—The complaint in this case alleged in substance that the plaintiff was the owner of certain real property; that the defendant claimed an interest therein аdverse to the plaintiff; that such claim was without right, and that the defendant had no right, title, or interest whatever in the property. There were other allegations ^hich will be noticed below. The prayer was, that defendant be required to set forth the nature of his claim, that it be adjudged to be void, and that defendant be enjoined from asserting it. Thе trial court found the above allegations to be true. Judgment was entered for the plaintiff, and the defendant appeals.
It is contended for the appellant, in the first place, that “an action to quiet title or to remove a cloud upon title will not lie where the facts alleged, if true, would not
Suits to have an instrument canceled, or adjudged to be void, were quite common in the old chancery practice, and cоnstituted one of the applications of the principle quia timet (2 Story’s Eq. Jur., sec. 701.) This suit is preserved by the Civil Code, which has the following provisions on the subject:—
“ Sec. 3412. A written instrument, in resрect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged and ordered to be delivered up or canceled.
“Sec. 3413. An instrument, the invalidity of which is apparent upon its face, or upon the face of another instrument which is necessary to the use of the former in evidence, is not to be deemed capable of causing injury, within the provisions of the last section.”
In this kind of action, therefore, it is expressly provided by statute that if the instrument is void upon its face, or when construed with another instrument with which it is necessarily cоnnected, the relief will not be granted. This provision is the embodiment in statutory form of an old and well-settled rule of equity." And as a matter of course, in order to obtain the relief it is necessary that the complaint should state a case within the rule. In the language of Sanderson, J., in Hibernia S. & L. Soc. v. Ordway,
“Sec. 788. An action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim.” (Compare sec. 254 of old Practice Act, Laws 1851, pp. 92, 93.)
The distinction between the two kinds of action is clear. They are different not merely in form (for we have no forms of action in the common-law sense), but in purpose. In the former case the proceeding is aimed at a particular instrument, or piece of evidence, which is dangerous to the plaintiff’s rights, and which may be ordered to be destroyed in whosesoever hands it may happen tо be. While in the latter, the proceeding is for the purpose of stopping the mouth of a person who has asserted or is asserting a claim to the plaintiff’s prоperty, ■whether such claim be founded upon evidence or utterly baseless. It is not aimed at a particular piece of evidence, but at the pretensiоns of an individual.
The statutory action to determine an adverse claim is an improvement upon the old bill of peace. The statute enlarges the class of cases in which equitable relief could formerly be sought in the quieting of title. It is not necessary, as formerly, that the plaintiff should first establish his right by an action at law. “ He can immediatеly, upon knowledge of the assertion of such claim, require the nature and character of the adverse estate or interest to be produced, expоsed, and judicially determined, and the question of title be thus forever quieted.” (Curtis v. Sutter,
The plaintiff, therefore, is not requirеd to set forth the nature of the defendant’s claim. (People v. Center,
It is argued for the appellant, however, that the complaint contains something beside the allegations above mentioned; that it is really a complaint to reform a deed, аnd that when so considered, both the complaint and findings are insufficient, because it is neither alleged nor found that the deed sought to be reformed embraced the рroperty in controversy.
The complaint, after the allegations above mentioned, proceeded to set forth the nature of the defendant’s claim. It alleged that said claim was founded on a mistake in the description of a deed. The mistake was this:
Now, if it had appeared that the land in controversy was included in the deed as made, so as to pass thereby, the plaintiff could not have maintained an action under the statute to determine an adverse claim. For it has been held that a mistake in the description of a, conveyance cannot be corrected in such an action. (Brewer v. Houston,
As above stated, it was not necessary for the complaint to set forth the nature of the defendant’s'claim. But the unnecessary allegations merely show that the defendant’s claim was based upon a harmless error of description, and do not change the character of the action.
We therefore advise that the judgment and order denying a new trial be affirmed.
Foote, C., and Vanclief, C., concurred.
The Court.—For the reasons given in the foregoing opinion, the judgment and order denying a new trial are affirmed.