Appeal from the Circuit Court of the United States for the Northern District of California.

Suit in equity by the American Uand Company against Douis Zeiss. Decree for defendant, and complainant appeals.

Action to declare a decree entered in the superior court of the city and county of San Prancisco under the act of the Legislature of the state entitled “An act to provide for the establishment and quieting of title to real property in case of the loss or destruction of public records,” approved June 16, 1906 (Stats, of Cal. 1906 [Ex. Sess.] p. 78), a cloud upon complainant’s title to certain lots in the city and county of San Prancisco, described in the decree, and that said cloud be removed, and the decree of the superior court be declared void and of no effect; and that it be adjudged that the complainant is the owner of said lots in fee simple.

This controversy relates to two adjoining lots of land situated in the city and county of'San Prancisco in a block bounded by Clay, Commercial, Davis, and Drumm streets. The lots are described as City Slip and Water Front Lots Nos. 20 and 21, and with other lots of like character on the water front of San Prancisco were originally owned by the state of California. By the act of the Legislature of the state entitled “An act to provide for the disposition of certain property of the state of California,” passed March 26, 1851 (Stats. of Cal. 1851, p. 307), the use and occupation of a certain designated area on the water front, including the lots in controversy, were granted to the city and county of San Prancisco for the term of 99 years from the date of the act. The appellee is the owner of this estate in the lots described, and entitled to their use and occupation until March 26, 1950, as the successor in interest of the city and county of San Prancisco.

By the act of the Legislature-of the state entitled “An act to provide, for the sale of the interest of the state of California in property within the water line of the front of the city and defined in and by the ‘Act to provide for the disposition of certain property of the state of California,’ passed March 26, 1851, approved May 18, 1853” (Stats. of Cal. 1853, p. 219), the Governor of the state of California was directed to appoint a board of commissioners to take possession of the property described in the act of March 26, 1851, and as soon as possible thereafter to sell at auction all the right, title, and interest of the state of California in and to said property. Under this act the interest of the state in this property was sold, and the appellant claims to have succeeded through mesne conveyances to the title of the state to the lots in controversy under that sale, and to be the owner of said lots in fee simple absolute.

It is a matter of common knowledge that the earthquake and fire of April 18, 1906, worked so great a destruction of the public records in San Prancisco as to make it' impossible to trace any title to real estate in the city with completeness or certainty, and legislation became necessary to enable holders and owners of r§al estate in the city to secure to themselves such evidence of title as would enable them not only to defend their possession, but to enable owners of real estate to enjoy and exercise the equally important right of disposition. Title, etc., Restoration Co. v. Kerrigan, Judge, 150 Cal. 289, 305, 88 PaC. 356, 8 L. R. A. (N. S.) 682, 119 Am. St. Rep. 199. In response to this immediate and supreme necessity, the Legislature of the state was convened in special session in June, 1906, and met the requirements of the situation toy passing, among other acts, an act providing for the establishment and quieting of title to real property by an action in rem against all the world in the case of loss or destruction of public records. The act was approved June 16, 1906 (Stats, of Cal. [Ex. Sess.] 3906, p. 78). All actions authorized by the act were required to be commenced before July 1, 3909. This provision of the act was subsequently extended 1o December 31, 3912. The act is commonly known as the “McEnerney act.”

Tlie appellee commenced an action under this statute on August 22, 1906, in the superior court of the city and county of San Francisco, alleging in substance that on the 18th and 19th of April, 1906, a material part of the public records contained in the office of the county recorder of the city and county of San Francisco was destroyed by lire; that on the 38th day of April, 1906. and at the time of filing the complaint, plaintiff therein was the owner oí and in the actual and peaceable possession of the lots in controversy; that the estate, title, and interest of the plaintiff in and to said lots, pieces, and parcels of land, and each of them, was that of owner in foe simple absolute, free from all incumbrances, liens, defects, claims, or demands of any kind or nature whatsoever. The prayer of the complaint was that it be adjudged that the plaintiff was the owner of and entitled to the possession of said described lots of land, and each of them, in fee simple, and that no one else had any estate, right, title, interest, or claim in or to the-same, or any part thereof, either legal or equitable, vested, future, or contingent.

Summons was issued upon this complaint, published in a newspaper and posted upon the property as required by statute, and, no person appearing or claiming any interest or lien upon any of the property in the complaint described, default of all defendants was entered, and on December 39, 1906, a decree was entered in favor of the plaintiff, adjudging that lie was the owner in fee simple absolute and entitled to the possession ol' the land described in the complaint, and that no other person had any right,, title, interest, or estate in and to the same, or any part thereof, either legal or equitable, present or future, vested or contingent;.

On May 26, 1008, or one year and five months after the entry of the decree in the superior court in favor of the plaintiff in the ease (defendant here) establishing his title to the lots in controversy, the complainant brought this suit in the United States Circuit Court claiming title to the lots as owner in fee simple absolute, but alleging in its complaint that the complainant was not then, and never had been, nor had its grantors or either of them ever been, in possession or entitled to the possession, use, or occupation of said land or any part thereof. The complaint further recited the action and proceedings in the superior court, seiting forth the allegations of the complaint and the decree in that court in favor of the defendant, but alleging that said decree was void and of no force or effect and was made and obtained without due process of law and in violation of the fourteenth amendment to the Constitution of the United States, and that said superior court in said action and proceeding never had any jurisdiction over complainant’s predecessors in interest, the persons holding the title during such proceeding, and that said court did not have or obtain jurisdiction to divest the right, title, interest. or estate of such persons. It was further alleged that in the action and proceeding in the superior court and in the obtaining, making, and entry of said decree therein, all tilings were done that were required to be done by the McEnerney act. To this complaint the defendant interposed a demurrer on the ground that the complainant had not in and by its bill made or stated any snch cause as did or ought to entitle it to any such discovery or relief as therein sought or prayed for against the defendant. The court sustained this demurrer and ordered the bill dismissed. Whereupon complainant appealed to this court.