Gamble v. Loop

By the Court, Paine, J. We think the court below properly sustained the demurrer to the complaint, for the reason that upon the facts stated, the judgments mentioned constitute no apparent cloud upon the plaintiff’s title. It is unnecessary here to determine what was the effect of the first deed executed and delivered to Alexander Gamble, including the entire tract, and which was returned to the land office, that new deeds might be made directly to each party for his share. Such new deeds were given, and the plaintiff’s title, as it now appears of record, is good as against the judgments against Alexander Gamble, for the plaintiff’s title [468] js not traced through him. In order to justify the interposition of a court of equity, the cloud complained of must he apparently good against the title for which the relief is sought. Such is not the case here. Neither can the complaint be deemed sufficient as a complaint to quiet title under section 29, chapter 141, R. S. It is claimed by the respondents’ counsel that the complaint does not show that the plaintiff has the legal title; but without determining that question, it is defective for want of an allegation that the defendants, or any of them, “ set up any claim” to the land. It simply avers that they are “ doing all they can to dispossess the plaintiff of his interest and possession of said land.” They might be doing that wrongfully, without setting up any claim whatever in themselves. The judgment is affirmed, with costs.