Fejervary v. Langer

STOCKTON, J. The statute anthorizes an action in the nature of an action of right, to be brought by one either in or out of possession of real estate, against another person claiming title thereto, though not in possession, for the purpose of determining and quieting the question of title. Code, sec. 2025. The present suit is not brought under the provisions of this section of the Code. There is no allegation that the defendants or any of them, claim title to the land. The action is more in the nature of a proceeding in chancery to extinguish a lien, or to quiet title. We think this decree cannot be permitted to stand. There are fatal objections to the petition, in that it does not present a case for the interposition of a court of chancery. It is not shown but that the complainant had a full and complete remedy at law, by virtue of the title in fee simple in the premises alleged to be vested in him by the purchase at the trustee’s sale. For aught that appears by the petition, the [162] judgment creditors, who, it is alleged, pretended to have some lien or claim upon the land, may be judgment creditors of the complainant, and not of the defendant Langer. It is not to be denied that the complainant may resort to a court of equity, to extinguish the lien of a judgment, and to have his title in the land quieted against disturbance by the holder thereof. But there should, in all cases, be such distinctness of averment, as that the court, taking the petition as confessed, may see that the party is entitled to the relief sought. Nothing will be supplied by conjecture or inference, to help out the case made by the party’s own statement of his grievances. In this instance, the only grievance alleged is, that certain judgment creditors pretend to have a lien or claim upon the land; and all the remedy sought, (beside the prayer to be put into possession of the land,) is that complainant’s title may be quieted. The court will not infer that the “ certain judgment creditors ” referred to, were the judgment creditors of the defendant Langer, who, by asserting their lien and claim to the land, were thereby casting a cloud upon the title of complainant. Nor will it render a decree upon the prayer, quieting the title of complainant to the land, which by its operation, might prejudice the just rights of judgment creditors of complainant, who may be asserting their lien and claim upon the land, to which he alleges he has acquired the title in fee simple, and upon which, in such case, their judgments would be valid liens. He would certainly have no right to such relief in a court of chancery. The judgment will be reversed and the cause remanded, with leave to the complainant to amend his petition, and to the defendants to answer the same. As the complainant has been put in possession of the land under the writ issued upon the judgment, it will be proper for the District Court, on the application of the defendants shown to have been turned out of possession, to award in their favor a writ of restitution, under which they will be restored to the possession of the premises taken from them. Judgment reversed.