Gage v. Starkweather

Mr. Justice Scholeield delivered the opinion of the Court: This writ must be dismissed. No freehold is involved, and there is no other ground upon which we can entertain jurisdiction. The bill, in effect, is simply a bill to redeem. The so-called tax deed is alleged in the bill, and admitted by the demurrer, to have been without a seal, and so it is of no effect as an instrument of conveyance. (Pile v. McBratney, 15 Ill. 314.) Where title is invalid on its face, so that it can never be successfully maintained, it does not amount to a cloud, but may always be repelled by an action at laiv. (Overing v. Foote, 43 N. Y. 290; Ward v. Dewey, 16 id. 519; Maloy v. Dougherty, 16 Wis. 269; 2 Story’s Equity, see. 700 a.) Necessarily, therefore, a bill to set aside such an instrument as that here alleged and admitted, could not involve a freehold, and although a redemption may ultimately affect a freehold, the question of the right to redeem very clearly involves no freehold. If the right be established, the decree is simply that the party be allowed to redeem, leaving the title just as it is. The writ of error is dismissed. Writ of error dismissed.