Douglass v. Nuzum

The opinion of the court was delivered by Brewer, J.: Defendant in error brought his action in the district court of Jefferson county for the purpose of quieting his title to certain premises. He filed a petition making plaintiff in error, Patrick M. Lyon and S. S. Cooper defendants, in which he alleged that he was the owner and held the legal title to the premises, that they were unimproved and unoccupied by any one, and that the defendants were “setting up and claiming some estate and interest in and to said real estate adverse to his estate and interest.” The prayer was, that the defendants might be compelled to show and disclose their title or interest, and that it be adjudged void, and his title declared to be full and perfect. The separate answer of defendant Douglass contained, first, a general denial, and then what is called a cause of action and counterclaim against the plaintiff and his co-defendants, in which he alleges that he is the owner in fee simple, and in peaceable possession of the premises, and that the plaintiff and the co-defendants claim some interest adverse to him, the nature of which he is ignorant of, but which he avers to be null and void. He then alleges the execution of three tax-deeds, two of which are set out in full, claims the benefit of the statute of limitations as to them, and closes with this prayer for relief: [518] “Wherefore, by reason of the foregoing and other muniments of title, defendant prays that his title in and to said land, and his possession of the same, and his right to said possession, may be quieted, and that all claim and interest, or pretended claim and interest of said plaintiff may be determined and adjudged to be void,” etc. To this answer, or at least to all except the general denial, a reply was filed, containing a general denial, and then pointing out specific objections to the tax-deeds. When the case was called the defendant objected to the introduction of any evidence, for the reason that the petition did not state facts sufficient to constitute a cause of action, which objection the court overruled, and defendant excepted. Was there error in this ? This it must be borne in mind is not an action under the statute. By § 594 of the code, a party in possession may maintain an action against any person who claims an adverse interest. But .possession in that section means actual possession. Eaton v. Giles, 5 Kas. 24. It would seem that this language was broad enough to cover any adverse claim, whether based upon color of title or not, though as that question is not before us we pass it for further consideration. Shepardson v. Supervisors, &c., 28 Wis. 593; Holbrook v. Winsor, 23 Mich. 394. Whether also it is necessary in a petition under that section to set out the nature of the defendant’s claim, and the grounds of its invalidity, or allege ignorance of its nature and pray a discovery, or sufficient simply to allege that the defendant claims an adverse interest, does not now demand a decision. See upon the question, Wales v. Grosvenor, 31 Wis. 681, and Holbrook v. Winsor, supra. Nor is this action brought under §118 of the Tax Law of 1868, (Gen. Stat., p. 1057.) That section authorizes an action to recover possession against any one placing a tax-deed on record. It is immaterial in such an action whether the holder of the tax-deed be in possession or not. Probably the statutory petition for the recovery of real estate would be sufficient in such case, and proof of the record of the tax-deed would be conclusive upon the matter of possession. Under that section a man in actual possession may maintain an action [519] to- recover possession from one who was never on the land. The plaintiff in this case is proceeding independently of these statutes. He is seeking a character of relief not given under the old practice in courts of law, but only in courts of chancery, and he must show such a state of facts as under the rules of equity-practice would entitle him to relief. Would equity interfere upon the mere allegation that defendant had an adverse claim, investigate its nature, and determine as to its sufficiency? Clearly not. Only when it appeared that there was a cloud upon the title, would the chancellor act. If the adverse claim was based upon proceedings of record, void upon the face, and such as by no lapse of time or change of condition could become otherwise than thus void, there was no case for equitable interference. There must be something to “ cast doubt or suspicion upon the title, or seriously embarrass the owner, either in maintaining his rights, or in disposing of his property.” A deed from one who has no shadow of title casts no cloud. Stark v. Chitwood, 5 Kas. 141. “The rule is well settled, that when a defect appears upon the face of the record through which the opposite party can alone claim title, there is not such a cloud upon the title as to call for the equitable powers of the court to remove it. But when such claim appears to be valid upon the face of the record, and the defect can only be made to appear by extrinsic evidence, particularly if that evidence depends upon oral testimony to establish it, it presents a case for invoking the aid of a court of equity to remove it as a cloud upon the title.” Ward v. Dewey, 16 N. Y. 519. So also, where the claim rests upon proceedings which, however irregular, may result through lapse of time in an instrument, evidence prima facie or conclusive of the regularity of those proceedings, such as a tax-deed under our statutes. Hibernia S. & L. Society