Schroeder v. . Gurney

Miller, J. A court of equity will interpose its power to set aside or cancel an instrument which is absolutely *434 void, cither by statute or by the principles of the common l&w, by what is familiarly known as a bill of quia timet. This action is sustained upon the doctrine that when a person is apprehensive of being subjected .to a future inconvenience, probable, or even possible, to happen, or to be occasioned by the neglect, inadvertence or culpability of another (as well as in some other cases, which are founded upon the same principle), a bill of this description may be exhibited, which will quiet the party’s apprehension of a future inconvenience, by removing the causes which may lead to it.-(1 Mad. Ch. Pr., 178; Willard’s Eq. Jur., 303.) The ground of relief by cancellation of an instrument is the danger that the rights of the complaining party may be put to hazard by reason of the cloud cast over the title to his land, if the instrument be suffered to remain. It will thus be seen that the rule rests upon the ground that there is something to fear, or some valid reason for apprehension from the title claimed, or which may be claimed, under the instrument, which is the cause of such fear or apprehension, that may interfere with, or impair the rights of the party whose-interests are involved. An idle or groundless suspicion, or a baseless fear, is not sufficient to authorize such an action, but in the papers or proceeding it must appear that there is some difficulty or obstacle which may interfere with the enjoyment of the plaintiff’s rights and affect the title to his land. We think, that the instrument against which the plaintiff asks the interposition of the court presents no case which entitles him to the relief sought. Whatever .right the plaintiff has acquired is founded upon the trust deed executed by Nehemiah Case, which divested him of all title to the premises, except a possible contingent remainder, which, so long as the trust, existed, wras not. liable to be sold. (Briggs v. Davis, 20 N. Y., 16; 21 id., 574.) Whether that contingent remainder is the subject of sale, under a judgment, is not necessary now to determine, and no discussion of that question being required, on this appeal, we-proceed to a consideration of the other points involved. *435 The judgment against Nehemiah Case, upon which a sale was made of the land, as it was docketed after the execution and delivery of the trust deed, was not such a lien upon the land as authorized a sale thereof, and hence could not, as long as the trust existed, he a cloud upon the plaintiff’s title to the same. That the deed was not recorded when the judgment was obtained cannot affect the rights of the parties, nor does it make any difference, because Case was in possession at that time. A deed unrecorded, under the recording act, has a preference over a judgment which is subsequent in point of time. Even if it was an apparent lien, before the trust deed was recorded, and while Nehemiali Case was in possession, it ceased to be so, upon the deed being put on record. All this was changed by the recording of the deed, and it then appeared that there was a trust deed of the premises anterior as to the time of its execution to the judgment, and this fact of itself gave a preference to the trust deed. The case then stood with a deed which had precedence, and a judgment on record which could not affect its validity under any circumstances. So far as the title to the premises is concerned, or the title of the plaintiff, the judgment, the sale under the same,mud sheriff’s certificate, they cannot affect the plaintiff’s rights under the trust deed. The defendant Gurney purchased, with full notice of the existence of the deed, and of the rights of the plaintiff. He acquired no right or title thereby, as the entire record showed that he had none. He could have maintained no action to recover the premises, even if he had acquired a sheriff’s deed, as the trust deed would be a perfect defense to any claim he might make. Whatever title therefore the plaintiff had was not affected at all, and he was not under the necessity of resorting to evidence outside of the record to establish an entire defense to the claim, under the defendant’s deed. The plaintiff had nothing to fear from the judgment and certificate, and the case does not come within the rule, that relief will be granted by a court of equity where extrinsic evidence, which will not necessarily *436 appear in the proceedings by the claimant to enforce the lien, is required to show the invalidity of an instrument, which constitute an apparent cloud upon a title. (Marsh v. The City of Brooklyn, 59 N. Y., 550; Washburn v. Burnham, 63 id., 132.) This rule is more particularly applicable whereparol evidence is required, and does not, we think, embrace a case similar to the one at bar, where the entire evidence is-a deed on record, in the same county clerk’s office, where the judgment is docketed, under which the claim is made. The cases show that considerable importance is attached to-the fact that the evidence depends upon oral testimony that-the supposed conveyance or the instrument is void. (Van Doren v. The Mayor, 9 Paige, 388; Ward v. Dewey, 16 N. Y., 522; Overing v. Foote, 43 id., 293.) Mo such evidence would be required to vindicate whatever right the plaintiff may have. The deed to the plaintiff, of itself, would be all that is necessary to make out a defense to-any claim under the certificate of sale or a sheriff’s deed, in an action to recover the premises. Having been recorded the law presumes that it was delivered to the grantor. It could not be lost, and would be easy of access, to explain any such claim as might arise under the certificate. It'is entirely obvious that there is nothing which demands explanation,, by oral testimony or otherwise, than what the record makes-plain, and the plaintiff cannot maintain an action to remove a cloud on his title, as none such appears. As there was no ground for apprehension, by reason of the judgment and sheriff’s certificate ; without considering other questions, the judgment should be affirmed. All concur. Judgment affirmed.