98 Wis. 419 | Wis. | 1898
It is claimed by the appellant that the com-
plaint does not state a good cause of action, within the general equity powers of courts in actions guia timet, in that the invalidity of the alleged hostile claim appears by the record, hence it does not constitute a cloud on the plaintiff’s title. For the purposes of this case that may be conceded. Moore v. Cord, 14 Wis. 213; Pier v. Fond du Lac, 38 Wis. 470. But sec. 3186,R. S. 1878, as amended by ch. 88,. Laws of 1893, has so enlarged the equity powers of the court as to give a remedy to any person having the legal title to lands against any other person setting up a claim thereto,, to test the validity of such claim, and provides that it shall be sufficient to aver in the complaint the nature and extent of the plaintiff’s estate in the land, describing it as accurately
It is claimed by the appellant, however, that the complaint does not state a cause of action because of a failure to allege, in the words of the statute, that the defendant makes some claim to the land. Manifestly, the statute does not require such an allegation. It merely provides that as to the ad- - verse claim it shall be sufficient to so allege. Clearly, if the facts constituting the adverse claim are alleged, it satisfies the statute. It is expressly provided that, in order to establish the fact that the defendant is setting up or making some claim to the land, ‘it shall be sufficient to introduce in evidence any instrument in ■ writing, theretofore at any time appearing of record, or the record thereof, or a duly-certified copy of such record, purporting to convey to, or otherwise affect in favor of, the defendant, the title to the land adversely to the plaintiff, or under or through which the plaintiff does not trace his claim or title.’ It would seem to follow, necessarily, that allegations which, if true, show the existence ■of a hostile claim of title, cannot be added to by alleging, as a conclusion, that the defendant is making such hostile claim. That proof of a sale of land on execution, on a judgment
By the Court.— The order of the circuit court overruling the demurrer to the complaint is affirmed.