v. Ordway, 38 Cal. 679. See further upon these points, Mayor, &c., v. Meserole, 26 Wend. 132; Van Doren v. The Mayor, &c., 9 Paige, 388; Scott v. Onderdonk, 14 N. Y. 9; Hatch v. City of Buffalo, 38 N. Y. 276; Allen v. City of Buffalo, 39 N. Y. 386; Crooke v. Andrettis, 40 N. Y. 547; Levy v. Hart, 54 [520] Barb. 248; Barron v. Robbins, 22 Mich. 35; Shepardson v. Supervisors, &c., 28 Wis. 593; Dunklin County v. Clark, 51 Mo. 60; Springer v. Rosette, 47 Ill. 223. If equity will not interfere in all cases of adverse claim, it would seem to follow that the petition should show something more than the mere fact that defendant makes an adverse claim. It ought to disclose such a state of facts as calls for the exercise of equitable jurisdiction. It should allege the nature of defendant’s title or claim, and show how it operates as a cloud; or, if it is'unknown, this should be alleged, and a discovery prayed. See in addition to authorities heretofore cited, King v. Higgins, 3 Or. 406; Wales v. Grosvenor, 31 Wis. 681; Holbrook v. Winsor, 23 Mich. 394. It is impossible to anticipate and therefore to notice all the circumstances and cases in which an adverse claim calls for the exercise of the powers of a court of chancery. All that can be said is, that it must appear that the plaintiff’s rights may be endangered unless the defendant’s claim is judicially determined to be null and void. If this claim is known, it should be disclosed, that the court may see the danger. If unknown, it should be alleged to be unknown, and the defendant called upon to disclose it. It is unnecessary to inquire what would be the result if the claim was alleged to be unknown and proved to be known. It seems to us therefore, that this petition, inasmuch as it fails to show the nature of the defendant’s claim, or allege ignorance of its character, is insufficient, and does not state a cause of action. Was the defect waived by a failure to demur, or cured by an answer setting up title in defendant? We think not. The objection to the petition is not, that it is not sufficiently definite and certain, in which case a failure to move that it be made definite and certain waives the defect, but'that it wholly omits certain essential elements of a cause of action. This a failure to demur does not waive. Nor does the answer help the plaintiff. True, if the parties had without objection gone to trial upon the pleadings, it might perhaps have been thereafter too late to object. It may be that they would have been held bound by the issues they had' once accepted and [521] tried, and been estopped to say that neither in the petition nor answer was there a sufficient statement of a cause of action to call for judicial determination. Plainly, there was a claim of title on both sides, and an allegation of possession on the part of the defendant, with a denial thereof on the part of the plaintiff. This cannot be deemed a case where the defect of the petition is cured by the allegations of the answer, for the allegation of the answer is of full title in defendant, based partially it is true upon certain tax deeds which may or may not be valid, but only partially upon such deeds, and is therefore an allegation inconsistent with the averment and claims of the petition, and if true entirely overthrows such petition. It seems to us therefore, that the objection was in time, and should have been sustained. For these reasons the judgment of the district court will be reversed, and the case remanded for further proceedings. As we cannot anticipate in what shape the case may be again (if at all) presented for trial, we shall not stop to examine the numerous tax-deeds offered in evidence, and the many questions arising thereon discussed by counsel in their briefs. W. W Guthrie, for defendant in error, in support of his motion for a rehearing, submitted: This motion is made upon the belief that the question of practice, upon which alone this court ordered a reversal, was not the full consideration to which this case was entitled, even should the court feel compelled to change what has been considered its former holdings upon such question of practice. It should be the policy of a supreme court to decide all questions necessarily involved in determining the case, which are contained in the record, at least when ordering a reversal; and rather to aid the final determination of controversies than to pass upon questions outside the merits of the controversy, and leave litigants in doubt-as to when their “day in court” shall end. In this case, while but one state of facts existed, each party, by his pleading, made an independent action for affirmatiye relief, and only the determination of both cases thus made could be an examination of the decision of that case presented in the record. Nuzum sued quia timet, standing on a full legal title, and the land vacant. Douglass answered, denying Nuzum’s case, and then by counterclaim sued quia timet, standing on a full legal title, and actual possession, and, as his title set up, (with proper exhibits) three several recorded tax-deeds. Nuzum by reply joined issue on thecase made, by Douglass. On trial, Nuzum tendered his patent in evidence, and proof of land being vacant, Douglass objected that the petition did not state a case, and over his objection the evidence was received. Douglass then offered evidence in support of his case, and which covers 100 pages of record, and Nuzum in rebuttal offered evidence. The district court found for Nuzum, and decreed that his title be quieted. [521] All the Justices concurring.