Levindale Lead & Zinc Mining Co. v. Fluke

Opinion by COLLIER, C. (after stating the facts as above). There are a great many errors assigned, but, from the view we take of the case, the vital question is as to the title to said lands, and whether or not actual possession is necessary to authorize plaintiffs to maintain the action. The claim of title of the defendants is based upon a deed, executed prior to the removal of restrictions upon *482 the' alienation of said land, and therefore the same, being in direct violation of the laws of the United States, was void. Consequently the parties ’ claiming under said deed never acquired any title; and it is entirely immaterial whether or not plaintiffs were advised that said deed was executed by said allottee to the party under whom defendants claim, and said defendants can claim no benefit by reason of the plaintiffs having such knowledge prior to the execution of said deed of the allottee and wife' to. plaintiffs. The lands were unoccupied and the deed which is the basis of- the chain of title of plaintiffs was executed subsequently to the removal of restrictions uptin the alienation of said lands and conveyed a good title to the parties under whom plaintiffs claim, free from any infirmity by reason of the provisions of section .2215, Comp. Laws 1909 (section. 2260, Rev. Lands 1910). It therefore follows that the title to said lands is vested in plaintiffs, and the court did not err in so holding. With the above question disposed of, the sole question remaining is whether or not actual occupancy must be alleged in the petition and proved, in order to entitle plaintiffs to maintain their action. This action may be maintained by one in actual possession, under section 4927, Rev. Laws 1910, or it may be maintained under well-established equitable jurisprudence by any one in whom the legal title is vested, where the lands are entirely unoccupied. In Grove v. Jennings, 46 Kan. 366, 26 Pac. 738, construing section 594 of the Kansas Code, which is identical with section 4927, Rev. Laws 1910, the court said: “The plaintiff in error insists that there is no allegation of nossession in plaintiff’s petition, and that this is *483 necessary. Is possession necessary in an action to remove a cloud from a title? The doctrine is well settled that courts of equity will grant relief on the principle quia, timet; that is, that the deed or other instrument or proceeding constituting the cloud may be used to injuriously or vexatiously embarrass or affect a plaintiff’s title. Pom. Eq. Jur., sec. 1399. While there appears to be some conflict of opinion as to whether possession is necessary, we think the greater weight of authorities settles the question m favor of the proposition that, where a party out of possession holds the legal title under such circumstances that the law cannot furnish him adequate relief, his resort to equity to have a cloud removed ought not to be questioned because he may bq out of possession or the land vacant. It is said that this was an action to quiet title, brought under section 594 of the Code of Civil Procedure, and that actual possession was a prerequisite at the time the action commenced. If this were true, counsel’s position would be correct; but the action was not brought under section 594, and we do not understand that the statute in regard to quieting titles took away any of the previously existing equitable remedies. This case comes within a well-understood rule of equitable jurisprudence, and is independent of statutory regulations. The relief in such cases is of a kind given under the old practice only in courts of equity, and in cases outside the limits of the statute; and the facts must be fully stated, substantially as in a bill in equity under the former chancery practice. Douglass v. Nuzum, 16 Kan. 515; Story. Eq. Jur., secs. 700-706; Pettit v. Shepherd, 5 Paige, 501 [28 Am. Dec. 437]; Field v. Holbrook, 6 Duer [N. Y.] 597; Jones v. Smith, 22 Mich. 360. Under this equitable rule, a person who holds the legal title to land, though not in possession, may, independently of the statute, maintain a suit in equity to remove a cloud upon his title, and in such suit the court may decree the reformation or cancellation of records and the execution of deeds or releases. Hager v. Shindler, 29 Cal. 47; Thompson v. Lynch, 29 Cal. 189; Kennedy v. Northrup, 15 Ill. 148; Redmond v. Packenham, *484 66 Ill. 434; Booth v. Wiley, 102 Ill. 84; Tabor v. Cook, 15 Mich. 322; Ormsby v. Barr, 22 Mich. 80; Jones v. Smith, supra; King v. Carpenter, 37 Mich. 363; Low v. Staples, 2 Nev. 209; Almony v. Hicks, 3 Head [Tenn.] 39; Pier v. City of Fond du Lac, 38 Wis. 470; Bunce v. Gallagher, 5 Blatchf. 481 [Fed. Cas. No. 2,133].” Said section 4927, Rev. Laws 1910, was adopted from Kansas, and the decisions of that state, prior to its adoption by this state, are controlling. In Grove v. Jennings, supra, the case of Douglass v. Nuzum, 16 Kan. 515, is quoted and approved. In Taylor P. Christy v. Myram S. Springs, 11 Okla. 710, 69 Pac. 864, it is said: “The section quoted is not intended to give the right to bring an action to quiet title, for that existed previously, but to authorize an additional remedy to quiet the .possession, and, of necessity, such possession must be an actual one. Constructively, the owner of land is a*s much in possession where it is occupied by his tenant as when occupied by himself. If the possession mentioned in this section is a mere constructive one, then the words ‘or tenant’ have no significance; but, by giving the word ‘possession’ its primary and legal meaning, the words ‘or tenant’ become important, and authorize the action upon the possession by tenant. The defendant had not the actual possession necessary to entitle her to1 maintain the action under the section quoted. However, independent .of the statute, an action to quiet title may be maintained by the holder of the legal title, where he is not in possession, if the premises be vacant and unoccupied.” Under the view expressed by us, the amended petition in this cause stated a cause of action, and the court did not err in overruling the demurrer thereto. Other errors are assigned than the ones considered; but, under the *485 view we express herein, we deem it unnecessary to review them. The judgment of the trial court should be affirmed. By the Court: It is so ordered.