest due on the bonds at the date of the decree, based on the legal liability of the city to pay the bonds and coupons, and the court said:

This character of cases has no special application to a case like the present.

In Ambler v. Choteau, supra, the only point decided was to the effect that where the object of a suit in chancery is the recovery of the damages which the complainant alleges he has sustained by reason of an unlawful and fraudulent conspiracy to cheat him out of his interest in an original invention, which is the subject-matter of the controversy, the bill should be dismissed, as his remedy is at law.

In Litchfield v. Ballou, supra, it was held that a bill in chancery which sets forth facts that would support an action at law for money had and received fails for want of equity jurisdiction.

In Scott v. Neely, 140 U. S. 106, 110 , 11 Sup. Ct. 712, 714, 35 L. Ed. 358 , the court said:

These cases illustrate the grounds upon which appellant relies to sustain its contention. They, in our opinion, fall short of lending any aid or comfort in that direction. The facts in the cases are readily distinguishable from the case at bar.

It may be that the United States could have maintained an action at law for the amount of money found to be due from appellant on the familiar and well-recognized principle announced in Gaines v. Miller, 111 U. S. 395, 397 , 4 Sup. Ct. 426, 28 L. Ed. 466 , and other authorities cited by appellant, that whenever a person or corporation has received money to which in equity and good' conscience another is entitled, the law creates a promise by the former to pay the latter, and the obligation may be enforced in assumpsit for money had and received, if that is the only question involved in the action. The suit in hand is, however, of a different character. It is true that one of the objects of the suit was to obtain a judgment and decree against appellant for the amount of money claimed to be due the United States, but it also involved the necessity of ascertaining and establishing the rights of the bona fide purchasers of certain of the lands, the rights of other parties to whom land had been sold by appellant to purchasers under ex-ecutory contracts that had not been fully executed, and the rights of certain bondholders claiming an interest in some of the lands included in the grant to appellant. It did not appear upon the hear-; ing that the averments in the bill of complaint concerning these matters were false or did .not .exist,.nor.did .the complainant obtain *659 any relief by 'the decree which the court was not authorized, upon the showing made, to grant.

We are of opinion that the government had the right to bring a suit which would settle all these matters, and prevent any further litigation upon any of the questions involved herein. The amount of money, if any, due from appellant, could be ascertained by a full consideration of all these matters, and some of the questions raised and determined could not be reached and determined in a court of law. The same considerations which invoke the jurisdiction may control the remedy. A court of equity, with its flexible procedure and far-reaching powers, could alone furnish a full, complete, and adequate remedy, to which the government was entitled, by so molding and applying the remedy as to reach the ends of justice with reference to all the parties and all the issues raised by the bill.

In 1 Story’s Eq. Jur. (12th Ed.) § 33, the author said:

The act of Congress of March 2, 1896, c. 39, 29 Stat. 42 [U. S. Comp. St. 1901, p. 1603], limiting the time in which suits for the cancellation of patents may be brought, provides that in certain specified cases no suits need be brought for the cancellation of patents, nor for the confirmation of the title held by bona fide purchasers. In section 2 it is provided:

It then further provides that;

Then, in section 3, after specifying several conditions, it provides:

The act of Congress did not create the debt due from the railroad company to the government; it did not “adjudge or decree that the corporation thereby became the debtor of the United States”; nor was the passage of the act “an attempt by retrospective statute to deprive citizens of property without due process of law.” It was not a “usurpation of judicial power.” The railroad company was not “condemned without a' hearing to pay a debt.” The ingenious argument of appellant in relation to these matters is not supported by a full consideration and proper interpretation of the various provisions of the acts of March 3, 1887, c. 376, 24 Stat. 556 [U. S. Comp. St. 1901, p. 1595], February 12, 1896, c. 18, 29 Stat. 6 [U. S. Comp. St. 1901, p. 1596], and March 2, 1896, c. 39, 29 Stat. 42 [U. S. Comp. St. 1901, p. 1603], All laws necessarily bear with them all the powers or incidents necessary to fully carry out their intention. One of Domat’s rules, referred to in Sedg. on Constr. of Stat. & Const. L. (2d Ed.) 243, is that:

The obligation of the railroad company, or debt created, arises from the facts set forth in the bill of complaint and proven at the trial. The railroad company had received patents for lands under an erroneous interpretation of the law. It was a clear mistake, and conveyed no rights or title whatever to the railroad company to any of the lands in question. The company sold a portion of the lands to bona fide purchasers, in many cases receiving more than the government price therefor. Not having any title to the lands, and having received the money for the lands it sold to bona fide purchasers, it must be held responsible to pay the amount specified in the act therefor. As was aptly stated by Judge Ross in the court below:

Annexed to the bill of complaint are two exhibits: Exhibit A, showing lands that were erroneously patented by the United States to the Southern Pacific Company prior to March 2, 1896, containing in the aggregate 30,062.79 acres (the record shows that a portion of these lands were sold by executory contracts, which remain unexecuted) ; Exhibit B, showing so much of the lands embraced in Exhibit A as were erroneously patented by the United States to the Southern Pacific Company prior to March 2, 1896, and which, prior to said date, had been sold by said company to bona fide purchasers, containing in the aggregate 16,512.56 acres. Most of the lands described in these exhibits are identical. Exhibit A is virtually a copy of Exhibit B, with here and there an additional tract.

The contention of appellant that “the splitting of demands by voluntary dismissal of part thereof from suit No. 600 is a bar to this suit” cannot be sustained. With reference to this contention, the bill of complaint avers :

The bona fide purchasers who had bought their lands from the railroad company were not made parties to that suit, and no adjudication could have been made therein as to the title of lands held by such bona fide purchasers. In the present suit the bona fide purchasers of the land are properly represented. An adjudication of their title and rights, and a recovery from the railroad company, is sought by the government for the price of the land which had been erroneously patented and sold. It will thus be seen, not only that the parties to these suits are different, but the subject-matter of the suit is also different. The relief sought and the issues raised are by no means identical; but a discussion of this point is wholly unnecessary, because the other suit (No. 600) as to certain lands was dismissed without prejudice, and such a dismissal cannot be pleaded in bar (Hughes v. United States, 4 Wall. 232, 237 , 18 L. Ed. 303 ; Bunker Hill & Sullivan M. Co. v. Shoshone M. Co., 109 Fed. 504, 507 , 47 C. C. A. 200 , and authorities there cited), nor can it in any other manner affect the rights of the government in the present suit.

The decree of the Circuit Court is affirmed, with costs.